text:
    Douglass, Appellant, v. New York Central & Hudson River Railroad Company.

      Negligence—Railroads—Master and, servant—Locomotive engineer—Defective appliance—Proximate cause.

    In an action by a locomotive engineer against his employer, a railroad company, to recover damages for personal injuries, it appeared that prior to the accident the oil pipe of the locomotive which plaintiff was running had burst at a point where it came out from -under, or through the jacket of the boiler near the smokestack. The pipe was used to carry oil from a reservoir inside of the cab to the valve upon the steam chest. In consequence of it having burst the oil ran out and the valve was not supplied with oil, but in order so to supply it the plaintiff while the engine was drifting down grade, having gone through the window of the cab, stepped upon the narrow footway alongside of the boiler, walked to a point near the steam chest and there stooping down, with a hand oiler poured the oil into the valve. Having done so he returned to the cab and just as he reached its entrance his foot slipped, and he fell forward into it, striking the water gauge inside of the cab. By the blow thus given the gauge was thrown open, causing boiling water and superheated steam to pour into plaintiff’s shoe and seriously injured him by burning his foot. Held, that the defective pipe was not the proximate cause of the accident, and that binding instructions for defendant were proper.

      The injury must be the natural and probable consequence of the negligent act without probable foresight, and if the facts as to the cause of the injury are not disputed the question of proximate cause becomes one of law for the determination of the court.
    Mitchell, C. J., dissents.
    Argued April 19, 1904.
    Appeal, No. 63, Jan. T., 1904, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1903, No. 129, on verdict for defendant in case of Wilbur F. Douglass v. New York Central and Hudson River Railroad Company, Lessee.
    Before Mitchell, C. J., Dean, Bbown, Potteb and Thompson, J J.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.
    At the trial binding instructions were given for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      David L. Krebs, of Krebs $ Liveright, with him Harris $ Urey, for appellant,
    cited on the question of proximate cause : Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293, 297 ; West Mahonoy Twp. v. Watson, 116 Pa. 344, 350 ; South-Side Passenger Ry. Co. v. Trich, 117 Pa. 390, 399.

      Thomas H. Murray and Hazard Alex. Murray, with .them James P. O'Laughlin, for appellee,
    cited on the question of proximate cause: Penna. R. R. Co. v. Hope, 80 Pa. 373; Haverly v. State Line, etc., R. R. Co., 135 Pa. 50; Thomas v. Central R. R. Co., 194 Pa. 511; Quinlan v. Philadelphia, 205 Pa. 309 ; Webster v. Monongahela River Consolidated Coal & Coke Co., 201 Pa. 278; Penna., etc., Canal & R. R. Co. v. Lacey, 89 Pa. 458; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122; Fairbanks v. Kerr, 70 Pa. 86; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316 ; Potter v. Gas Co., 183 Pa. 575, 589.
    May 2, 1904:
   Opinion by

Mb. Justice Thompson,

As the injury received by appellant and for which this suit was brought was not immediately caused by a defect in the machinery about which he had been working he was not entitled to recover. Appellant was, at the time of the accident, in the employment of the appellee as a locomotive engineer and had been so employed for upwards of ten years. The oil pipe of the locomotive which he was then running had burst just at the point where it came out from under or through the jacket of the boiler near the smokestack. This pipe was used to carry oil from a reservoir inside of the cab to the valve upon the steam chest. In consequence of it having burst the oil ran out and the valve was not supplied with oil, but in order so to supply it the appellant while the engine was drifting down grade, having gone through the window of the cab, stepped upon the narrow footway alongside of the boiler, walked to a point near the steam chest and there stooping down, with a hand oiler poured the oil into the valve. Having done' so he returned to the cab and just as he reached its entrance his foot slipped, and he fell forward into it, striking the water gauge inside of the cab. By the blow thus given the gauge was thrown open, causing boiling water and superheated steam to pour into appellant’s shoe and seriously injured him by burning his foot. The injury so received was not in consequence of any defect of the pipe. He had finished the oiling of the valve and upon his return to the cab, slipped at its entrance,- where he struck the water gauge and knocked it open. The heated water and superheated steam scalded his foot and this caused the injury. The proximate cause was the slipping on the foot board and the striking of the water gauge. The mere fact that he went out on the foot board to do the work of oiling the valve and was returning from it when the accident occurred cannot be successfully charged as the proximate cause, from the defect in the pipe in question. As-the facts as to the cause of the accident are not in dispute the question of the proximate cause of the same became one of law and not one for the determination of the jury. The test of the law in determining proximate cause is plain and clear, namely whether the injury is the natural and probable consequence of the .negligence. Assuredly the defect in the pipe did not cause the appellant to slip, it did not throw him into the cab, it did not throw open the water gauge and it did not cause the boiling water and superheated steam to scald him. The place where the injury was caused was in the cab, in one part of the locomotive and the defect in the pipe was near the cylinder in another part of it. This defect was not the cause of the accident and was not so connected with it as to be its proximate cause and the fact of its defect was not linked with other facts so as to create a natural whole. It was not so connected and the chain of facts so essential to establish a proximate cause was clearly broken. This defect and the cause of the accident were distinctly independent, and the former cannot be said to have been the natural and probable cause of the injury. Assuredly the appellee could not have probably foreseen that in consequence of the defect in the pipe in question that appellant would slip on the board near the cab, that he would fall into it, that he would strike the water gauge, that the blow would open the gauge and that the heated water and superheated steam would rush into his shoe and scald him. If not the law will not pronounce such defect in the machinery the proximate cause of the injury. It is not the natural and probable consequence of such defect that he should slip on the board as he did and this mere possibility cannot be made the ground of liability.

Mr. Justice Gheen, in South-Side Passenger Railway Co. v. Trich, 117 Pa. 390, said: “ It was certainly not a natural consequence of a person being upon the street that he would be struck by a runaway horse. Nor is there the slightest reason for saying that it would be a probable consequence. The utmost that can be said would be that such a consequence might possibly happen. But things or results which are only possible cannot be spoken of as either probable or natural. For the latter are those things or events- which are likely to happen and which for that reason should be foreseen. Things which are possible may never happen, but those which are natural or probable are those which do happen and happen with such frequency or regularity as to become a matter of definite inference. ■ To impose such a standard of care as requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared.”

The rule is well settled that the injury must be the natural and probable consequence of the negligent act without probable foresight, and if the facts as to the cause of the injury are not disputed the question of proximate cause becomes one of law for the determination of the court: West Mahonoy Township v. Watson, 116 Pa. 344; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293.

As the defect in the pipe in this case was not the proximate cause of the injury, it is unnecessary to discuss whether appellant, having continued to work in consequence of a threat of discharge, assumed the risk of it as one obvious and incidental to his employment.

The judgment is affirmed.

Mitchell, C. J., dissents.


source: Caselaw Access Project

author: Mb. Justice Mesteezat,

license: Public Domain

text:
    Pierce v. Barney, Appellant.

      Statute of limitations'—Adverse possession—Vendor and vendee.

    A vendor of land in possession does not hold adversely to his vendee, until he does some unequivocal act, the knowledge of which is brought home to his vendee tending to show that he held the premises adversely to the latter.

      Statute of limitations—Adverse possession—Minerals.

    A person who secretly and clandestinely enters upon coal through an opening in land other than that in which the coal is situated, cannot by any continuous mining of the coal through such opening acquire title by adverse possession against the owner. Such an entry will confer no right on 'the wrongdoer until his entry is, or by the exercise of due diligence might be, discovered by the owner.

      Appeals—Assignment of errors-—Refusal of nonsuit.

    The refusal to grant a nonsuit is not the subject of review on appeal.
    Argued April 11, 1904.
    Appeal, No. 102, Jan. T., 1903, by defendants, from judgment of C. P. Luzerne Co., Oct. T., 1900, No. 1157, on verdict for plaintiff in case of James B. Pierce and John J. Shonk v. George Barney et al.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Ejectment for land in Plymouth township. Before Wheaton, J.
    The facts appear by the opinion of the Supreme Court.

      The court gave binding instructions for the plaintiffs.
    Verdict and judgment for plaintiffs. Defendants appealed.

      Errors assigned among others were (1) refusal of nonsuit; (4) in giving binding instructions for plaintiff.

      W II. Hines, with him E. A. Lyneh, for appellants.
    The statute of limitations runs in favor of a grantor in a general warranty deed, who refuses to deliver possession to the vendee and remains for the statutory period in open, continuous and adverse possession of land: Milnes v. Van Gilder, 197 Pa. 347.
    In determining the sufficiency of an adverse possession, much depends upon the character and situation of the land in question, the purposes for which it is adapted and for which it is used: Sedgwick & Wait on Trial of Title to Land, 574; Lackawanna Iron & Coal Co. v. Fales, 55 Pa. 90; Douglas v. Irvine, 126 Pa. 643; Thompson v. P. & R. Coal & Iron Co., 133 Pa. 46 ; Mercer v. Watson, 1 Watts, 330 ; Hasson v. Klee, 168 Pa. 510.

      J. Q. Oreveling, with him J). L. Crevéling and O. W. McAlarney, for appellee.
    May 9, 1904:
   Opinion by

Mb. Justice Mesteezat,

In his charge to the jury, the learned trial judge discussed all the questions of fact and law raised in this case and fully vindicated the correctness of his conclusions. There was no question of fact for the jury, and, as the law applicable to the case was against the defendants, the court very properly directed a verdict for the plaintiffs.

As clearly demonstrated by the learned judge in his charge, the plaintiff established on the trial of the cause a complete paper title to the premises in dispute. To meet and overthrow this title the defendants attempted to show title in themselves to the land by adverse possession. The sufficiency of the evidence entitling the defendants to have this question submitted to the jury is, as stated by their counsel, the question for consideration on this appeal. Charles Barney conveyed to Wads-worth in August, 1829. On April 24, 1830, he conveyed to John Bennett the one half of the coal under lots 15 and 16, excepting therefrom the two acres conveyed to Wads-worth; and in August, 1832, he conveyed the other half of the coal under the lots to Henderson Gaylord, “excepting and reserving the two acres heretofore conveyed by the grantor to Tertius Wadsworth.” In each of these deeds, it will be observed, there is a clear and distinct recognition of Wadsworth’s title to the premises in dispute. Charles Barney died in 1846, fourteen years after he had executed and delivered the Gaylord deed and hence, as observed by the trial judge, “ he could not have acquired title by adverse possession during his lifetime no matter what the character of his possession was.”

Barney was Wadsworth’s vendor and his possession of the premises was Wadsworth’s possession until Barney did some unequivocal act, the knowledge of which was brought home to his vendee, tending to show that he held the premises adversely to Wadsworth: Ingles v. Ingles, 150 Pa. 397 : Olwine v. Holman, 23 Pa. 279. There was nothing in the evidence and no competent testimony was offered on the trial that would warrant the jury in finding any acts by Barney hostile to W ads worth’s title, nor indicating his intention to hold the premises against his vendee. Nor can appellants sustain their title by the alleged adverse possession of Henry Barney, who held lots 15 and 16 as devisee under the will of his father, Charles Barney. The acts of ownership exercised by Henry Barney over the two acres of land in dispute, alleged to be adverse and hostile to the possession of the appellees’ predecessors in title, are clearly insufficient, as pointed out by the trial judge, to sustain a title by adverse possession for the length of time required by the statute. Not only is this true, but like his father, Henry Barney made a distinct recognition of the Wadsworth title in the grant of his interest in lots 15 and 16 by deed dated April 22, 1867, by “ reserving and excepting two acres sold by Charles Barney, the father, to Tertius Wadsworth by deed dated 6th of August, 1829, recorded in deed book No. 26, p. 271.”

It is further contended by the appellants that Thomas Appleton acquired title to the premises in dispute by adverse and hostile possession for a period of time more than twenty-one years immediately prior to the bringing of this suit. But the character of his possession was not such as to sustain this contention. He had a scrambling, if any, possession of the surface. He and his wife testify that he began to mine' coal for his own use in the old Wadsworth coal beds in the winter of 1874, and continued the mining for a short period each year till this suit was brought, except during the years 1876 and 1879. There was no opening to this coal through the surface of the two acre tract, and Appleton obtained access to it for mining purposes, as he testifies, through a drift or tunnel, the mouth of which was a small opening on the side of a ravine more than 300 feet distant and on the lands of other parties. There was coal on both sides' of this drift from its mouth to the premises in dispute.

He who successfully defends his title to land by adverse possession must show that the possession was actual, continued, visible, notorious, distinct and hostile for the space of twenty-one years: Hawk v. Senseman, 6 S. & R. 21; Mercer v. Watson, 1 Watts, 330. He must keep his flag flying in a visible and hostile manner: Plummer v. Hillside Coal & Iron Co., 160 Pa. 483. Appleton’s possession of this coal, according to his own testimony, was neither open, visible nor notorious, such as is required in adverse possession to establish a valid title to land. His access to the coal was obtained through a small opening into a mine on the adjacent premises and several hundred feet distant from the land of the appellees. The latter, therefore, had no reason to infer or believe he was entering upon their premises or had any intention of mining or removing the coal under the two acres of land. On the contrary, the only reasonable inference from his action was that his purpose in entering the mine on the adjacent premises was to remove the coal from that mine, and that he confined his mining operations within the territorial limits of the mine which he entered. His manner of entering the appellees’ premises was, therefore, neither open, visible nor notorious, and hence was not of such a character as would suggest to the appellees that their possession of the coal under the land was being invaded by an adverse and hostile claimant. Such entry was covert and clandestine, and gave no notice to the appellees of a hostile claim to their premises, nor put them upon inquiry as to whether their coal was being mined by Appleton. There was nothing hi Appleton’s conduct that would lead the appellees to believe that he intended to invade their premises and remove their coal. In Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66, Williams, J., delivering the opinion uses the following language pertinent to the case in hand: “ If he would acquire any part of the mineral he must make his entry upon, and maintain his possession within, the limits of the mineral estate, for the requisite period of time in an open, notorious, exclusive and continuous manner. A covert or clandestine entry will not do. Such an entry will confer no right on the wrongdoer until his entry is, or by the exercise of due diligence might be, discovered by the owner. Until then the owner cannot know that his possession has been invaded. Until he has, or ought to have, such knowledge he is not called upon to act, for he does not know that action in the premises is necessary, and the law does not require absurd or impossible things of anyone. Possession to be adverse must be open as well as continuous.”

The refusal to grant a nonsuit is not the subject of review on appeal, as we have repeatedly decided, and hence the first assignment need not be considered.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Importers’ and Traders’ National Bank of New York, Appellant, v. Lyons.

      Bes judicata—Attachment execution■—Partnership.

    Where an attachment execution is issued against an alleged interest in a partnership, and an issue is framed and tried, and judgment entered against the attaching creditor, and an appeal from the judgment is non prossed, such judgment is res judicata as to an issue raised on a subsequent attachment execution in which the same parties are involved, and the same alleged partnership interest is sought to be taken.
    Argued March 31, 1904.
    Appeal, No. 92, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1899, No. 760, on verdict for garnishee in case of Importers’ and Traders’ National Bank of New York v. J. Harry Lyons, Defendant, and Samuel Simpson and Samuel Simpson trading as Samuel Simpson & Company, Garnishee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.

      Attachment execution against an alleged interest in a partnership.
    At the trial the court directed a verdict in favor of the garnishee.
    The court refused a new trial, Beitler, J., filing the following opinion:
    On June 19, 1899, the bank obtained judgment against J. Harry Lyons, for 157,375.77, and issued an attachment sur judgment against Samuel Simpson and Samuel Simpson trading as Samuel Simpson & Company and others, which attachment was regularly served.
    On June 21, interrogatories to Samuel Simpson & Company, six in number, were filed. To these, answers were filed on July 8. On July 15, additional interrogatories, 29 in number, were filed, and on July 27, answers to these were filed. On August 25, the third series of interrogatories were filed numbered from 36 to 51, and answers thereto were filed September 13. On September 8, the plaintiff took a rule on the garnishee for judgment, and on September 19, the court entered judgment against the garnishee for $5,441.52. The next day the garnishee appealed to the Supreme Court (January term, 1899, No. 351).
    On September 22, Samuel Simpson, individually, and trading as Samuel Simpson & Company, filed his plea with notice of special notice.
    The Supreme Court decided the case, in an opinion by Mr. Justice Brown, April 23, 1900 (195 Pa. 479).
    Simpson in his answers set out that lie had been notified that Elizabeth J. Lyons (mother of J. Harry Lyons) claimed to be the party interested as partner with him, but that he disputed her claim, and that his contention was that whatever he owed was due to J. Harry Lyons, but that if compelled to pay the bank the amount of the judgment against him he would be “ exposed to the danger of being compelled to meet her claim and of being compelled, if the same shall be decided in her favor, to pay her what I shall have been compelled to pay under such judgment to the plaintiff in the present attachment execution.” The Supreme Court decided that he was a mere stakeholder, and entitled to the protection of the court, “ and a judgment should not have been rendered against him when there was a doubt as to the defendant’s title to the fund attached.”
    The Supreme Court further said: “If we were to sustain the contention of the appellee that, at the time the attachment was issued, Lyons was a partner, we would be compelled to summarily dispose of this appeal by reversing the judgment against the garnishee: for, if the defendant was a partner, and there was no settled account between him and the garnishee, which is not pretended, no attachment could lie: Knerr v. Hoffman, 65 Pa. 126. The remedy would be under the Act of April 8, 1878, P. L. 65. But we will not summarily so dispose of it.”
    Judgment was reversed, and the record remitted “that the cause may proceed to issue and trial in due course of law, to determine what the real relations between the defendant and the garnishee were and to ascertain the rightful claimant of the funds attached.”
    Pending the appeal in the Supreme Court Elizabeth J. Lyons on October 26, 1899, filed a bill in equity (in C. P. No. 1 of September term, 1899, No. 498) against J. Harry Lyons and Samuel Simpson, wherein she alleged that she formed a partnership with Samuel Simpson, which continued until March 18, 1899, at which time there had accumulated a large amount of undivided profits.
    To the bill Simpson answered that he had never entered into any partnership with either Elizabeth J. Lyons or J. Harry Lyons; that he had, in February, 1896, begun the business of importing and selling goat skins “ of which business the said J. Harry Lyons was to be and was, until he left my employment on March 18,1899, the general manager, his compensation being one half the net profits of the business.”
    The answer denied that the plaintiff was entitled to any account from Simpson.
    J. Harry Lyons filed answer admitting that Elizabeth J. Lyons, his mother, was Samuel Simpson’s partner.
    On these pleadings it appeared that Simpson admitted that one half of the profits did not belong to him. He asserted that they belonged to J. Harry Lyons as compensation as manager. J. Harry Lyons and his mother, Elizabeth J. Lyons, asserted that they belonged to the latter as a partner with Simpson. The issue thus made up came on for trial before Judge Brégy, and on May 22, 1900, he filed his adjudication finding that Mrs. Lyons was Simpson’s partner and entered a decree that the matter be referred to Benjamin Daniels, Esq., to state an account. From this decree Samuel Simpson appealed (S. C. January term 1900, No. 298). In an opinion by Mr. Justice Mitchell, May 6, 1901, the decree was affirmed, but modified, the court saying: “ The learned judge below found the fact of a partnership between plaintiff and the defendant Simpson under the name of Samuel Simpson & Company. There was testimony on which such finding was based, and we have not been convinced that we should reverse it. But it was a finding of a partnership as between the parties, and it by no means follows that a partnership was established as against creditors. The complainant’s son, J. Harry Lyons, was burdened with debts from previous business operations which prevented his engaging in business in his own name. The arrangement with defendant, whatever it was, was intended to secure to J. Harry Lyons all the benefits of a partnership without its liabilities to his creditors. Whether it was legally valid for that purpose as against such creditors, could only be determined by proceedings to which the creditors were parties. The decree therefore in the suit between plaintiff and defendant that the arrangement was valid and that appellant was answerable as a partner to complainant, was not an adjudication as against the attaching creditor, and if the latter should be successful in his suit appellant would be compelled to pay twice. From this risk he has a right to be protected, and the fact that the attachment was based on information given by him did not take away that right.”
    The modification of the decree was thus stated: “The decree for an account is affirmed, but is modified so that there shall be no final decree for payment of any balance found due by appellant until the attachments now pending against him as garnishee shall have been finally determined, and in case the plaintiff, after due notice shall neglect or refuse to appear in such attachment proceedings and defend her title, and there shall he a recovery against the appellant, then with leave to the appellant to apply to the court to open the decree and relieve him against any double liability in such manner as equity may require.”
    In the presentation of the evidence before Judge Bbbgy this appears:
    February 27, 1900.
    Mr. Crawford files of record the following agreement:
    And now, February 9, 1900, it is agreed by and between the parties to the above suit, that the testimony taken on the motion for special injunction and receiver shall be read in evidence upon the trial of the above cause on the equity trial list, with like effect as if then duly taken, and with a right to either party to recall for further cross-examination any of the witnesses to the said testimony and to offer any additional testimony which they may desire and which may be competent.
    And it is further agreed by and between the said parties that there are certain undisputed facts in the case, as follows:
    1. That the amount of cash in the hands of Samuel Simpson, trading as Samuel Simpson & Company, and accounts which he takes as cash on his own account, with interest to December 1, 1899, is $23,344.69, of which he is entitled to one half absolutely.
    2. There are also the following amounts due Samuel Simpson and Company, to wit: Eberhardt & Company, $8.30; Buchanan’s American Tea Company, $98.31; Charles Landell, $300 ; Steamship “ Kiright Bachelor,” $806, bf which Samuel Simpson is entitled to one half absolutely.
    3. That the remaining asset of Samuel Simpson & Company is the indebtedness of A. L. P. Duncan & Company, March 18, 1899, which the plaintiff claims to be $21,844.79, with interest from March 18, 1899, and the defendant claims that the said amount is only $15,992.57, with interest from March 18, 1899.
    4. That the annexed is a copy of the ledger account in the books of Samuel Simpson of his dealings with A. L. P. Duncan & Company, since March 18,u 1899, showing the dates and amounts of goods sold by Samuel Simpson to A. L. P. Duncan & Company and the dates and the amoxmts of the receipts by Samuel Simpson from A. L. P. Duncan & Company.
    5. That the defendant claims to deduct from that half of the cash in his hands belonging to some one other than himself, that is, to the plaintiff, her son of his attaching creditors.

      (1) The amount of a promissory note now in the defendant’s possession, made by Warren M. Orr to the order of John Harry Lyons and not indorsed, for $150, dated November 9, 1898, at six months.
    (2) One half of the sum of $12,309.94, being the aggregate amount of the additional two and one half per cent paid by Samuel Simpson & Company to J. B. Moors & Company, of Boston, as shown in the said testimony, to which two claims of deduction the plaintiff denies that the defendant is entitled, and it is distinctly understood and agreed that this agreement shall in no wise prejudice, impair or in any wise affect the said claims of the said Samuel Simpson and of the plaintiff respectively.
    Emil Rosenberger,
    Attorney for Samuel Simpson.
    Crawford, Lottghlin & Dallas,
    For Elizabeth J. Lyons and J.
    Harry Lyons.
    On December 6, 1899, the bank issued a second attachment against Simpson, and on June 13, 1900, a third attachment. On July 11, 1900, Simpson pleaded to these two attachments.
    On November 7, 1900, the issue framed between the bank and Simpson, garnishee on the third attachment, came on for trial before Judge Brega. He excluded the paper just referred to, and upon the conclusion of the plaintiff’s evidence directed a verdict for the garnishee saying that if J. Harry Lyons was Simpson’s partner “ then the testimony shows, I think, that there was no settled account between them of all their affairs,” and the account between them, he held, could not be settled in the trial on the attachment.
    A motion for a new trial having been refused, the plaintiff on May 7,1901, took an appeal (S. C. January term, 1901, No. 185), which on January 6,1902, was non prossed.
    On March 13, 1902, the bank issued a fourth attachment against Simpson, and on March 15, 1903, a fifth. '
    The matter of the equity suit, Elizabeth J. Lyons v. J. Harry Lyons and Simpson, being before the master, he took testimony and reported that Elizabeth J. Lyons was entitled to a decree against the defendant, Samuel Simpson, for $35,024.69.

      From this decree both Mrs. Lyons and Simpson appealed (S. C., January term, 1903, No. 69 and No. 73).
    In Simpson’s Appeal the Supreme Court modified the decree reducing the amount due by Simpson to Mrs. Lyons to $28,486.63, and saying, in an opinion by Mr. Justice Potter : “ When the case was here before, upon an appeal from the interlocutory decree, it was ordered that there should be no final decree for the payment of the balance found due by Simpson until the attachment then pending against him as garnishee of J. Harry Lyons had been finally determined. We understand those proceedings have now been disposed of, but that during the accounting before the master, another attachment was served upon the defendant Simpson as garnishee of J.- Harry Lyons. This attachment is still undetermined. Payment under the decree of the court below should, therefore, not be required until the attachment now pending is determined or until the defendant Simpson is properly protected against any liability thereunder by a satisfactory bond of indemnity.”
    In Mrs. Lyons’s Appeal, the assignments of error were overruled, and the appeal dismissed. The two opinions were filed July 9,1903 (207 Pa. 7).
    Subsequently the Supreme Court modified the decree in the Simpson Appeal, 207 Pa. 13; and on December 14, 1903, this court entered a final decree in favor of Mrs. Lyons fixing the amount to be paid to her by Simpson, as directed by the Supreme Court, at $30,998.67.
    The litigation at this date had resulted in a decree in Mrs. Lyons’s favor in equity proceedings wherein she was plaintiff and her son, J. Harry Lyons, and Simpson were defendants. The third attachment against Simpson on the judgment by the bank against J. Harry Lyons had been tried and had resulted in a judgment for the garnishee.
    Acting on the opinion in 195 Pa. 479, the bank, on January 10,1901, issued a writ of fieri facias and took in execution and sold the interest of J. Harry Lyons in the partnership of Samuel Simpson & Company and purchased the same. The Act of April 8,1873, P. L. 65, provides that “ the purchaser at-such sale shall thereupon have a right to compel a settlement of the partnership accounts of such partnership by a proceeding in equity and to determine and receive the interest of said judgment debtor or debtors in the partnership.”
    Thereupon on February 16,1901, the bank as the purchaser of the interest of J. Harry Lyons in the partnership of Simpson & Company filed a bill in equity against J. Harry Lyons, Elizabeth J. Lyons, the Real Estate Title Insurance and Trust Company, and Samuel Simpson and Samuel Simpson trading as Samuel Simpson & Company, and Samuel Simpson lately trading with J. Harry Lyons under the firm name of Samuel Simpson & Company.
    The bill prayed, inter alia, that an issue be raised, to be tried by a jury to determine whether J. Harry Lyons was a partner of Samuel Simpson in the business of Samuel Simpson & Company, and to ascertain what moneys are in the hands of Samuel Simpson belonging to J. Harry Lyons and that the same be paid fo the bank.
    To the bill the Title Company demurred; the other defendants answered. On December 10, 1901, the case being on the equity trial list, the bill was dismissed for want of prosecution, the entry made by the trial judge (Judge Brbgy), being: “ This being the day fixed for the trial of the case, the plaintiff not appearing or showing any reason for a continuance, the bill is dismissed for want of prosecution.”
    The bank took a rule to strike off this order which on December 23, 1901, this court discharged. Then the bank filed exceptions, and on January 22, 1902, these were dismissed, the order being: “ This cause coming on to be heard upon exception by the plaintiff to the order made by the Honorable F. Amedee Brbgy, December 10,1901, entering a decree that the bill be dismissed for want of prosecution, and the plaintiff not appearing the exception is dismissed and the plaintiff’s bill of complaint is also dismissed.”
    At this time there were still two attachments undisposed of, those issued on June 19, 1899, and December 6, 1899. On March 17, 1902, the bank suffered voluntary nonsuits as to these.

      Error assigned was in entering judgment for garnishee.

      Jamos W, M, Eewlin, for appellant.

      John Cr. Johnson, with him Emil Rosenberger, for appellee.
    May 9, 1904:
   Opinion by

Mr. Justice Mestrezat,

In an elaborate opinion refusing a new trial the learned judge of the court below has clearly and fully stated all the facts of this litigation from its inception in June, 1899, when the plaintiff obtained a judgment against J. Harry Lyons, until the entry of the order discharging the rules for a new trial in this case on the issues framed on the fourth and fifth attachment executions issued on the judgment. Five attachment executions were issued on this judgment against the same garnishees, who were Samuel Simpson individually and trading as Samuel Simpson & Company. The first attachment was issued on the date the judgment was obtained in June, 1899, and the last, on March 18,1903. The money or effects sought to be reached in the several attachments were the same, viz: the interest of J. Harry Lyons, the defendant, in the firm of Samuel Simpson & Company. The issue framed on the third attachment, issued June 13, 1900, was tried in November, 1900, before Judge Bregy. In that case it appeared that there had been no settlement of the partnership accounts of the firm of Samuel Simpson & Company, and the trial judge directed a verdict for the garnishee. From the judgment entered on that verdict, the plaintiff took an appeal which was non prossed in this court on January 6,1902.

On the trial of the present issues, framed on the fourth and fifth attachments, the plaintiff attempted to retry the question raised and adjudicated against it in the action tried before Judge Bregy in November, 1900. In that case the plaintiff bank alleged that the defendant was a partner in the firm of Samuel Simpson & Company, and that an account had been stated showing an indebtedness to J. Harry Lyons by the firm. In the present case the plaintiff attempted to show the same facts by the same evidence, and further that the judgment in the third attachment case had been obtained by collusion and fraud. The court below excluded such evidence as was offered to sustain the issue disposed of on the trial of the third attachment, arid there was no sufficient evidence produced at the trial of any collusion or fraud in obtaining the former judgment. It was, therefore, clearly the duty of the trial judge to direct a verdict for the garnishees. There was no offer by the plaintiff to show that any money or effects of the defendant had come into the hands of the garnishees since the entry of the judgment in the third attachment case. The plaintiff offered to show by Samuel Simpson when on the witness stand that, prior to the trial on the third attachment, the witness had prepared a statement of the partnership affairs which was made the basis of the agreement of February 9, 1900, between Mrs. Lyons, J. Harry Lyons and Samuel Simpson. This was objected to and properly excluded. In commenting upon this offer in his opinion refusing a new trial, the learned judge says: “ This was for the purpose of showing that in fact there had been a settlement of the partnership accounts between J. Harry Lyons and Samuel Simpson, the witness. . . . The agreement made was in the equity suit wherein Mrs. Lyons was plaintiff. It was not an agreement that Simpson owed J. Harry Lyons, as his partner, any stated and agreed amount. It was an admission that there were certain undisputed facts, among them, that Simpson had in his hands certain sums of money, one half of which he admitted did not belong to him. The admission was made in a suit wherein Mrs. Lyons was asserting that the one half that Simpson did not claim belonged to her. The result of that suit was a decree in her favor, an account stated by the master, revised and reduced by the Supreme Court and then the amount further modified. In no sense can the agreement be taken to be a settlement of a partnership between J. Harry Lyons and Samuel Simpson.” We are of opinion that the trial judge was right in holding that the agreement of February 9, 1900, was not a settlement of the partnership accounts and hence if J. Harry Lyons had an interest in the partnership of Samuel Simpson & Company, the agreement did not make it subject to attachment execution.

The judgment in the third attachment case determined that there were no money or effects, subject to the attachment, in the hands of the garnishees on June 18, 1900, the date of the service of the writ, and that none had come into their, hands subsequent to that date and prior to November 7, 1900, the date of the trial. This was the matter in controversy between the parties, and hence the judgment determined the cause on its merits. This judgment became absolute and final when the appellant bank, the attaching creditor, failed to prosecute the appeal subsequently taken by it to this court. If the trial court erred in any of its rulings or in directing a verdict for the garnishees, the plaintiff, who was the appellant there and is the appellant here, had the opportunity to have the error corrected by having the judgment reversed in this court. The judgment in that case, therefore, must be regarded as conclusive between the parties as to the merits of the cause of action involved in the case. Here, as we have observed, we have the same cause of action and the same parties, the only additional averment by the appellant being the allegation of collusion and fraud in procuring the former judgment, but which had no evidence on the trial to support it. We are of opinion that the question involved in this issue is the same as that determined by the judgment on the third attachment and is therefore res judicata.

The judgment is affirmed.


author: Mb. Justice Mestbezat,

text:
    Smoulter v. Boyd, Appellant.

      Waters—Nonnavigable lake—Deeds—Metes and bounds.

    The rule that a grant of land bordering on a nonnavigable or private stream extends ad filum medium aqua, does not apply to a nonnavigable lake where land covered by a portion of the waters of the lake,, is described in the owner’s deed by course and distances with the adjoinders, but without any call for the lake, or the bank or shore of the lake as a boundary. In such a case the fact of ownership of a portion of the bed of the lake does not give to the owner of such portion the right to use the waters of the entire lake for boating purposes ; and the owner of the remainder of the bed of the lake may construct and maintain a boom along the boundaries mentioned in the deeds so as to protect his exclusive ownership.
    Argued April 11, 1904.
    Appeal, No. 255, Jan. T., 1903, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1900, No. 10, on bill in equity in case of John Smoulter et al. v. Aaron Boyd.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts appear by the opinion of tbe Supreme Court.

      The court entered the following decree :
    That for the purposes of boating and sailing the plaintiffs shall have the right to enjoy the waters of the whole lake.
    That the plaintiffs’ conveyances carry their title to the center of the lake, and therefore the boom erected and maintained by the defendant must be removed by him at his own expense.

      Error assigned was the decree of the court.

      I). L. Rhone and R. B. Sheridan, with them John T. Lenahan, for appellant.
    We contend that under the undisputed facts in the case, and the findings of the court, it was error to apply the rule that appellees’ title extended beyond the lines of her conveyance: Rockwell v. Baldwin, 58 Ill. 19; Child v. Starr, 4 Hill (N. Y.), 369 ; Hague v. Wheeler, 157 Pa. 324; Westmoreland, etc., Nat. Gas Co. v. DeWitt, 130 Pa. 235; Fulmer v. Williams, 122 Pa. 191.
    The fact .that a man is the owner of an adjoining piece of property, be it land or water, does not confer a right to trespass on the land or water of his neighbor: Baylor v. Decker, 133 Pa. 168.
    The appellees cannot claim the right to boat and sail over the entire water of the lake as appurtenant to their land: Bigler v. Antes, 21 Pa. 288; Hall v. Lacey, 3 Grant, 264; Grand Rapids City v. Powers, 89 Mich. 94 (50 N. W. Repr. 661); Hart v. Hill, 1 Wharton, 124; Beckman v. Kreamer, 43 Ill. 447; Lembeck v. Nye, 47 Ohio, 336 (24 N. E. Repr. 686); Ledyard v. Ten Eyck, 36 Barbour, 102; Clute v. Fisher, 65 Mich. 48 (31 N. W. Repr. 614).

      John MeGahren, with him Joseph A. Mulhern, for appellee.
    The property in the water of an inland lake, whose bed is owned by two or more, acquired at different times and from different persons is indivisible, and all the proprietors are entitled to an equality of rights therein for the purposes of boating and sailing: Runnels v. Bullen, 2 N. H. 532; Gould on Waters, 395.; Mayor, etc., v. Comrs. of Spring Garden, 7 Pa. 348; Hoy v. Sterrett, 2 Watts, 327.
    May 9, 1904:
   Opinion by

Mb. Justice Mestbezat,

Lily lake, also known as Long pond and Beach pond, is a nonnavigable body of fresh water, rather oval in shape, about one mile long and, at its greatest width, about one half mile wide. It lies upon the mountain, midway between Wilkes-Barre and Hazleton, in Conyngham township, Luzerne county. By sundry conveyances from the commonwealth and its grantees, made at different times from 1847 to 1895, Aaron Boyd, the defendant, became the owner in fee of six tracts of land of a total area of 215 acres. The description of the land in the several conveyances was of the usual character, giving the courses and distances, also the monuments and the names of the owners of the adjoining lands. By these several purchases,” as found by the trial judge, “ Mr. Aaron Boyd became the owner of the bed of the lake and all the land contiguous thereto excepting five acres, purchased by deed in fee simple from Elias Slusser by Molly Wormser, one of the plaintiffs. This five acres is situate at the west end of the lake, wooded, and includes in a triangular shape, with its base upon the shore, about one acre and a fourth of the bed of the lake.” Schlosser, otherwise known as Slusser, conveyed the land to Mrs. Wormser by deed dated October 29, 1894, and therein it is described as follows : “ Beginning at a stone planted for a corner on line of the warrantee name of tract of James McNeal and corner of Elias Slusser’s land, thence along land of Elias Slhsser south sixty-two degrees east seventy perches to a stone a corner on line of a tract of land in the warrantee name of Susannah Beach, now Aaron Boyd, thence along land of the same north seventeen degrees west twenty-four perches to a stake on the shore of Lily Lake (formerly known as Long Pond), thence the same course an uncertain distance (App. 26) to a corner in said Lily Lake, thence the official draft calls for southwest twenty-eight perches to a stone formerly a black oak tree on the bank of Lily Lake, thence along the James McNeal tract south eighty-four degrees west thirty-four perches to the place of beginning; containing five acres of land on the shore or bank of Lily Lake and approximately two acres of Lily Lake.” This land was part of a larger tract formerly owned by one George B. Stackhouse, who in 1868 conveyed it to Charles B. Stack-house, one course in the description of which extends “to a corner in pond known as Beach Pond.” No other reference is made in the deed to the lake. The two subsequent deeds by which the title to the tract became vested in Schlosser, Mrs. Wormser’s grantor, contain the same description. The deeds conveying to Boyd the land adjoining this tract called for “ a corner in Long Pond ” which is the same as “ a corner in Beach Pond” in the Wormser deed. The lake is fed by springs all of which are on the land of defendant, and the small outlet of the lake is also on his land: There is no public highway, nor right in the plaintiffs to any private road, bordering on the la.ke.

The defendant’s predecessor in title built a dam at the outlet of the pond which was repaired by the defendant about the year 1887, by which fifty acres of his meadows outside of, and adjacent to, the water line of the lake were overflowed, and on which water lilies grew. About the same year the defendant erected a summer house and cottage at the outlet of the lake and constructed wharves and boat landings for the use of people who visited the place. The trial judge found “ that the lily meadow, the hiring of boats and the summer resort so established by defendant is of great value to him and is increasing in value as a popular resort because of defendant’s exclusive control over the boating, fishing and lily meadows.” The only access for the public to this resort is by the private road built by the defendant since 1890.

Shortly after Mrs. Wormser purchased her tract of land, she laid it out in twenty-eight lots, fronting an avenue running parallel with the lake. Between this avenue and the lake she made a park. Some of these lots were sold and conveyed to the other plaintiffs in this case, the deeds granting the same rights and privileges to the use of the lake as Mrs. Wormser had. Summer residences have been erected on several of these lots, boat landings have been built at the lake shore, and streets have been graded on the platted ground.

In 1895 Mr. Boyd built a boom of heavy logs fastened together at the ends by iron links, “ and thereon erected a barbed wire fence across the surface of the lake. This boom begins at the shore near the eastern corner of Mrs. Wormser’s land and follows the line between her land and Mr. Boyd’s land in a northerly course to the opposite shore, thereby, whilst not practically interfering with the flow of water, effectually and permanently excludes plaintiffs and all others from crossing to or from the eastern part of the lake.” In July, 1900, the plaintiffs filed this bill praying, inter alia, that the defendant be required to remove the boom from the said lake “ so as not to interfere with or obstruct the plaintiffs in their use of said lake for boating, fishing and as a place of recreation, and that he be restrained from enlarging or extending said boom or in any manner interfering with or obstructing the plaintiffs, or any of them, in their lawful use of said lake for the purposes aforesaid.” The bill and answer presented several questions for consideration, but on the trial they were all abandoned excepting the right of the plaintiffs to boat for pleasure upon the whole lake. The learned trial judge found in favor of the plaintiffs and entered the following decree :

“ That for the purposes of boating and sailing the plaintiffs shall have the right to enjoy the waters of the whole lake.

“ That the plaintiffs’ conveyances carry their title to the center of the lake, and therefore the boom erected and maintained by the defendant must be removed by him at his own expense.”

From this decree the defendant has appealed.

The learned trial judge fell into error in holding that Mrs. Wormser was a riparian proprietor of the land adjacent to Lily Lake, which extended her title to the center of the lake and therefore gave her the right to use the waters of the entire lake for boating purposes. It is no doubt the settled law of this state that a grant of land bordering on a nonnavigable or private stream extends ad filum medium aquae. The conveyance to such grantee by one who owns the land adjacent to and under the stream carries the grantee’s title beyond the water line of the stream and gives him the ownership of the soil to the middle of the current. This is grounded on the presumption that such was the intention of the parties to the grant. But the facts of this case, which we have fully stated, do not warrant the application of this rule in the disposition of the question presented by this record. The soil covered by the waters of the lake or pond was susceptible of private ownership and the title to it was, by sundry conveyances from the commonwealth and its grantees, vested in Mrs. Wormser and the defendant. The rights of the parties to this controversy must be determined by the grants contained in their deeds. Mrs. Wormser’s title cannot be so construed as to extend it .to the center of Lily lake under the rule that such is the intention of the parties to grants of land bordering upon nonnavigable streams. Her grantor, Elias Schlosser, did not own the land to the middle of the lake. In his deed to Mrs. Wormser the quantity of land conveyed, in the bed and on the bank of the lake respectively, is set forth as “ containing five acres of land on the shore or bank of Lily Lake and approximately two acres of Lily Lake.” The grant to her is described by courses and distances with the adjoiners, but does not call for the lake nor the bank or shore of the lake as a boundary. Two of the points called for in the lines of the survey, as given in her deed, are on the bank of the lake, but the lake is not made a boundary of the land conveyed and there is nothing in the conveyance to Mrs. Wormser showing an intention to grant her any rights beyond the fee in the land described in her deed. Nor is there anything in her chain of title from the commonwealth prior to her own deed that refers to the lake as a boundary of the grant to any of her predecessors in title. The three deeds immediately preceding Mrs. Wormser’s deed in her chain of title, however, like the description in her own deed, call for “ a corner in pond known as the Beach Pond,” thereby extending the grant to a designated point within the pond and ignoring the lake as a boundary line of the premises conveyed. It is clear from the description in the several conveyances in her chain of title that Mrs. Wormser acquired title to the land only within the metes and bounds set forth in her deed. The language of Bradbury, J., delivering the opinion of the Supreme Court of Ohio in Lembeck v. Nye, 8 L. R. A. 578, is applicable here. He says : “In the remaining deeds from the Fowlers to the lands around the lake the lands were described by metes and bounds, no mention of the lake being made. In descriptions of this class only the lands within the bounds pass.

‘ Where lands are granted by metes and bounds all the area within those bounds and no more passes: ’ Lockwood v. Wildman, 13 Ohio, 430. Indeed where the parties have by their deed enclosed the land by agreed lines, without any reference whatever to adjacent natural objects, it is difficult to conceive of a principle that would extend those lines to include those natural objects, however convenient they might be to the enjoyment of the land actually conveyed.”

It is contended by the plaintiffs, however, that even if Mrs. Wormser’s title be limited by the metes and bounds set forth in her deed, the fact that she owns a small portion of the bed of the lake gives them the right to use the waters of the entire lake for boating purposes. But with this contention we do not agree. The ownership in fee of the soil covered by the waters of Lily lake outside of Mrs. Wormser’s lines being in the defendant, we think he has the right to control that part of the waters of the lake above his land to the extent, at least, of prohibiting the use of the waters by Mrs. Wormser or her grantees for boating purposes. His grant of the land in the bed of the lake gave him title ad coelum et ad inferos, and, hence, the waters on his land were subject to his u-;e and enjoyment. There were no rights of a riparian owner which made those waters subject to an easement in favor of the plaintiffs while they covered the defendant’s land. The grant to the plaintiffs of a part of the bed of the lake, as observed above, is clearly and distinctly defined by their deed and does not extend to the other part of the bed of the lake owned in fee by the defendant. When, therefore, they entered on the waters covering the defendant’s land with their boats for pleasure and recreation, they became trespassers. This logically results from the character of the title of the parties to the bed of the lake vested in them by their respective conveyances. Each of the parties owns his land in fee, and included in that ownership is the right to the use of the water while it is on the land. Any use of it for boating purposes by another is an infringement of the rights of property vested in the owner of the land.

It. follows from what has been said that the defendant had ■the right to erect the boom on his premises for the purpose of preventing the plaintiffs from boating or sailing on the waters covering his land, and that the trial judge was in error in requiring it to be removed.

The decree of the court below is reversed and the bill is dismissed at the cost of the appellees.


author: Mb. Justice Fell,

text:
    Davis, Appellant, v. Pennsylvania Coal Company.

      Negligence—Mines and mining—Ambulance—Evidence.

    A coal mining company cannot be charged with liabi ity for the death of a miner, on the ground that it had failed to comply with the requirements of the statute which imposed on it the duty to maintain an ambulance at its mine and to cause any employee who might be injured to be conveyed at once to his home, where the only testimony relied on to establish a causal connection between the failure of the company to have an ambulance at the mine, and the death of the miner, is that of a woman who dressed the latter’s wounds, and who testified to a belief not founded on her observation and experience, and for which she could give no substantial reason, that if the miner had been removed to his home immediately after he was taken from the mine, she could have saved his life.
    Argued April 13, 1904.
    Appeal, No. 5, Jan. T., 1904, by plaintiffs, from judgment of C. P. Luzerne Co., Jan. T., 1901, No. 162, on verdict for defendant in case of Alexander Davis and Editb Davis, Committee of the Estate of Mary M. Edwards, v. Pennsylvania Coal Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband. Before Little, P. J.
    At the trial it appeared that the negligence alleged was failure upon part of the defendant to comply with section 8 of article 17 of the Act of June 2,1891, P. L. 176, which reads as follows:
    “ That for any injury to person or property occasioned by any violation of this act or any failure to comply with its provisions by an owner, operator, superintendent, mine foreman or fire boss of any coal mine or colliery, a right of action shall accrue to the partjr injured against said owner or operator for any direct damages he may have sustained thereby; and in case of loss of life by reason of such neglect or failure aforesaid, a right of action shall accrue to the widow and lineal heirs of the person whose life shall be lost, for like recovery of damages for the injury they shall have sustained.”
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendant.

      Wm. C. Price, with him Harold J. Mahon, for appellant,
    cited: Christner v. Coal Co., 146 Pa. 67; Fink v. Garman, 40 Pa. 95.

      J. B. Woodward, of Woodward, Barling Woodward, with him Willard, Warren Knapp, for appellee.
    May 9, 1904:
   Opinion by

Mb. Justice Fell,

The negligence alleged is that the defendant failed to comply with the requirements of a statute which imposed on it the duty to maintain an ambulance at its mine, and to cause any employee who might be injured to be conveyed at once to his home, by reason of which neglect it is claimed that an employee did not receive care and medical treatment that would have prevented his death. Edwards, an assistant mine foreman, went into a mine with Clark, another assistant foreman, to clean up a fall and to examine the works in the vein in which it had occurred. The mine was not in operation on account of a strike and they were the only men in it at the time of the accident. Each had a naked lamp, and Clark had a safety lamp in his pocket. When they reached the bottom of the shaft, Edwards asked Clark to light his safety lamp. He refused to do this, saying it was unnecessary, because he had never found gas in that part of the mine. As they walked to the place of the fall Edwards was behind Clark about one hundred feet. Clark’s lamp caused an explosion which killed him instantly, and so injured Edwards that he died the next day. Edwards was taken from the mine to a building near the mouth of the shaft, where his burns were at once treated by the engineer, the superintendent and others. These men had frequently seen burns treated and knew what to do in the emergency. They removed the clothing from the parts of his body burned and applied cotton waste thoroughly saturated with oil, wrapped him up as warmly as possible, and administered stimulants. The ambulance, which was a mile away at another mine or another part of the same mine, arrived by the time they had prepared him for removal and he was taken to his home two and a half miles distant. He arrived at his home about an hour and a half after he was removed from the mine and at the same time that a woman who had been sent for to treat his burns reached there. This woman was not a physician, but she had had a large experience in the treatment of burns and was known in the neigborhood as “ the bum doctor.” She re-dressed the burns in substantially the same manner as they had been dressed before, and gave the patient stimulants. Seven or eight hours later she became alarmed at his condition and sent for a physician, who found Edwards suffering from shock which caused his death.

The only testimony relied on to establish a causal connection between the failure of the defendant to have an ambulance at the mine and the death of Edwards was that of the woman who dressed his wounds, who testified to a belief that if he had been taken to his home immediately after he was removed from the mine she could have saved his life. Shadowy and uncertain as such testimony is, had the belief expressed by this witness been founded on her observation and experience or had she been able to give any substantial reason for it that would have warranted others in accepting it, there would have been-a question for the jury. But it was a belief apparently entertained without reason and blindly persisted in in spite of knowledge. As evidence of a fact in the case it amounted to nothing. This witness admitted that the proper practice was to treat burns as soon as possible; and that she had before testified in the same case and still believed that it is better to treat bums as soon as the injured person is brought from the mine than to wait until he has beeq removed to his home. The physician who attended Edwards, called by the plaintiff, testified that there was a possibility that his life might have been saved if a physician had been called at once, and that if any chance had been lost it was because of the failure to call a physician sooner. As there was no proof that death resulted from the default of the defendant, a fact essential to recovery, a verdict was properly directed for it. This view of the ease makes it unnecessary to consider the question of contributory negligence.

The judgment is affirmed.


text:
    Atherholt v. Hughes, Appellant.

      Evidence—Written contract—Parol evidence—Fraud—Misrepresentations —Quantity of timber.

    In an action to recover a balance claimed on a written contract for the purchase of standing timber on a lot stated.in the contract to contain fifty-four acres, it is competent for the defendant to show by parol evidence that before the contract was signed he asked that a survey be made, that plaintiffs objected, and stated that they had had a survey made a few days before, and knew that the lot contained fifty-four acres; that this statement was deliberately false, because plaintiffs had then in their possession the certificate of the surveyor showing that the lot contained only thirty-two acres; and that defendant relied on plaintiff’s statement, and signed the agreement.
    It is always competent for the defendant, who is sued upon a written contract, to prove that he was induced to enter into it by reason of fraudulent representations by the plaintiff of material facts going to the consideration, on the faith of which he acted. The purpose of such testimony is not to alter or vary the terms of a written contract by parol, but to show a failure of consideration, which in equity entitles the defendant to relief in whole or in part from his written obligation.
    Anything that would entitle a defendant in an action on a specialty to relief in a court of equity will be a good defense in a court of law.
    Argued April 13, 1904.
    Appeal, No. 25, Jan. T., 1904, by defendant, from judgment of C. P. Columbia Co., Jan. T., 1904, No. 25, on verdict’ for plaintiff in case of John Atherholt and Lillie Atherholt, his Wife, v. Charles Hughes.
    Before Mitchell, C. J., Dean, Fell, Mesteezat and Pot-tee, JJ.
    Reversed.
    Assumpsit for balance alleged to be due on a written contract. Before Little, P.'J.
    At the trial the following offer was made :
    Mr. Ikeler: The defendant proposes to prove by the witness upon the stand that prior to the execution of the written contract in suit, the witness together with John Atherholt and another party- visited the tract of timber in question and attempted at that time to come to an agreement with Mr. Atherholt as to the price per acre to be paid for the timber and at the same time measured off in the rough an acre of the timber and agreed to give the sum of $45.00 per acre for said timber; that Atherholt refused, holding the timber at #50.00 per acre; that at that time Atherholt represented to the witness that the timber tract contained fifty-four acres and some odd perches, stating that the same had just been surveyed and that his knowledge on that question was accurate and exact; that the parties failed to come to an understanding, but that afterwards they met in the office of Mr. Coughlin, attorney, at Wilkes-Barre, the witness and John Atherholt both being present, and after some little dispute agreed upon the price to be paid per acre, to wit: $46.33^-; that the attorney then present, suggested that inasmuch as the purchase was by the acre the parties ought to be very sure .of the exact acreage and suggested that the tract be surveyed before the written instrument was drawn, but John Atherholt again protested that such action would only cause expense, and that Hughes would be obliged to pay for nearly an extra acre, inasmuch as a survey would show that there were nearly fifty-five acres in the tract, but that he would be willing to let it go at fifty-four; and, acting upon the truth and good faith of these statements, the witness acquiesced and the written instrument was drawn, using the the words “ about fifty-four acres.” To be followed by proof that after the execution of the written instrument and after active operations had been begun upon the ground, the witness became suspicious of the acreage of the tract, and upon employing the services of a surveyor he discovered that in fact there were only thirty-five acres upon this tract. The defendant also proposes to show that in conducting these negotiations leading up to the execution of the written instrument he was acting in behalf of his father Charles Hughes, the present defendant in this case.
    Mr. Hibbs: This is objected to as incompetent, immaterial and irrevelant, for the reason that no conversations, if any were had, leading up to the execution of this agreement now in evidence, can in any way effect the written contract between these parties. The offer does not state that the defendant himself was upon the ground and that he knew personally anything in relation to the tract, nor to the amount to be paid for same, nor the agreement subsequently entered into. Neither does the offer state that Lillie Atherholt, the real plaintiff, the owner of this timber tract, had any knowledge of these conversations, nor was a party to the negotiations suggested in the offer; the contract itself being the only evidence of the agreement between these parties plaintiff and defendant.
    The Court: We feel obliged to sustain the objection and overrule the offer. We hardly think that, under the rule enunciated in the case of Martin v. Berens, this offer comes within the exceptions noted to the well known rule stated in that case, that: “ Where parties, without any fraud or mistake, have deliberate^ put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement.”
    Mr. Ikeler: This evidence is offered for the purpose of showing that at the time of the execution of the written instrument, the defendant, by false misrepresentations, known to John Atherholt at the time to be false, was induced to execute the written instrument, and to agree therein to pay the sum set forth in said paper, and that the amount named in said paper was agreed to by the defendant only and solely upon the faith of the representations made by the plaintiff at that time, which representations we now propose to show were false, and were known by the parties to be false at that time; and that upon the strength of these representations, and only thereon, the contract was executed.
    The Court: We won’t hear any more discussion about this question now. We will reconsider our former ruling and admit the evidence, subject to the further control of the court.
    Subsequently the court withdrew the 'evidence admitted under the above offer.
    Yerdict and judgment for plaintiff for $1,685.32. Defendant appealed.

      Error assigned was ruling on evidence, quoting the bill of exceptions as above.

      ITceler Ikeler, with them O. J. Fisher, for appellant.
    The offer should have been admitted: Cullmans v. Lindsay, 114 Pa. 166; Honesdale Glass Co. v. Storms, 125 Pa. 268; Mahaffey v. Ferguson, 156 Pa. 156; Brotherton Bros. v. Reynolds, 164 Pa. 134; Greenawalt v. Kohne, 85 Pa. 369 ; Hoopes v. Beale, 90 Pa. 82; Hartley’s Appeal, 103 Pa. 23; Phillips v. Meily, 106 Pa. 536; Ott v. Oyer, 106 Pa. 6; Thomas v. Loose, 114 Pa. 35.

      W. I. IRbbs, with him John Gr. Harman, for appellee.
    Where parties without fraud or mistake have put their engagements in writing the law declares the writing to be not only the best, but the only evidence of the agreement: Martin v. Berens, 67 Pa. 459; Thorne v. Warfflein, 100 Pa. 519; Jackson v. Payne, 114 Pa. 67; Mahaffey v. Ferguson, 156 Pa. 156; Farnsworth v. Duffner, 142 U. S. 43 (12 Sup. Ct. Rep. 154); Heebner v. Worrall, 38 Pa. 376; Cummins v. Hurlbutt, 92 Pa. 165; Abbey v. Dewey, 25 Pa. 413; Douglass v. Mitchell, 35 Pa. 440.
    May 9, 1904:
   Opinion by

Mb. Justice Fell,

This action was brought to recover a balance claimed on a written contract for the purchase of standing timber by the defendant. The contract included the timber on a wood lot which was part of the plaintiff’s farm. The lot was described as a part of the farm containing about fifty-four acres, and included all the timber not in the fields under cultivation. The lot contained only thirty-two acres. This fact was not known by the defendant until a part of the timber had been cut and removed. The defense was a partial failure of consideration because of the false representations made by the plaintiffs as to the acreage of the lot.

In support of this defense the testimony of a number of witnesses was received to show that the negotiations which preceded the agreement and culminated in it were not for the purchase of the timber for a gross sum for the whole lot but for a purchase at a fixed price per acre ; that after a price per acre had been agreed upon and the agreement was to be put in writing, the defendant’s agent and his attorney desired to have a survey made in order to ascertain the price to be named; that to this the plaintiffs objected and stated that they had had a survey made a few days before and knew that the lot contained exactly fifty-four acres and fifty-two perches; that this statement was deliberately false, because the plaintiffs then had in their possession the certificate of the surveyor which showed that the lot contained only thirty-two acres ; that the defendant had made no examination and taken no means to ascertain the acreage, and relying wholly on the plaintiff’s statement in relation thereto had agreed to the naming of a price ascertained by multiplying the agreed price per acre by the number of acres the lot was said to contain. This testimony was- withdrawn by the court from the consideration of the jury on the ground that the writing was the only evidence of the agreement, and a verdict was directed for the consideration named less the sum of the payments that had been made on account.

The withdrawing of this testimony was error. The statements of these witnesses Avere clear, precise and positive, and if they,were correct the defendant had been induced to execute the agreement by means of fraud practised by the plaintiffs. It is always competent for the defendant to prove that he was induced to enter into a written agreement by reason of fraudulent representations by the plaintiff of material facts going to the consideration, on the faith on which he acted. The purpose of such testimony is not to alter or vary the terms of a written contract by parol evidence but to show a failure of consideration which in equity entitles the defendant to relief in whole or in part from his written obligation. In Stubbs v. King, 14 Sergeant & Rawle, 206, an action on a bond for the purchase money of a tract of land as to the boundaries of which deception had been practised, it was said by Judge Gibson that “ where a continued misapprehension of material facts has been induced on the part of one by the misrepresentations of the other it is obvious that the execution of the writing ought not to extinguish the right of the injured party to show the fraud by which his assent to the contract was obtained.” This doctrine had been applied in a number of earlier cases and it has since been uniformly held that anything that would entitle a defendant in an action on a specialty to relief in a court of equity will be a good defense in a court of law, where as in this state equity is administered through the medium of legal forms : McCulloch v. McKee, 16 Pa. 289 ; County of Schuylkill v. Copley, 67 Pa. 386. The grounds for relief were quite as strong as those presented in Brotherton Brothers v. Reynolds, 164 Pa. 134, where a bill to rescind a contract for the sale of timber was sustained on the grounds of fraudulent representations by the vendor as to the quantity, in which it was said by our Brother Dean : “ This is not the case of buyers relying upon an imperfect investigation of their own, as in Mahaffey v. Ferguson, 156 Pa. 156, cited by the appellant, but the case of a buyer relying upon a false estimate of a vendor and his confidence increased by the further falsehood still more persuasive.” In this case reliance was placed on the assertion of a fact. The assertion was made to prevent investigation, and if false it was false to the knowledge of the vendor and made with the intent to deceive.

The judgment is reversed with a venire facias de novo.


text:
    Lillie v. American Car and Foundry Company, Appellant.

      Trial—Jury—Swearing of jury—Practice, C. P.

    At the trial of a cause two jurors who had been challenged were sworn with the others. The mistake was discovered as the plaintiff’s counsel commenced his opening address to the jury. The court directed these jurors to leave the box, and two jurors who had been agreed upon took their places. All of the jurors were then sworn. Held, that as the jury was one selected by the parties, the defendant was deprived of no right and suffered no injury by the action of the court. Pennell v. Percival, 13 Pa. 197, distinguished.

      Appeals—Harmless error—Charge—Negligence.

    The appellant in a negligence case cannot allege as a ground for reversal an erroneous instruction, where such instruction not only did the appellant no harm, but gave him a chance to which he was not entitled.

      Negligence—Master and servant—Vice principal.

    The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal whose neglect is the neglect of the employer.
    Argued April 13, 1904.
    Appeal, No. 34, Jan. T., 1904, by defendant, from judgment of C. P. Columbia County, Dec. T., 1902, No. 110, on verdict for plaintiff in case of Alexander Lillie v. American Car and Foundry Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Little, P. J.
    The court charged in part as follows:
    This is an action of trespass brought by Alexander Lillie against the American Car and Foundry Company, to recover damages which Lillie, the plaintiff, claims he has sustained because of the negligence of the defendant, while he was working as an employee in the shops of the defendant.
    The téstimony tends to show that Mr. Lillie commenced to work for this company in March, 1902, and that he continued in its employment until June 7, nearly three months, when he was seriously injured. That he was at the time of the injury ready to pursue his work at the drill press. The signal had been given for the men to begin their labors. That Mr. Lillie then sustained an injury by being hit with a plank coming from overhead, stated to be a part of an overhanging runway upon which the oilers would go to oil the pulleys and shafting by means of which the motive power was applied to propel the machinery, including the drill press at which the plaintiff worked.
    The mere fact of the injury raises no presumption of this company’s negligence. The burden of proving it rests, independently of the fact of the injury, on the plaintiff.
    There are three things, we believe, which are incumbent upon the plaintiff to establish by a preponderance of evidence, before he is entitled to a verdict in any sum: First, that the appliance was defective or that there was a loose plank overhead; second, that the master had notice or knowledge, or ought to have had; third, that the plaintiff did not know of the defect and had not equal means of knowing with the defendant.
    [ Thrash, the foreman of the repair crew, testified explicitly what instructions he received from the company. That, in short, it was his duty to see to it that if there was anything loose it should be removed, or he should have it securely fastened.
    Are you satisfied by a preponderance of the testimony in this case that this company, in the employment of Thrash as foreman of its repair crew, performed its duty to this plaintiff and to the other employees ? If it did, it is not liable to respond in damages for this very serious injury which the plaintiff has sustained. Otherwise, it is liable because we hold that when Thrash was employed to do the work of repairing, which was incumbent upon this defendant company to do, to see that this plaintiff had a reasonably safe place in which to work, he was, while so engaged, representing the defendant company, whether he be called foreman, vice principal, boss, or by whatever name.] [2]
    [The testimony is very meagre as to how long Thrash had been employed by the defendant company. Was he a sober, industrious, careful, painstaking man, fit to be intrusted with the performance of that imperative duty which the law casts upon this defendant company? If he was, we can hardly see how this plaintiff can recover anything at your hands. But if he was not, then the defendant has failed in the performance of its duty and can be said to be guilty of carelessness or wrong.
    You should satisfy yourselves whether or not this defendant company was negligent in the employment and retention of Thrash and the repair crew, before proceeding to any other branch of inquiry.
    If you decide that this testimony shows that this defendant company was careless and failed in the performance of its duty, then approach the next branch of the case.] [4]
    Verdict and judgment for plaintiff for $8,208. Defendant appealed.

      Errors assigned were (1) in directing the jury to be sworn under the circumstances stated in the opinion of the Supreme Court; (2,4) portions of charge as above, quoting it.

      James Scarlet, with him Alex. 0. Jaclcson, for appellant.
    It is well understood and the universal practice in Pennsylvania, that when a mistake arises in the drawing and swearing of the jury, unless the parties agree to the jury or waive the mistakes, the court discharges the jury as a body and proceeds to impanel another jury: Whitehurst v. Davis, 2 Haywood (N. C.), 113 ; McCormick v. Brookfield, 4 N. J. L. 69.
    For the court to submit a question of fact to the jury of which there is no evidence or without the color of proof is error: Whitehill v. Wilson, 3 P. & W. 405; Evans v. Mengel, 1 Pa. 68; Laird v. Campbell, 92 Pa. 470.

      The true point of inquiry under the pleadings was the failure of the company to repair and inspect and not the competency of Thrash as foreman or otherwise. If the court misled the jury by directing their attention to a point on which there was no evidence, it is error: Snyder v. Wilt, 15 Pa. 59; Harrisburg Bank v. Forster, 8 Watts, 304; Hersheaur v. Hocker, 9 Watts, 455.
    It is apparent that Thrash was not-placed in entire charge of the business, or of a branch of it. He was foreman of a gang that moved machinery and made repairs, as he was instructed. He was not charged with the duty of inspection but both he and his men received instructions from time to time frequently to leave nothing loose overhead, but to fasten or remove it.
    Those instructions were not confined to him, but made to every one of his men. This is not surrendering all to Thrash, but exercising oversight: Keystone Bridge Co. v. Newberry, 96 Pa. 246.
    Defendant’s officers were not bound to stand by while the work was in actual progress to see that it was properly done. If the proper orders were given, they might assume that they were carried out: Durst v. Carnegie Steel Co., 173 Pa. 162; Walton v. Bryn Mawr Hotel Co., 160 Pa. 3 ; New York, etc., R. R. Co. v. Bell, 112 Pa. 400; Lehigh Valley Coal Co. v. Jones, 86 Pa. 432.

      Grant Herring, with him W H. Rhawn, O. A. Small and Clinton Herring, for appellee.
    If after a jury is sworn, an unchallenged and unexamined juror is found in the panel, the proper juror should be substituted and the jury resworn: Colt v. Eves, 12 Conn. 243.
    Taking the full context of the charge as a whole, it is too plain for argument that nowhere does it appear that the court based the liability of the defendant company upon its negligence in the original employment of Thrash, the foreman of the repair crew. ■ In the absence of special requests for instructions, the true test is to consider the charge as a whole, and if when so taken it is not erroneous, errors cannot be assigned for inaccuracies in detached portions, taken out of their connection with the rest of the charge : Reeves v. Delaware, Lackawanna & Western Railroad Company, 30 Pa. 454, p. 460; Penna. R. R. Co. v. Coon, 111 Pa. 430; Kyle v. Southern Electric Light, etc., Co., 174 Pa. 570 ; Reese v. Reese, 90 Pa. 89; Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Galbraith v. Black, 4 S. & R. 207; Penn. Mut. Ins. Co. v. Snyder, 3 W. N. C. 269.
    May 9, 1904:
   Opinion by

Mb. Justice Fell,

The first error assigned is to the action of the court in dismissing jurors who were sworn by mistake and in directing others who had been selected by the parties to take their places. Two jurors who had been challenged were sworn with the others. The mistake was discovered as the plaintiff’s counsel commenced his opening address to the jury. The court directed these jurors to leave the box, and two jurors who had been agreed upon took their places. All of the jurors were then sworn. At the request of the defendant’s counsel an exception was noted, but no specific ground of objection to the action of the court was stated. The proceeding would have been more regular if the whole jury had been discharged and a new one empaneled. This was in effect what was done. The trial which had commenced came to an end. A new jury of twelve men who had originally been selected by the parties was sworn, and tried the case. In Pennell v. Percival, 13 Pa. 197, relied on by the appellant, a juror who had been sworn failed to appear at the trial, and another juror was put in his place without the consent of the parties. In that case the jury was not the one selected by the parties; in this case it was the one selected, and the defendant was deprived of no right and suffered no injury by the action of the court.

The remaining assignments are to parts of the general charge by which it is alleged that the case was submitted to the jury on an issue not raised by the pleadings nor decisive of the controversy. The plaintiff, an employee, was injured by the falling of a plank, which was a part of the original construction of an overhead runway in the defendant’s machine shop. One end of the plank rested on a hanger and the other on a window sill, and it was used by the workmen as a walk when oiling overhead machinery and adjusting and repairing the shafting and pulleys. It had originally been fastened by bolting or nailing, but the end at the window had become decayed and loosened. The negligence alleged was the failure to maintain the place in which the plaintiff was assigned to work in a reasonably safe condition. The instruction as to the nature and extent of the defendant’s duty to provide and maintain a reasonably safe place for its workmen and as to the burden of proof of negligence was full and accurate, but the distinction was not clearly drawn between the duties which an employer may delegate and those which he may not delegate so as to avoid responsibility. The question whether the defendant had performed its duty in the employment of competent men to make repairs was submitted with instructions that would permit a finding against it if it had not exercised reasonable care in this respect, and would prevent one-if it had. The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal whose neglect is the neglect of the employer: Lewis v. Seifert, 116 Pa. 628; Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617; Casey v. Penna. Asphalt Paving Co., 198 Pa. 348. But as no question of the competency of the foreman and the men of the repair crew could arise unless the jury found that the place was unsafe, and since their neglect was not made the neglect of their employer, the instruction complained of did the defendant no harm but gave it a chance to which it was not entitled.

The judgment is affirmed.


author: Mb. Justice Potteb,

text:
    White Haven Borough, Appellant, v. White Haven Water Company.

      Corporations—Water companies'—Limitation upon charges—Acceptance of new constitution and act of April 29, 1874—Boroughs.

    Where a water company incorporated in 1865, purchases the waterworks of a borough, and a provision in its charter that it shall not charge more than $10.00 per annum to any private family is a part of the contract of purchase, the water company cannot in 1899 by accepting the provisions of the constitution of 1873 and the corporation act of April 29, 1874, relieve itself from the limitation on charges to private families.

      Argued April 14, 1904.
    Appeal, No. 59, Jan. T., 1904, by-defendants, from decree of C. P. Luzerne Co., May T., 1900, No. 11, on bill in equity in case of White Haven Borough, S. W. Trimmer and G. W. Moyer, Taxpayers, v. White Haven Water Company.
    Before Mitchell, C. J., Dean, Fell, Mestbezat and Potteb, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      JSrror assigned was in dismissing the bill.

      S. J. Strauss, with him O. F. MeHugh and J. T. Lenahan, for appellant,
    cited: Trimmer v. White Haven Water Co., 4 Kulp, 293 ; In re Lange, 91 Fed. Repr. 361; In re Scheld, 104 Fed. Repr. 870; Dartmouth College v. Woodward, 17 U. S. 518; Hays v. Com., 82 Pa. 518; Com. v. Pittsburg, etc., R. R. Co., 58 Pa. 26.

      J. B. Woodward, for appellee,
    cited: West Easton Spring Water Co., 9 Pa. Dist. Rep. 546; Wilkes-Barre v. Spring Brook Water Supply Co., 4 Lack. 367; Brymer v. Butler Water Co., 179 Pa. 331; Tyrone Gas & Water Co. v. Borough of Tyrone, 195 Pa. 566.
    May 9, 1904:
   Opinion by

Mb. Justice Potteb,

The borough of White Haven, prior to 1865, had erected and was the owner of waterworks from which it supplied itself and furnished its citizens with pure water. The defendant, the White Haven Water Company, was incorporated by a special act of assembly approved February 27,1865, P. L. 203, and the act of incorporation contained a proviso “ that the said company shall not charge any private family more than ten dollars per annum for water, or the use thereof.” The act further provided that the defendant company should purchase from the borough, and the borough was authorized to sell, its waterworks, at a price to be fixed by three disinterested persons in the manner set forth in the act. In pursuance of this permission, on September 2, 1865, the borough delivered a deed for its waterworks property to the defendant company at an appraised value.

On October 4, 1899, the defendant company by resolution duly passed, accepted the provisions of the constitution of 1873 and the corporation act of April 29,1874, and its supplements, and subsequently obtained letters patent from the governor. Shortly afterward the company raised its water rates, so that the charge upon many private families in the borough of White Haven exceeded the sum of $10.00 per annum. Whereupon, the borough and certain of the taxpayers therein, filed this bill, praying for an injunction to restrain the defendant company from charging to any private family more than $10.00 per annum for water.

The court below dismissed the bill, on the ground that the acceptance by the defendant company of the provisions of the constitution of 1873 and the act of April 29,1874, relieved the defendant company from the necessity of any further compliance with the provision of the act of March 11,1857, and that it was not thereafter subject to the restrictions of that act upon its charges for water furnished to private families.

The plaintiffs thereupon took this appeal, and among other errors specified, filed the following assignment: “ 15. Said court erred in affirming the defendant’s first request for findings of law, which request was as follows :

“‘1. The defendant by accepting the constitution (of 1873) and act of 1874, gave up all benefits and rid itself of all restrictions imposed upon it by the special act under which it was incorporated, and among others, the restriction on the water rate it might charge, to ten dollars per year.’ ”

By their eleventh assignment of error, the plaintiffs also complain of the refusal by the court below of their fifth request for findings of law, which was as follows:

“5. The restrictions upon the company’s rights to charge water rents beyond a certain point created by the act, in pursuance of which the company purchased the water plant from the borough of White Haven, was a contract obligation upon the water company and created permanently a vested interest in the plant on behalf of the borough of White Haven and its citizens, who are its incorporators. This vested interest plaintiffs cannot be deprived of through the act of the defendant in adopting the provisions of the act of 1874.”

We think that these assignments are well taken, as the trial court erred in its answer to both requests.

It cannot be doubted that when the borough of White Haven sold its waterworks to the defendant company, the transfer was made in contemplation of the fact that the charter of the defendant company contained a restriction which limited the charges to any private family to the sum of $10.00 per annum. This limitation can only be regarded as an element of weight in inducing the borough and its people to consent to the sale to a private company. The obligation thus imposed upon the company seems to have been unquestioned by it for many years, and it was not until 1899 that the defendant company seems to have conceived the idea that by an acceptance of the new constitution and of the act of April 29, 1874, it might be able to avoid further performance of its contract in this respect.

Whether or not the identity of the defendant company was changed by its acceptance of the benefits of the act of 1874, and a new corporation was thereby created, is not material to the present question. We are clear that among the privileges and immunities conferred by the act of 1874, there was not included any right to repudiate its contract with the people of the borough of White Haven. This contract limiting the price to be charged to a private family for the use of water, was one of the conditions upon which the waterworks were sold and transferred to it by the borough. It would be doing violence to the intention of the legislature to include within it the right to repudiate this obligation. If there had been any such intent, it would have been void. The legislature has no power, by creating a new corporation, to relieve a prior corporation of the obligations of an existing contract, or to divest an interest which has once vested. The defendant company could not be relieved from the obligation of its contract, either by an express enactment of the legislature or by the acceptance of a general statute.

The class of cases of which Gas & Water Co. v. Downingtown Boro., 175 Pa. 841, is an example, holding that the charter of a municipality is not a contract within the constitution, municipalities being mere agents of the state, does not apply to the present case. In sueli cases the rights of the state and its agent, the municipality, only are involved; whereas, in the present case, the contract affected is not between the municipality and the state, but between the municipality and a third party; that is, between the borough and its citizens on the one hand, and the defendant company on the other.

Our cases, such as White v. Meadville, 177 Pa. 643, and Potter County Water Co. v. Austin Boro., 206 Pa. 297, show that the water companies have been quick to point out the unconstitutionality of certain acts of assembly which have infringed upon their contract rights. In the present instance, the shoe is upon the other foot. The water company is here seeking to escape from an obligation imposed upon it by its original charter and which was a condition of its existence when the borough sold and transferred its water plant to the defendant company.

There can be no good reason why the principle which has so often been invoked for the protection of the water companies, should not be here applied, to secure and maintain the rights of the public. The obligation to observe the terms of a contract is certainly not to be regarded as existing only upon the part of the municipality.

The tenth, eleventh, fifteenth, eighteenth and nineteenth assignments of error are sustained. The decree of the court below is reversed at the cost of the appellee. It is further ordered that the record be remitted to the court below, with direction that an injunction be issued to restrain the defendant company from increasing the water rents in the said borough beyond the price of $10.00 per annum to any private family, and from collecting such excess in any case, and from cutting off the water from private families who refuse to pay such increased rates.