text:
    Maloney v. Simpson, Appellant.

      Municipal lien — Return of service — Amendment of return — Act of June 4, 1901, P. L. 364.
    1. A sheriff’s return may always be amended so as to conform to the truth, unless some new right has arisen in the meantime founded upon the defective return.
    2. Where a sheriff’s return of a service of a writ of scire facias sur municipal lien fails to set forth that he made inquiry “ of three persons residing nearest to the property as to the names and residences of the real owners,” when in fact such inquiry was made, the return may be amended even after a sheriff’s sale and deed to the purchaser, so as to conform to the facts.

      3. Where such an amendment has been allowed, and no appeal taken therefrom, the correctness of the allowance cannot be attacked in a collateral proceeding.
    Argued Oct. 27, 1909.
    Appeal, No. 181, Oct. T., 1909, by defendants, from order of C. P. No. 3, Allegheny Co., Aug. T., 1909, No. 109, making absolute rule for judgment for want of a sufficient affidavit of defense in case of M. F. Maloney v. David Simpson and Frederick L. Schmeltz, partners doing business as Simpson & Schmeltz.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover purchase money of real estate. Before Davis, J.
    From the record it appeared that the defendants refused to accept title under the agreement of purchase, because of the invalidity of the sheriff’s sale under which plaintiff derived title.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      S. Harvey Thompson, for appellants.
    If at the entry of judgment upon a municipal claim there be not service upon, or constructive notice to, the real owners in the manner provided by the statute the proceeding is void, the judgment so erroneously entered is void and may be attacked in a collateral proceeding and the estate of the owners therein remain undivested by a sheriff’s sale on the judgment: Baines v. Alker, 207 Pa. 234; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231; Fryer v. Magill, 163 Pa. 340; Ferguson v. Quinn, 123 Pa. 337.
    It is submitted that under the circumstances of this case the common pleas court did not have the power to validate the erroneous judgments already entered in the scire facias proceedings by allowance of an amendment to the sheriff’s return, after the sheriff’s sale of the land upon execution issued on the judgment.

      R. B. Petty, with him Wm. F. and R. B. Petty, Jr., for appellee.
    January 3, 1910:
    A scire facias on a municipal claim is a proceeding in rem; and a sheriff’s sale under a judgment obtained thereon passes the title to the purchaser, whether the real owner has been named or not: Delaney v. Gault, 30 Pa. 63; Soullier v. Kern, 69 Pa. 16; Emrick v. Dicken, 92 Pa. 78; White v. Ballantine, 96 Pa. 186; Bryan’s App., 101 Pa. 389; Hering v. Chambers, 103 Pa. 172; Milleisen v. Senseman, 4 Pa. Superior Ct. 455; Philadelphia v. Merritt, 29 Pa. Superior Ct. 433.
    We contend further, that the amendment of the sheriff’s return was properly made (although unnecessary), inasmuch as the sheriff had actually made the inquiry, and the omission to make return was an oversight: Shamburg v. Noble, 80 Pa. 158; Burrows v. Heysham, 1 Dallas, 133; Wampler v. Schissler, 1 W. & S. 365; Berryhill v. Wells, 5 Binney, 56; Spackman v. Byers, 6 S. & R. 385; Paul v. Harden, 9 S. & R. 23; Com. v. Silcox, 161 Pa. 484.
   Opinion by

Mr. Justice Potter,

The Act of June 4, 1901, P. L. 364, sec. 18, provides for the service of process issued on municipal claims. Under that act, it is the duty of the sheriff, to whom a writ of scire facias is given for service, in case no one be found in possession of the property described, to “make inquiries of at least three persons separately residing upon or nearest thereto, as to the names and residences of the real owners of said property,” and to “add their names to the writ as parties defendant, if not already named therein,” and to serve the writ upon them. The original return of the sheriff did not show that he had complied with the above requirements of the act. Judgment on the claim was, nevertheless, entered, a levari facias issued and the property sold by the sheriff and a deed made to the purchaser. Subsequently, the sheriff upon showing to the court that he had in fact complied with the act, was permitted to amend his return so as to conform to the facts.

If the sheriff had failed to comply with the requirements of the statute as to service, there can be no doubt that the judgment entered would be void, and that a sale upon it would not vest a good title in the purchaser.

In Simons v. Kern, 92 Pa. 455, where the return of the sheriff did not show service of the scire facias on the registered owner and did not set forth the place of posting and the time and manner of publication, it was held, reversing the court below, that the judgment was void, and no title passed to a purchaser at a sheriff’s sale upon it. In Ferguson v. Quinn, 123 Pa. 337, and Alles v. Lyon, 216 Pa. 604, it was held that failure to serve the scire facias in the manner prescribed by the act of assembly, rendered a judgment entered upon the claim void, and a sheriff’s sale on such judgment passed no title. In Jones v. Beale, 217 Pa. 182, where'the sheriff’s return did not show service in compliance with the statute, Chief Justice Mitchell said (p. 189): “There was, therefore, an entire .failure of such service as would sustain the judgment, and the .sale, as in Simons v. Kern, 92 Pa. 455, was void for want of jurisdiction patent on the record, of which the purchaser was bound to take notice.”

But in this case the return of the sheriff as amended by leave of court, is in conformity with the requirements of the act. Had the court power to allow the amendment of the return, after judgment had been entered, and a sale been made? We think so. The general rule seems to be that a return may always be amended so as to conform to the truth, unless some new right has arisen in the meantime, founded upon the defective return. Thus in Scott v. Seiler, 5 Watts, 235, Justice Kennedy said (p. 241): “It is certainly true that sheriffs, upon application made to the court within a reasonable time, have been permitted frequently to amend their returns to writs, where it has been shown clearly that they were made through mistake in regard to some matter of fact, which, from its nature, might not be within their own knowledge.”

In West v. Nixon, 3 Grant, 236, the sheriff was permitted to make a return to a writ after the return day. Justice Thompson said, “The return was good and could be made as well after as before the return day. In practice this often occurs, and is sometimes allowed to be made after a lapse of several years to avoid apparent irregularities.” In Peck v. Whitaker, 103 Pa. 297, it was held that an amendment to a sheriff's return of a sale of real estate, amending the name of the purchaser so as to conform with the fact, was properly-allowed, although the term of the sheriff had expired and nine years had elapsed since the sale.

And in Brundred v. Egbert, 164 Pa. 615, it was held that an irregular return to a scire facias sur mortgage might be amended by the sheriff.

It cannot be doubted that the court had power to permit the amendment to be made' in this case; and as the order was made by a court of competent jurisdiction, and no appeal was taken, the correctness of the order cannot properly be questioned collaterally, in this proceeding.

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


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    American Exchange National Bank of New York, Appellant, v. Federal National Bank of Pittsburg.

      Bailment — Pledge—Pledge of book accounts — Assignment—Delivery.
    1. Incorporeal property being incapable of manual delivery, cannot be pledged without a written transfer of the title. Debts, negotiable instruments, stocks in incorporated companies and choses in actions generally, are pledged in that mode. Such transfer of the title performs the same office that delivery of possession does in case of the pledge of corporeal property. The transfer of the title, like delivery of possession, constitutes the evidence of the pledgee's right to the property in the thing pledged.
    2. The pledge of a book account is not completed by the delivery of a copy of the account. There must be an actual assignment of the account in writing in order to perfect the pledge.
    3. Where a creditor delivers a copy of an account receivable to a bank as a pledge, but without any written assignment of the account, and the debtor by whom the account is owing is not notified of the pledge, and thereafter the owner of the account collects the same through another bank with which the owner had an agreement that all moneys passing through its hands might be applied to the discharge of the indebtedness of the owner of the account, the latter bank may, if it has had no notice of the prior pledge of the account, retain the money collected on it, and is not obliged to surrender such money to the other bank with which the account had been pledged.

      Argued Oct. 28, 1909.
    Appeal, No. 161, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1904, No. 936, for defendant on case tried by the court without a jury in suit of American Exchange National Bank of New York v. Federal National Bank of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to determine the ownership of the proceeds of certain book accounts.
    The case was tried by Macfarlane, J., without a jury under the Act of April 22, 1874, P. L. 109.
    The. facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for plaintiff for 14,687.49, with interest from May 23, 1903.

      B. J. Jarrett, with him Willis F. McCook and Karl F. Overholt, for appellant.
    We take the position that the plaintiff bank as such pledgee of these accounts had a special property and greater rights therein than the defendant bank, which the court finds was a mere creditor, and not a purchaser for value:' Camden Nat. Bank v. Fries-Breslin Co., 214 Pa. 395; Lishy v. O’Brien, 4 Watts, 141; Fidelity & Deposit Co., of Md. v. Johnson, 42 So. Repr. 357; Lyle v. Barker, 5 Binney, 457; Munn v. McDonald, 10 Watts, 270; Smith v. Trust Co. 215 Pa. 416; Northwestern Bank v. Poynter & Co., L. R. App. Cases (1895), 56; Holmes v. Langston, 110 Ga. 861 (36 S. E. Repr. 251); Jarecki Mfg. Co. v. Hart Co., 5 Pa. Superior Ct. 422; First Nat. Bank of Clarion v. Cregg & Co., 79 Pa. 384; Hackett v. Reynolds, Lamberton & Co., 114 Pa. 328; Davis v. National Bank, 26 So. Repr. 222; Douglas v. Bank, 17 Minn. 35; Kellogg v. Thompson, 142 Mass. 76 (6 N. E. Repr. 860).

      David E. Mitchell and Wm. A. Stone, with them Stephen Stone and William A. Griffith, for appellee.
    Since the decision of this court in the case of Phillips’s Estate, 205 Pa. 515, it must be considered settled law that an assignment of a chose in action is not complete until notice of the same has been given to the trustee, stakeholder or debtor.
    January 3, 1910:
    But assuming for the purposes of this argument that the decision in Phillips’s estate had never been handed down, we maintain that the prior decisions have ruled this case absolutely : Levy v. Cooke, 143 Pa. 607; Bughman v. Central Bank, 159 Pa. 94; Geist’s App., 104 Pa. 351; Quail’s App., 92 Pa. 196; Com. v. Sides, 176 Pa. 616; First Nat. Bank v. Gish, 72 Pa. 13.
   Opinion by

Mr. Justice Mestrezat,

This case was tried before the court without a jury under the Act of April 22, 1874, P. L. 109. The material and controlling facts are the following: The action was brought May 23, 1904, to recover $4,687.49, with interest from May 23, 1903, being part of the proceeds of a draft drawn by the Eastern Tube Company to the order of the defendant bank on the Spokane Falls Gas Light Company for the sum of $6,544.42.

In December, 1901, the Eastern Tube Company made a parol contract with the defendant bank by which it was agreed that the company would keep twenty-five per cent of the proceeds of discounts made for it by the bank on deposit as security to the bank, the said proceeds and the tube company’s money on deposit to be security for the tube company’s indebtedness to the bank. The tube company’s balance was to be used as though it were collateral put up with the bank for its security, and to be applied in any case that the bank could have applied collateral security, whether the indebtedness was or was not due. Under this agreement the defendant bank discounted paper for the tube company, some of which was renewed from time to time.

On January 19,1903, the tube company made its note in the sum of $25,000 payable in four months to the plaintiff bank, and (as the note recites) deposited with the bank as collateral security “for the payment of this or any other liability or liabilities of ours to said bank, due or to become due, or that may have been heretofore or may be hereafter contracted,” certain warehouse receipts, with the further provision that “ on the nonpayment of any liability or liabilities above mentioned the said bank .... is hereby given full power and authority to sell, assign and deliver or collect the whole or any part of the above named securities or any substitute therefor, or any addition thereto, .... without demand or notice .... and may become the purchaser of the whole or any part of such securities discharged from any right of redemption.” The note was discounted by the plaintiff and the proceeds paid to the tube company. On March 26, 1903, at the request of the tube company, certain accounts receivable, inter alia, four accounts against the Spokane Falls Gas Light Company, were submitted for one of the warehouse receipts held as .collateral by the plaintiff bank which surrendered the receipt and received in its stead and as a substitute therefor said accounts, but there was no written assignment or delivery of the books containing the accounts to the plaintiff. The tube company agreed as plaintiff’s agent to collect the accounts for plaintiff and to pay over the proceeds which were to be applied to the liquidation of its liabilities to the plaintiff which were due or to become due.

On May 5, 1903, the tube company drew on the Spokane Falls Gas Light Company for $6,544.42 to the order of the defendant bank, which included the amount due on the four accounts, and as agent for the plaintiff bank deposited the draft on the same day in the defendant bank for collection. The draft was collected by the latter bank and the proceeds passed on May 20, 1903, to the credit of the tube company which at that time had a general account with and was a depositor of the defendant bank.

On May 15, 1903, the tube company assigned in writing to the plaintiff bank a number of accounts aggregating more than $30,000, among them being the four accounts against the Spokane Falls Company, aggregating $4,687.49 and already regarded as being in the hands of the plaintiff as collateral security for payment of the note of January 19, which would become due May 19, 1903. The tube company agreed in the assignment to collect and deliver to the plaintiff without cost all payments received by that company, the same to be applied to the liquidation of its indebtedness to the bank due or to become due or that may have been theretofore or might be thereafter contracted.

On May 21, 1903, a receiver was appointed for the Eastern Tube Company, and on May 22, the defendant bank had in its hands a balance of $21,907.95 of the tube company's money, which included the draft deposited by the tube company for collection. On the latter date the indebtedness of the tube company to the defendant bank was about $100,000 and the bank, then in the hands of a receiver, applied to the indebtedness the entire' deposit balance of the tube company which was not more than twenty-five per cent of the indebtedness. At no time prior to the application of the proceeds of the draft to the tube company's indebtedness, had the defendant any notice or knowledge of the claim by the plaintiff against the proceeds of the draft. This suit was the first claim made by plaintiff against the defendant bank for any part of the proceeds of the draft.

There was no evidence that the defendant was misled or injured by the conduct of the plaintiff, nor did it appear that the defendant bank made any advances on the credit of the draft.

• The learned court below, in its conclusions of law, held that “in depositing the draft and collecting the account the agency of the tube company was nothing more than that it acted for the bank, the pledgee of the account with authority;'' and that “the plaintiff by leaving the account in the hands of the tube company and authorizing it to collect it, but failing to take into its hands the evidence of indebtedness and to notify the Spokane company, is not entitled to judgment.” Judgment was accordingly entered for the defendant from which the plaintiff has taken this appeal.

The plaintiff contends that the defendant is not a bona fide purchaser for value and was not misled or put to any loss by reason of any act of either the plaintiff or the tube company. The plaintiff bank also claims that it was a pledgee for value of the Spokane accounts before the draft was deposited for collection and hence is entitled to the fund in controversy.

The position of the defendant bank is that it accepted the draft in payment of an antecedent debt without notice of the plaintiff’s claim and that therefore the title passed to it as against the plaintiff; that at the time the draft was deposited the tube company had title to the accounts with the right to collect them and that having collected them and deposited the money in the defendant bank, it had the right to retain the money under the parol agreement of December, 1901.

The plaintiff cannot recover in this action on the assignment of the book accounts made to it by the tube company on May 15, 1903. The money due on those accounts was collected by the tube company by means of the draft drawn by it in favor of the defendant bank which, when the money was collected, credited the amount to the account of the tube company and applied the sum to the indebtedness of the tube company to the bank. The plaintiff bank gave no notice to the Spokane company of the assignment to it of the tube company’s accounts, and the defendant bank had no notice of the assignment when it collected the money and applied it to the indebtedness due it from the tube company. Under these circumstances, the title to the fund passed to the defendant bank: Phillips’s Estate (No. 3), 205 Pa. 515.

If the plaintiff bank is entitled to the fund in controversy, it must be by virtue of the pledge of the Spokane accounts to it as collateral security for payment of the note of January 19, 1903, given by the tube company to the plaintiff. In order to make a valid pledge as against other creditors there must be an actual or constructive delivery of the possession of the goods. The delivery must be clear, unequivocal, complete, and effective at all times so as to give notice to third parties of the pledgee’s rights; a mere agreement by the debtor that the creditor shall take and hold certain property as security for his debt is insufficient: 31 Cyclopedia of Law & Procedure, 801. Delivery of possession is sufficient if made by the transfer of the instrument which represents the property, such as a warehouse receipt, elevator receipt, bill of lading, promissory note or an obligation or claim upon other persons. The delivery of a bank book is sufficient to constitute a pledge of the book and money on deposit: Boynton v. Payrow, 67 Me. 587. In Brewster v. Hartley, 37 Cal. 15; 99 Am. Dec. 237, Rhodes, J., delivering the opinion says (p. 241): “Incorporeal property, being incapable of manual delivery, cannot be pledged without a written transfer of the title. Debts, negotiable instruments, stocks in incorporated companies, and choses in action generally, are pledged in that mode. Such transfer of the title performs the same office that delivery of possession does in case of a pledge of corporeal property. The transfer of the title, like the delivery of possession, constitutes the evidence of the pledgee’s right of property in the thing pledged. In 22 Am. & Eng. Eney. of Law (2d ed.), 854, it is said: “As between successive pledgees without any communication with each other, that one who lawfully obtains possession at the time of the pledge, or subsequently, is entitled to be preferred. Where a contract or pledge is made, but there is no actual or constructive delivery of the goods to the pledgee, he obtains no lien although he actually advances money on the faith of the contract of the pledge and although he acts with the utmost good faith.” A book account is not pledged by the delivery of a copy of the account as security without an assignment, since such a copy does not represent the debt: Cornwell v. Baldwin’s Bank, 43 N. Y. Supp. 771.

Recurring to the facts of the present case, it will be seen that the plaintiff cannot sustain its claim to the fund in dispute on the ground that it was a pledgee of the Spokane accounts. The • pledge was never completed by any actual or constructive delivery of the property pledged. This property consisted of four accounts or bills receivable which the tube company held against the Spokane Falls Gas Light Company. The accounts themselves, or rather the books containing the accounts, were 'never delivered to the plaintiff notwithstanding the note of January 19,1903, stated that they had been deposited with the bank. It is conceded that no such delivery was made. There was a delivery of copies of the account to the plaintiff bank without any assignment or other transfer of the right of the tube company in or to the accounts. This manifestly was not an actual or constructive delivery of the accounts to the pledgee. The same delivery could have been made to as many parties as the tube company had creditors, and with like force and effect. It gave no notice to other parties purchasing or accepting the accounts as collateral security, nor did it confer authority on the plaintiff bank to enforce payment against the Spokane company by an action at law. The delivery of the copy, therefore, transferred neither the title nor the possession of the accounts to the plaintiff bank, and hence was insufficient to create a lien on the accounts in favor of the bank as against subsequent purchasers, pledgees, or creditors of the tube company without notice.

The plaintiff bank not having completed its pledge by securing a delivery of the Spokane accounts is not in a position to invoke the rule against the defendant, relied on by the appellant and enunciated in First National Bank v. Gregg & Co., 79 Pa. 384, and kindred cases, that as against the plaintiff the defendant could not claim the fund in dispute because it had made no advances or had given no new credits to the tube company on the faith of the accounts. In other words, before the plaintiff bank can insist upon the enforcement of that rule, it must show that it had a valid pledge of the Spokane accounts at the time the draft or its proceeds were deposited in the defendant bank.

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


author: Per Curiam,

text:
    Morrow, Appellant, v. Fidelity Mutual Life Association of Philadelphia.

      Insurance — Life insurance — Equation fund.

    In an action upon a policy of life insurance where a plaintiff alleges that his equitable proportion of an equation fund was $1,800, and that if such proportion was less in amount it indicated a deficiency in the collection fund which under a condition of the policy should have been made, good by a pro rata assessment upon the members of the association, an affidavit of defense alleging that plaintiff’s equitable proportion of the fund was only $426.60 and that a deficiency in the fund could only occur on certain specified contingencies and that they had not arisen is sufficient.

      Argued Oct. 28, 1909.
    Appeal, No. 180, Oct. T., 1909, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1909, No. 724, discharging rule for judgment for want of a sufficient affidavit of defense in case of Lot' L. Morrow v. Fidelity Mutual Life Association of Philadelphia.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy .of life insurance.
    Rule for judgment for want of a sufficient affidavit of defense.
    Shaper, J., filed the following opinion:
    The action is upon a policy of life insurance made in July, 1892, whereby for an annual premium of $131.46 the defendant company agrees to pay $3,000 at the death of the plaintiff, and also provides that if the policy be surrendered on February 19, 1909, the insured shall receive as a cash disability benefit “an equitable proportion of the equation fund, estimated according to the established experience of thirty American offices at the amount of $1,800,” whereupon the insurance should cease. The plaintiff offered to surrender his policy on February 19, 1909, and demanded payment of $1,800, and alleges that his equitable proportion of the equation fund as provided in the policy amounted to $1,800.
    The case is somewhat complicated by reason of the nature of the provisions of the policy, and is not made more easy of comprehension by the fact that we have four affidavits of defense. The policy does not promise the plaintiff $1,800 on February 19, 1909, but only an “equitable proportion of the equation fund,” and the only mention of $1,800 is a statement that this equitable proportion, estimated according to the-tabulated experience of thirty American offices, would amount to that sum. Plaintiff alleges that his equitable proportion of the equation fund is $1,800, and the defendant says that it is not, but is only $426.60. The plaintiff claims that this indicates a deficiency in the equation fund, which under a condition of the policy should have been made good by a pro rata assessment upon the members of the association, to which the defendant replies that the deficiency referred to in the policy for which an assessment is to be made would occur only when the equation fund would be insufficient to equalize the increasing cost due to advancing age, or if the proportion of such fund properly belonging to such policy shall at any time not equal the difference between the present worth of the future payments and the sum insured, and that this contingency has not occurred, but that the equation fund during the probable life of the insured was always sufficient for that purpose.
    If this be true and it is a matter of fact, the affidavit of defense would appear to be sufficient to prevent judgment. The rule is, therefore, discharged.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      M. H. Stevenson, with him Wm. C. Boyd, for appellant.—
    The defendant expressly agreed that if the policy be legally surrendered on February 19, 1909, “ said member shall receive as a cash disability benefit an equitable proportion of the equation fund” estimated at 11,800. Condition seven provides that any deficiency in this fund shall be made good by assessments, payable “within thirty days from the date of notice of same.” Defendant admits that it has been drawing from this fund continuously to pay death losses on other risks. No notice of this fact was given to plaintiff; no assessments were called to “make good the deficiencies.” These withdrawals from the equation fund were practically secret assessments against plaintiff. The company claims that these secret assessments may now “be charged against the policy and deducted therefrom when it becomes a claim.” This not allowable.
    L. K. Porter, with him S. G. Porter, Frank H. Kennedy and F. H. Calkins, for appellee.
    Defendant was under no obligation to make any assessment during the continuance of plaintiff’s policy, because there was no deficiency in the equation fund for which an assessment could be levied under the terms of said policy.
    January 3, 1910:
    Defendant was under no obligation to notify plaintiff that the estimated cash surrender value of the policy would not be realized, and the failure of defendant to maintain an equation fund sufficient to realize such estimate was not violative of the terms of plaintiff’s policy.
    The apportionment of the equation fund made by defendant was equitable: Uhlman v. Insurance Co., 109 N. Y. 421 (17 N. E. Repr. 363).
   Per Curiam,

The judgment is affirmed on the opinion of Judge Shafer discharging the rule for judgment for want of a sufficient affidavit of defense.


author: Mr. Justice Elkin,

text:
    Boak, Appellant, v. New York Life Insurance Company.

      Insurance — Life insurance — Reformation of policy — Evidence.
    Where an endowment insurance policy provides that the insured, if living, at a date specified shall be entitled to one of four benefits, and there is nothing in the policy itself to indicate that the beneficiaries, and not the insured, were to be entitled to the benefits named, a court of equity will not reform the policy so as to change the word “insured” to “beneficiaries” in the absence of evidence of the kind, quality and quantity required by a court of equity as a warrant to reform a written instrument.
    Argued Oct. 28, 1909.
    Appeal, No. 183, Oct. T., 1909, by plaintiffs, from decree of C. P. No. 4, Allegheny Co., First Term, 1909, No. 797, on bill in equity in case of Nana M. Boak et al. v. New York Life Insurance Company, Claud E. Griffey et al.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction and to reform an endowment life insurance policy.

      From the record it appeared that in 1888 Charles Donnelly, Sr., took out a twenty-year endowment policy on the life of his son Charles Donnelly, Jr.
    The ninth and tenth clauses of the bill were as follows:
    9. That there appears in the “provisions, requirements and benefits referred to in this policy,” a printed clause, which reads in part as follows: “At that date (to wit, October 30, 1908), if the insured is living and this policy is in force, the insured shall be entitled to one of the following benefits ” — naming four. Your orators are advised and believe that the word “insured” in reference to the one or ones entitled to benefits was allowed to remain in the printed form used by the insurance company through mutual mistake, and that the clause should read so as to confer benefits on the one or ones referred to in the written application, and in the prior portions of the policy, as the beneficiary or beneficiaries, to wit: “Roselia Donnelly, mother of the insured, or, in the event of her prior death, her children by Charles Donnelly, or their executors, administrators or assigns.” Your orators are advised and believe that, by the terms of the written application and of the parts of the policy which express the true intent of the parties when the policy was issued, all of the children of Roselia Donnelly by Charles Donnelly have a vested interest in the amount of insurance money payable by the terms of the policy, and an interest which cannot be defeated by any attempted selection or option by Charles Donnelly, Jr., for his sole benefit, to the exclusion of your orators.
    10. .That Charles Donnelly, Jr., has and is threatening to collect the total amount of the insurance money by legal means, or in divers other ways, for his sole benefit.
    The fourth prayer was as follows:
    4. To reform the clause in said policy referred to in the ninth paragraph of this bill, so as to read as follows: “At that date, if the insured is living and this policy is in force, the beneficiary or beneficiaries above named, to wit, Roselia Donnelly, or, in the event of her prior death, her children by Charles Donnelly, or their executors, administrators, or assigns, shall be entitled to one of the following benefits.”

      The court entered the following decree:
    And now, to wit, July 30, 1909, this cause came on to be heard at this term, and thereupon it is ordered, adjudged and decreed as follows:
    That the exceptions of plaintiffs to the decree nisi be and are hereby dismissed;
    That the policy of insurance set forth in the bill is not the result of any mistake, but correctly expresses the intention of the parties at the time it was applied for, executed and delivered.
    That the said Charles Donnelly, Jr., is entitled to the full amount of the proceeds of said policy deposited under the decree, heretofore made by the agreement of all parties in interest, to wit, the sum of $21,890.17, with accrued interest thereon since the deposit thereof, admitted by all parties to be the exact amount of money for which the said New York Life Insurance Company is liable after payment in full of the amount which was due to Claud E. Griffey, subject, however, to the payment of the premium of insurance hereinafter decreed, and that the sum so deposited with interest thereon, less the sum of $1,083.73, be paid to said Charles Donnelly, Jr.
    That out of said fund there shall be paid to the plaintiffs the sum of $984, being the twentieth and last premium upon said policy, which was paid out of their money, with interest thereon from October 30, 1907, $99.73, making $1,083.73.
    And it is further ordered, adjudged and decreed that plaintiffs pay one-half of the costs of their proceedings, and that said Charles Donnelly, Jr., pay the other half thereof.

      Error assigned was decree of the court.

      R. H. Hawkins, of Dalzell, Fisher & Hawkins, for appellants.
    The face of the policy itself, that is, the part printed in large type and containing the various necessary written insertions, indicates the insurance money was payable in any event to Roselia Donnelly, or her children: Grandin v. Insurance Co., 107 Pa. 26; Moore v. Lichtenberger, 26 Pa. Superior Ct. 268.

      January 3, 1910:
    By the designation of Roselia Donnelly, or in the event of her prior death, her children, as the beneficiary, the policy vested in Mrs, Donnelly during her lifetime, and in all her children after her death, an interest in the amount of the insurance which cannot be divested: Smith v. Life Ins. Co., 34 Pa. Superior Ct. 72; Entwistle v. Ins. Co., 202 Pa. 141; Ex parte Dever, L. R. 18 Q. B. Div. 660; Brown’s App., 125 Pa. 303; New York Life Ins. Co. v. Ireland, 14 L. R. A. 278.
    Cash surrender value is payable only to beneficiaries: Pingrey v. Ins. Co., 144 Mass. 374 (11 N. E. Repr. 562); Waltz v. Mutual Aid Society, 5 Pa. C. C. Rep. 208; Chapin v. Fellowes, 36 Conn. 132; Lemon v. Ins. Co., 38 Conn. 294; Ricker v. Charter Oak Life Ins. Co., 27 Minn. 193 (6 N. W. Repr. 771); Jones v. Jones, 23 Pa. C. C. Rep. 254.
    That the court may make such a reformation is well settled in numerous cases: Thompson v. Phœnix Ins. Co., 136 U. S. 287 (10 Sup. Ct. Repr. 1019).

      C. C. Dickey, with him W. K. Shims and Blakeley & Calvert, for appellees.
    The bill was met by a responsive answer, and at the trial the plaintiffs failed to produce any evidence whatever to prove the alleged mistake. They were not entitled to any relief: Tennes v. Life Ins. Co., 26 Minn. 271 (3 N. W. Repr. 346); Frazier v. Monroe, 72 Pa. 166; Shafer v. Senseman, 125 Pa. 310; Burt v. Burt, 218 Pa. 198.
   Opinion by

Mr. Justice Elkin,

Unless the evidence produced at the hearing was sufficient to require the chancellor to reform that part of the contract set forth in the ninth paragraph of the bill as requested in the fourth prayer, appellants have no case. No evidence, parol or documentary, was offered which would warrant such a reformation, and the case stands upon the application and the policy itself. Reliance is placed upon Thompson v. Insurance Company, 136 U. S. 287, as authority for the proposition that reformation may be decreed upon the contract itself without evidence of the fraud, accident or mistake required to reform written instruments. In that case, however, the bill averred a mutual mistake to which a demurrer was filed and the court held the averments of the bill were admitted by the demurrer to be true and the record thus presented was sufficient to support a decree of reformation. In the case at bar the answer was responsive and denied that any mistake ivas made in the execution of the contract of insurance. Clearly in such a case the burden is on the complaining party to overcome the plain provisions of a contract by evidence of the kind, quality and quantity held to be sufficient to warrant a reformation of covenants deliberately and formally entered into. No such-evidence was produced in this case and the contract must stand as written. The policy, upon the life of the son and intended primarily for his benefit, was issued at the instance of the father with the ultimate purpose, in the event of the insured dying during the period fixed, or if for other reasons the insured did not avail himself of the rights and benefits accruing to him under the contract, of making Roselia Donnelly, mother of the insured, the beneficiary, or in the event of her prior death her children by Charles Donnelly to take the proceeds share and share alike. All this appears in the plain and unambiguous terms of the contract, which is an ordinary endowment policy consistent throughout. The contract of insurance in unmistakable terms provides that the insured shall be entitled to one of four optional benefits at the date of its maturity. He has exercised his option by selecting the third benefit and notifying the insurance company in the manner set forth in the policy. The insured is standing upon the express provisions of the contract, and Courts are not at liberty to say he is not entitled to the benefits therein stipulated. This was the conclusion reached by the learned court below, and we see no reason to disturb it.

Decree affirmed at the cost of the appellants.


author: Mr. Justice Brown,

text:
    Pittsburg Railways Company v. Pittsburg, Appellant.

      Railroads — Crossing street — Municipal consent — Act of April 4, 1868, P. L. 62.
    1. When a municipality stands upon its right to resist the occupation or crossing of one of its streets by a railroad or street railway company, the condition of the street is not involved, for it is no concern of the invading company that the municipality may not properly maintain the highway for the use of the public.
    2. When a railroad or street railway company attempts to cross a public street in a city without municipal consent, it must point to a power in its charter to do so, and it is immaterial that it owns the land on both sides of the street.
    3. The extension of a leased road over a public street without municipal consent, where such consent is requisite under the charter of the leased road, cannot be effected by the lessee although the latter under its charter may have power to cross streets without obtaining the municipal consent.
    4. The doctrine of implied power is not to be stretched to permit that to be done by a corporation which the legislature has previously said shall not be done, even if without such implied power the grant of some particular franchise should be valueless.
    Argued Oct. 28, 1909.
    Appeal, No. 150, Oct. T., 1909, by defendant, from decree of C. P. No. 4, Allegheny Co., Third Term, 1909, No. 675, awarding preliminary injunction in case of Pittsburg Railways Company v. City of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in awarding preliminary injunction.

      C. A.. O’Brien and C. K. Robinson, for appellant.
    The Pittsburg Railways Company is now attempting to cross a public street without municipal consent: Quicksall v. Philadelphia, 177 Pa. 301; Philadelphia v. Thomas, 152 Pa. 494.
    January 3, 1910:
    The right of the railway company as alleged owner of abutting property, is immaterial: Wettengel v. Allegheny County Light Co., 223 Pa. 79.
    A railroad company under the act of 1868, has no power to cross a city street without municipal consent.
    Pittsburg Railways Company only has powers in this case of lessor company: Potts v. R. R. Co., 161 Pa. 396; Mory v. Ry. Co., 199 Pa. 152.
    The Pittsburg Railways Company is subject to provisions of Act of May 6, 1909, P. L. 458. Penna. R. R. Co. v. Miller, 132 U. S. 75 (10 Sup. Ct. Repr. 34); Pearsall v. Great Northern Ry. Co., 161 U. S. 646, 664 (16 Sup. Ct. Repr. 705); Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503, 517 (22 Sup. Ct. Repr. 95).

      David A. Reed, of Reed, Smith, Shaw & Beal, with him Wm. M. Robinson, for appellee,
    cited: Penna., etc., R. R. Co. v. P. & R. R. R. Co., 160 Pa. 277; Northern Coal & Iron Co. v. Wilkes-Barre, 218 Pa. 269; Penna. R. R. Co.’s App., 115 Pa. 514.
   Opinion by

Mr. Justice Brown,

The Mount Washington Street Railway Company is a corporation chartered under the general street railway acts of the commonwealth, and the Pittsburg & Castle Shannon Railroad Company was incorporated under the general railroad Act of April 4, 1868, P. L. 62. By leases dated respectively March 30, 1903, and August 25, 1905, the Pittsburg Railways Company became the lessee of these two companies. It was originally incorporated as the Surety Contract Company by the Act of May 25, 1871, P. L. 1170, and, under its present name, has accepted the provisions of the constitution of 1874. By the act incorporating it it is empowered “to contract with any person or persons, firms, corporations or any other party, howsoever formed, existing, or that may hereafter exist, in any way that said parties, or any of them, may have authority to do, to build, construct, maintain or manage any work or works, public or private, which may tend or be designed to improve,' increase, facilitate or develop trade, travel or the transportation and conveyance of freight, live stock, passengers and any other traffic, oby land or water, from or to any part of the United States, or the territories thereof; .... and to purchase, make, use and maintain any works or improvements connecting or intended to be connected with the works of the said company, and to merge or consolidate or unite with the said company.” Under these broad terms the Pittsburg Railways Company asserts power to construct an extension or branch from the Pittsburg & Castle Shannon railroad to connect with the tracks of the Mount Washington Street Railway Company. This branch is to be constructed over rights of way owned by the appellee, but Chess street, in the city of Pittsburg, will be crossed by it practically at right angles, and the single question before us on this appeal is the right of the appellee to build the branch across the said street without the city's consent.

The court below has found that Chess street is one of the highways of the city, beneath which a sewer has been constructed, and the- appellee has not obtained municipal consent to build the branch across it; but, notwithstanding'this, the preliminary injunction prayed for by the appellee was awarded, enjoining the city from interfering with the building of the branch over the street. In the opinion sustaining the contention of the appellee that it has power to cross the street without the city's consent reference is made to the impassable condition of the highway at the point of the intended crossing and for some distance on either side thereof, and the conclusion of the court Avas .that, under the circumstances, neither the city nor the public would noAV suffer any inconvenience from the crossing, and that, if in the future inconvenience should be suffered by it, power exists to enforce a remedy. When a municipality stands upon its right to resist the occupation or crossing of one of its streets by a railroad or street railway company, the condition of the street is not involved, for it is no concern of the invading company that the municipality may not be properly maintaining the highway for the use of the public. The court’s reference to the condition of the street, apparently as one of the reasons why the injunction should not go out, is utterly inconsistent with the view properly expressed in another portion of the opinion, that this street, even in its present condition, could not be crossed without the city’s consent, either by the Pittsburg & Castle Shannon Railroad Company, the Mount Washington Street Railway Company or the appellee as the lessee of either. Equally immaterial is the fact commented upon in the opinion that the appellee is the abutting owner of the land on each side of the street at the point of the proposed crossing. With or without such ownership, when a railroad or street railway company attempts to cross a public street in a city without municipal consent, it must point to its power in its charter to do so, and the court below, after the irrelevant references to. the condition of the street and to the appellee’s alleged ownership of the adjoining lands, held that the power which it would exercise is to be found in its charter as existing by necessary implication. The learned chancellor’s view as to this is thus expressed: “Power is therein expressly conferred upon the plaintiff to contract with any other party to construct any work which may tend to improve, increase, facilitate or develop trade, travel or the transportation of freight and passengers, and to erect, construct, maintain or conduct, in its own name and for its own benefit, any such work. And the plaintiff is likewise authorized to 'make, use and maintain any works or improvements, connected or intended to be connected with the works of the said company.’ Now both the Pittsburg & Castle Shannon Railroad and the Mount Washington Street Railway are plainly 'works’ of the plaintiff corporation, within the meaning of said act. The proposed track and sidings are of course intended to connect these two 'works’ of the plaintiff. The power to make the connection is plainly conferred upon the plaintiff in the said act of its incorporation. There is no limitation upon the discretion of the plaintiff, as to where this connection shall be made. In making the connection, as intended, it is necessary to cross Chess street at the point indicated. Therefore the plaintiff has the right to cross Chess street as a necessary implication of its grant; otherwise the grant would entirely fail. If the plaintiff cannot cross Chess street with its intended construction, it cannot exercise the power with which the legislature has clothed it: Perry County R. R. Extension Co. v. Newport & Sherman’s Valley R. R. Co., 150 Pa. 193.” In thus reasoning and concluding the court below failed to bear in mind that though the tracks which the appellee proposes to lay from the Pittsburg & Castle Shannon Railroad will be a “work” of its own, connecting two “works,” to be regarded also as its own under the leases, the branch, with its sidings, will, after all, be but an extension and part of the Pittsburg & Castle Shannon Railroad. That company concededly could not cross Chess street without the city’s consent, and how can another, now controlling' and operating it, do what it could not do in the absence of express power from the legislature to do the thing forbidden to the railroad company? The branch or extension is for the purpose of increasing the facilities of transportation now furnished by the Pittsburg & Castle Shannon Railroad Company through its lessee, and, keeping in view the fact that Chess street, if crossed, will be crossed by a part of the system of the Pittsburg & Castle Shannon Railroad, the right to so cross, in the teeth of the act of 1868, must expressly appear, for the doctrine of implied power is not to be stretched to permit that to be done by a corporation which the legislature has previously said shall not be done, even if without such implied power the grant of some particular franchise should be valueless. With this distinction in mind, the case of Perry County R. R. Extension Co. v. Newport & Sherman’s Valley R. R. Co., relied upon by the court below, is not at all in point. While we there held that though the Act of February 19, 1849, P. L. 79, contains no express authority allowing one railroad company to cross the tracks of another, such power exists under that act by necessary implication, because the grant in some instances would entirely fail, we could not have so decided if the act of 1849 had forbidden such a crossing; and so of Northern Coal & Iron Co. v. Wilkes-Barre, 218 Pa. 269, in which, for reasons stated at some length in the opinion, we held that the company, under its charter, had the implied right to cross certain streets of the city of Wilkes-Barre.

In view of the act of 1868, there is no implied power in the appellee to cross Chess street. •

The decree of the court below is reversed and the preliminary injunction is dissolved, the costs on this appeal to abide the final decree.


text:
    People’s National Bank of Pittsburg v. Liquid Carbonic Company, Appellant.

      Nuisance — Encroachment on street — Plan of lots — Injunction— Equity — Estoppel—Mortgage.
    1. Where an owner of land included in a plan of lots encroaches by mistake with a structure on one of the lots he may be compelled to remove the obstruction at the suit-of an owner of one of the other lots, if it appears that the encroaching owner was not' misled or deceived by the complaining owner, and that the latter had continually protested against the encroachment, and that all the parties had the same means of ascertaining the location of the street.
    2. The rights of a mortgagee cannot be impaired or affected by the manner in which the mortgagor deals with the property. Thus the acquiescence or consent of the mortgagor cannot prevent the mortgagee from invoking the aid of a chancellor to remove an illegal obstruction on a street in which the mortgagee has an easement.
    3. The fact that the mortgagee permitted the mortgagor to lay out the mortgaged land in lots and streets is not sufficient to warrant the conclusion that it acquiesced in or adopted the action of the mortgagor in permitting an illegal obstruction to be erected on-one of the streets.
    Argued Oct. 28, 1909.
    Appeal, No. 156, Oct. T., 1909, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 617, on bill in equity in case of The People’s National Bank of Pittsburg and William T. Wallace v. Liquid Carbonic Company.
    Before Fell, Brown, Mestrezat, Potter and Elicin, JJ.
    Affirmed.
    Bill in equity for an injunction.

      Miller, J., specially presiding, filed the following opinion:
    FINDINGS OF FACT.
    1. The People’s National Bank, one of the plaintiffs, is a corporation under the laws of the United States. The Liquid Carbonic Company, the defendant, is a corporation under the laws of Illinois, and is duly registered and authorized to do business in the state of Pennsylvania. The former is engaged in the general banking business; the latter is engaged in the manufacturing business.
    2. William T. Wallace, the other plaintiff, became the owner by deed from Richard B. Baum, dated February 20, 1890, duly recorded, of a large tract of land, bounded by Winebiddle avenue, Cypress street, Gross street, and the right of way of the Pennsylvania Railroad Company, being lot No. 8 as shown in the plan áttached to the partition proceedings of the estate of Rebecca Baum, deceased; this plan shows, inter alia, the extension of Winebiddle avenue and Gross street in straight lines to the said Pennsylvania Railroad’s right of way.
    Subsequently, on May 6, 1890, Wallace also become the owner, but no longer holds any portion, of another large tract of land in said Baum partition plan east of Winebiddle avenue, extending along the line of the said Pennsylvania Railroad right of way, and being lot No. 7 in said partition plan. These lots and lands are in the former sixteenth ward of Pitts-burg.
    3. Wallace laid out both of said tracts in a plan of lots known as the Wallace Plan of Ben Venue Lots; this plan was adopted by him March 4, 1891; approved by the then director of the department of public works in the city of Pittsburg on March 5, 1891, and by the common and select councils of said city on March 30, 1891, and duly entered in the office of the city engineer of said city; the plan was not presented to or approved by the mayor; on the plan are located, inter alia, Winebiddle avenue, sixty feet wide, being a continuation of said avenue to the Pennsylvania Railroad and extending north and south; Yew street, thirty feet wide, extending east and west; Asia and Lima alleys, twenty feet wide, the former extending north and south from Cypress street to the Pennsylvania Railroad, and the latter from Asia alley east and west twenty feet to Winebiddle; also Gross street, fifty feet wide, extending north and south toward and along, but not extending to the line of the Pennsylvania Railroad.
    4. From, and according’ to this plan, Wallace sold, and there was otherwise disposed of, all of the property described in the first deed to him excepting lot No. 5, fronting twenty feet on Gross street, between Yew and Cypress streets, extending back to Asia alley, which lot he still owns. The People’s National Bank is the owner by foreclosure proceedings on a mortgage owned by it and by subsequent equity proceedings, of lots 6 to 10, inclusive, between Cypress and Yew streets, each fronting twenty feet on Gross street and extending to Asia alley; also lots 24 to 33, inclusive, between Gross street and Winebiddle avenue, fronting twenty feet on the northerly side of Yew street and extending back northwardly to Lima alley; also lot No. 23, fronting 24.83 feet on Yew street and extending along Winebiddle avenue 100 feet to Lima alley. Prior to the sale by Wallace to the defendant, as described in the next finding, Wallace had disposed of lots to other parties, among which were sales to one George Gledhill.
    5. By deed dated September 15, 1891, duly recorded, Wallace sold to the defendant company their present holding; being a lot on the. southwestern corner of Winebiddle and Yew street, along Winebiddle about 180 feet to the line of the Pennsylvania Railroad, and westwardly along said Pennsylvania Railroad 120 feet. In said deed is the following reservation: “Subject to the reservation to the parties of the first part of a right of way twenty-five feet in width along the northerly line of the right of way-of the Pennsylvania Railroad, from Winebiddle avenue to other property of the parties of the first part, to be used for a railroad switch and as a roadway for persons, vehicles and cars by the parties of the first and second part, their heirs and assigns.” At that time Wallace owned property extending westwardly along the line of the Pennsylvania Railroad, all of which has since been conveyed to the Duquesne Reduction Company, a defendant in the suit at No. 616, September Term, 1908, and heard herewith.
    6. The defendant company constructed its main building of brick, two stories in height, with foundations twenty-two feet deep in the rear, projecting out and into Winebiddle avenue a distance of seven feet at its northeast corner, said encroachment diminishing to nothing as the building runs towards the Pennsylvania Railroad. The defendant had employed an engineer who surveyed the lot and placed the pins for the dimensions of the building so encroaching upon the street, and the contractor employed by the defendant company made the excavations and constructed the foundations and erected the building in accordance with said pins. The engineer or surveyor had access to the plan in the city engineer’s office. Shortly after its erection Wallace notified defendant of the encroachment. He from that time and since has protested against the erection of the building on this street. At a later period the defendant company enlarged said building without making any change along the line of its original construction so far as the encroachment was concerned.
    7. ’ The defendant has also erected, or caused to be erected, and at present maintains wooden structures or sheds attached to its main building on and across Yew street, completely taking possession thereof and rendering it impassable; it also maintains a shed or wooden building and an engine house near the center of Winebiddle avenue, as well as an incline plane occupying the Center of said Winebiddle avenue, used to haul up, from their manufactory, loaded wagons. This incline plane was first constructed by one of Wallace’s tenants; its use was permitted by Wallace; afterwards he acquired the ownership thereof, and in -1904 he sold it to the defendant.
    8. On the right of way reserved by Wallace in defendant’s-deed the latter had constructed a concrete foundation extending upward from the surface ten to twelve inches, impeding the right of way as a roadway for persons and vehicles. They also operate a railroad siding or switch from the line of the Pennsylvania Railroad into and along their works over the right of way reserved in their deed. This siding or switch was originally built by Wallace and extended from the Pennsylvania Railroad eastwardly along the property now of the American Reduction Company, of the defendants, and across Winebiddle avenue to other property of Wallace on the east. This railroad switch or siding is no longer used east of Winebiddle avenue, nor is there any evidence that a reservation was in the deeds of the present owners of the land there located, nor are they parties to this proceeding.
    9. In a suit reported in 219 Pa. 457, between the defendant as plaintiff and the plaintiffs here as defendants, a road or right of way was adjudged and defined as existing and extending in a southeastwardly direction from Gross street across lots 5, 6, 7 and 8, -across Asia alley,and across lots 23 to 33, inclusive, terminating in the latter lot at the corner of Yew and Winebiddle; this road so defined practically cuts in two the lots owned by the People’s National Bank, and also crosses lot No. 5, still owned by Wallace. The road is well defined now, and has been and is extensively used by the defendant with its teams and employees as the means of ingress and egress to and from its factory. While the evidence is that the defendant uses the incline plane with the machinery connected therewith in the hauling of heavy loads up Winebiddle avenue, there is no evidence that the road or right of way which they enforce over the plaintiffs’ land is not and cannot be made entirely feasible for the transportation of all their products. Further, it does not appear that a feasible road for egress and ingress does not in addition exist over the rights of way of defendant’s and Duquesne Reduction Company’s lots to Gross street, the latter being a graded and paved street. The road across the lots in question has diminished their value.
    It was also found in said proceeding that Yew street, Winebiddle avenue and the alleys heretofore named as laid out in Wallace’s plan were never declared opened or improved by the city of Pittsburg and were not, to that extent, public highways.

      CONCLUSIONS OP LAW.
    1. All the structures placed, or used, or operated, or maintained, . by the defendant on Yew street and on Winebiddle avenue, which includes all the sheds, engine house, incline plane, and the diagonal corner of the main building, are unlawful encroachments upon these defined and dedicated streets and must be removed.
    2. The right of way reserved in the defendant’s deed is an easement appurtenant to its lot. The plaintiffs not being the owners of any lots immediately appurtenant to the right of way reserved have no interest therein.
    3. The plaintiffs are entitled to the free and uninterrupted passage over and upon all the streets and alleys in the Wallace Ben Venue Plan of Lots.
    4. The creation and adoption of the plan of lots by Wallace, its approval by the chief of the department of public works and by the councils of the city of Pittsburg, its entry in the records of the office of the city engineer of said city and sales of the lots according to the same, constitute an irrevocable dedication by Wallace; to the public use, of all the streets and alleys marked and shown in said plan, and all lot owners in the plan are entitled to the free and uninterrupted use thereof. The defendant by accepting deeds bounding its properties by Yew street and Winebiddle avenue had record notice of the existence and location of all the streets and alleys upon which its properties abutted; it cannot obstruct the same, or use them, or any part thereof, to the exclusion of any other parties interested in the plan as owners of lots or otherwise.
    The court entered the following decree:
    And now, to wit, July 14, 1909, this cause came on to be, heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows:
    1. That the defendant, the Liquid Carbonic Company, be and it is hereby commanded and required to remove from Winebiddle avenue and Yew street all the structures placed, used, operated or maintained by said company on said streets, including all sheds, the engine house, the incline plane and the diagonal corner of the main building of said company, within one year from this date.
    2. That the defendant pay the costs of this proceeding.

      Error assigned amongst others was the decree of the court.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him William A. Seifert, for appellant.
    The plaintiffs were guilty of laches: Tozier v. Brown, 202 Pa. 359; Redmond v. Saving Fund, 194 Pa. 643; Arnold v. Cornman, 50 Pa. 361; Keichline v. Hornung, 189 Pa. 560; Trout v. Lucas, 54 N. J. Eq. 361 (35 Atl. Repr. 153).
    The decree of a chancellor is of grace, not of right, and he is not bound to make a decree which will do far more mischief and work far greater injury than the wrong which he is asked to redress: Charlier’s Block Coal Co. v. Mellon, 152 Pa. 286; Richards’s App., 57 Pa. 105; Dilworth’s App., 91 Pa. 247; McCaffrey’s App., 105 Pa. 253; Power’s App., 125 Pa. 175; Heilman v. Lebanon, etc., Ry. Co., 175 Pa. 188; 180 Pa. 627; Wahl v. Cemetery Association, 197 Pa. 197; Keeling v. Railway Co., 205 Pa. 31.
    The plaintiffs do not come into court with clean hands: Keichline v. Hornung, 189 Pa. 560.
    The bank, having ratified Wallace’s acts in laying out these streets after the making of the mortgage, takes its rights in the streets as of the date of the sheriff’s sale in 1895. By that time the laches and estoppel of Wallace were complete, and the bank therefore stands in no higher position than he. An estoppel always binds privies in title: Chambers v. R. R. Co., 139 Pa. 347; Wahl v. Ry. Co., 158 Pa. 257; Allegheny County Light Co. v. Booth, 216 Pa. 564; Messner v. Ry. Co., 13 Pa. Superior Ct. 429.

      J. Roy Dickie, with him Wm. W. Wishart, for appellees. — •
    A sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it to public use, and any lot owner in the plan may assert the public character of such a street, and his right to have it kept open and free from obstructions: Garvey v. Refractories Co., 213 Pa. 177; Ferguson’s App., 117 Pa. 426; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92; Quicksall v. Philadelphia, 177 Pa. 301; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Witman v. Smeltzer, 16 Pa. Superior Ct. 285; Wickham v. Twaddell, 25 Pa. Superior Ct. 188; McGuire v. Wilkes-Barre, 36 Pa. Superior Ct. 418.
    January 3, 1910:
    There can be no estoppel where the party alleging the estoppel must be considered to have had notice of all the facts and where it cannot be said that such party was misled to his disadvantage: Wright’s App., 99 Pa. 425; Bigelow on Estoppel, 437; Hill v. Epley, 31 Pa. 331; Wickham v. Twaddell, 25 Pa. Superior Ct. 188; Garvey v. Refractories Co., 213 Pa. 177; Weist v. Grant, 71 Pa. 95; Brandmeier v. Pond Creek Coal Co., 219 Pa. 19.
    The mortgagor cannot in any manner impair the rights of the mortgagee by the manner in which he deals with the property: King v. McCully, 38 Pa. 76; McMannis v. Butler, 49 Barb. (N. Y.) 176; Western Union Telegraph Co. v. R. R. Co., 90 Fed. Repr. 379; Cannon v. Boyd, 73 Pa. 179; Trout v. Lucas, 54 N. J. Eq. 361 (35 Atl. Repr. 153).
   Opinion by

Mr. Justice Mestrezat,

This was a bill for a mandatory injunction to compel the removal of certain structures erected on a street in a plan of lots laid out and duly recorded. The learned judge has found and clearly stated all the facts, and Ms conclusions of law are supported by our cases. The decisions of tMs court, relied on by the appellant, are clearly distinguishable from the authorities applicable to the facts of this case, as pointed out in the opinion of the common pleas.

The plaintiffs are the owners of certain lots in a plan duly laid out and recorded, and allege that the defendant company has obstructed one of the streets of the plan. The defendant concedes that the owner of a lot in such a plan has a covenant that the streets of the plan shall forever remain open for the public use, and that the legal rights of the plaintiffs in the streets are undisputed. The only question here, as suggested by the defendant company, is how far those legal rights may become unenforceable in chancery by reason of laches and estoppel. This is a very narrow question, and the facts warranted the learned court below in deciding it against the appellant.

The right of the defendant to resist the removal of the building and incline plane from the streets by reason of lapse of time, acquiescence in the encroachments, irreparable damage to the defendant, and relief disproportionate to the alleged injury is, as suggested by the trial judge, conclusively settled against the defendant by the recent case of Garvey v. Refractories Co., 213 Pa. 177.

The case is wholly devoid of any facts which would estop the plaintiffs from asserting their legal right to have the brick building removed from Winebiddle avenue. It is conceded that at the time of the construction of this building, the defendant company knew that Winebiddle avenue was one of the streets plotted in the plan and that it was bound to recognize that fact in dealing with the property. It is contended, however, that the encroachment by the building on the avenue was an innocent mistake made by the surveyors employed by the defendant to survey the land and determine the location of the avenue. The location of the building was made with reference to this survey. In all this, however, we fail to see any justification for the encroachment upon the street. The company knew of the existence of the avenue, concedes that it had no right in law to encroach upon it and that the encroachment resulted from a mistake made by its own employees in locating the building. It is not claimed that either of the plaintiffs misled the defendant as to the proper location of the avenue or, by any act or conduct, was responsible for the location of the building. On the contrary, the learned judge finds from sufficient evidence that shortly after the erection of the building, Wallace notified the defendant of the encroachment, and from that time and since has protested against its erection on the street. We therefore fail to see anything in the case which shows laches or grounds of estoppel as against either of the plaintiffs. The defendant company relied upon its own investigations to ascertain the location of the avenue, and hence it is not in a position to claim an estoppel even on the ground of innocent mistake. This mistake was made by its own servants and hence must be regarded as having been made by itself. For this the plaintiffs are not responsible. The defendant company knew the location of the avenue as well and possibly better than the plaintiffs; it had the same means of ascertaining the location of the street as had the plaintiffs, and it used those means for the purpose. The means of knowledge of both of the parties were therefore equal. Conceding, as the defendant company does, that it had no legal .right to encroach upon the avenue with its building, it has clearly shown nothing which should stay the hand of a chancellor in enforcing the right of the plaintiffs to have the obstruction removed. That, as we have seen, is the only ground upon which it seeks to defend this action.

It is further maintained by the defendant company that Wallace is estopped from asserting any right to have this building removed by reason of his conduct, and it is claimed by the defendant that the People’s National Bank, the other plaintiff, can have no better claim or higher right than Wallace. This position, however, we regard as untenable. If we should eliminate Wallace from the case, the People’s Bank unquestionably, we think, could maintain the action. The bank holds title to its lots by virtue of a sheriff’s sale under a foreclosure proceeding on a mortgage executed .and recorded in February, 1890. The title to the property therefore vested in the People’s National Bank as of that date. The defendant company acquired title to its lots in the plan by deed dated September 15, 1891, and soon thereafter constructed its building which encroaches on Winebiddle avenue. At the time of the encroachment the bank did not have title to or possession of the premises which it subsequently acquired. Hence there can be no ground whatever for the contention that the bank is estopped from asserting its legal fight to have the encroachment removed. The rights of a mortgagee cannot be impaired or affected by the manner in which the mortgagor deals with the property. He cannot incumber the property by a lien or easement which would not be divested by a sale on foreclosure proceedings, nor can the acquiescence or consent of the mortgagor prevent the mortgagee from invoking the aid of a chancellor to remove an illegal obstruction upon a street on which the mortgagee has an easement. This is settled law. The People’s Bank, therefore, is not affected by any act or conduct tif Wallace since the record of the mortgage, and such conduct will not raise an estoppel against the bank. It is true that a mortgagee may adopt or acquiesce in the acts or conduct of the mortgagor and become responsible therefor, but such adoption or acquiescence by the mortgagee must be made to appear. The fact that the mortgagee, in the present case, permitted the mortgagor to lay out the land in lots and streets is not sufficient to warrant the conclusion that it acquiesced in or adopted the action of .the mortgagor in permitting an illegal obstruction to be erected on one of the streets. . Some affirmative action on the part of the mortgagee would be necessary to warrant such a conclusion. There is nothing in this case to justify a belief that the bank ever acquiesced in the encroachment of this building on the street.

There was no authority for the construction of the incline plane on Winebiddle avenue. It was an obstruction which the lot owners in the plan had a right to have removed. The fact that Wallace at one time owned it does not alter the case. The nuisance was liable to abatement at any time at the suit of a lot owner. The ownership by Wallace was, as suggested in the argument, a purely personal matter and entirely apart from the ownership of property in the vicinity. The People’s National Bank had nothing to do with it, and it does not appear that it knew of its existence. In asserting its alleged equity to have this incline remain on Winebiddle avenue, the defendant company claims that it is “the only means of drawing its wagons to- the public streets.” The learned judge who heard the case does not agree with that conclusion. He finds that the road extending from Winebiddle avenue through plaintiffs’ lots to Gross street, and adjudged a public highway by this court in Liquid Carbonic Co. v. Wallace, 219 Pa. 457, is sufficient to afford the defendant adequate means of ingress and egress to and from its factory. On this question, he says: “While the evidence is that the defendant uses the incline plane with the machinery connected therewith in the hauling of heavy loads up Winebiddle avenue, there is no evidence 'that the road or right of way which they (defendant company) enforce over the plaintiffs’ land is not and cannot be made entirely feasible for the transportation of all their products. Further it does not appear that a feasible road for egress and ingress does not in addition exist over the rights of way of defendant’s and Duquesne Reduction Company’s lots to Gross street, the latter being a graded and paved street.”

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


author: Mr. Justice Potter,

text:
    Valjago v. Carnegie Steel Company, Appellant.

      Negligence — Master and servant — Contributory negligence — Assumption of risk — Act of May 2, 1905, P. L. 352 — Volenti non fit injuria— Words and phrases.

    1. In a claim for negligence by an employee against his employer the maxim “volenti non fit injuria” cannot be invoked by the defendant unless he shows that the plaintiff not only knew the circumstances but that he also appreciated the full extent of the danger to which he was exposed by his employment, and that he voluntarily exposed himself to it. This makes the question of the assumption of risk one of fact, unless from the nature of the case it is clear of dispute in this connection.
    2. In a suit for damages by a workingman for injuries received by being caught in uncovered cogwheels, where there is evidence that the plaintiff, was a foreigner, with limited understanding of the English language; that he was not familiar with machinery, had never worked about cogwheels or gears until a few days before the accident, was given no instructions as to the duties and risks of his work, and that at no time previous to the accident, had the wheels been in motion when the plaintiff was performing duties similar to those he was engaged on at the time he was injured, it is not error for the trial judge to refuse to hold as a matter of law that the danger of working near the uncovered cogwheels was so open and obvious that the plaintiff had assumed a known risk, but this is a disputed question of fact and properly left to the jury.
    3. The defense of assumption of risk is not open to an employer whose employee is injured through a neglect to provide safeguards required by the Act of May 2, 1905, P. L. 352.
    4. The requirements of a statute adopted in the exercise of the police powers of the state for the protection of its citizens, cannot be impliedly waived by the parties to the contract of employment.
    Argued Oct. 28, 1909.
    Appeal, No. 158, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 197, on verdict for plaintiff in case of George Valjago v. Carnegie Steel Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,542.50. Defendant appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him L. H. Burnett, for appellant.
    It has everywhere been held that the risk of unguarded gears is one of the most obvious of all dangers from mechanical operations, and must be held to be appreciated by both adults and minors. Even in the federal courts, harsh as they are toward the employer in this class of cases, it is held that such a risk must be held to be appreciated by mere children: Eisenberg v. Fraim, 215 Pa. 570; Masterson v. Eldridge, 208 Pa. 242; Ruchinsky v. French, 168 Mass. 68 (46 N. E. Repr. 417); Burnell v. West Side R. Co., 87 Wis. 387 (58 N. W. Repr. 772); Higgins Carpet Co. v. O’Keefe, 79 Fed. Repr. 900 (25 C. C. A. 220).
    The maxim volenti non fit injuria is of universal application throughout our whole tort law: Denver, etc., R. R. Co. v. Norgate, 141 Fed. Repr. 244; Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685; O’Maley v. Gas Light Co., 158 Mass. 135 (32 N. E. Repr. 1119); Knisley v. Pratt, 148 N. Y. 372 (42 N. E. Repr. 986); Martin v. Chicago, etc., Ry. Co., 118 Iowa, 148 (91 N. W. Repr. 1034).
    An examination of the Pennsylvania cases in which this doctrine of assumption of risk was established shows clearly that no idea of contract was thought to be at the foundation of the principle: Frazie v. Penna. R. R. Co., 38 Pa, 104; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Pittsburg, etc., R. R. Co. v. Sentmeyer, 92 Pa. 276; Green, etc., Pass. Ry. Co. v. Bresmer, 97 Pa. 103; Rummell v. Dilworth, 111 Pa. 343; Wannamaker v. Burke, 111 Pa. 423; Brossman v. Lehigh Valley R. R. Co., 113 Pa. 490; Philadelphia, etc., R. R. Co. v. Hughes, 119 Pa. 301.
    A statute forbidden risk will be held to be assumed by the servant who appreciates it in precisely the same way that a common-law forbidden risk is held to be assumed: Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685; O’Maley v. Gas Light Co., 158 Mass. 135 (32 N. E. Repr. 1119); Marshall v. Norcross, 191 Mass. 568 (77 N. E. Repr. 1151); Knisley v. Pratt, 148 N. Y. 372 (42 N. E. Repr. 986); Higgins Carpet Co. v. O’Keefe, 79 Fed. Repr. 900; Birmingham R. & E. Co. v. Allen, 99 Ala. 359 (13 So. Repr. 8); Denver & Rio Grande R. R. Co. v. Norgate, 141 Fed. Repr. 247; Lead Co. v. Swyers, 161 Fed. Repr. 687; Cordage Co. v. Miller, 126 Fed. Repr. 495; Glenmont Lumber Co. v. Roy, 126 Fed. Repr. 524; Martin v. Ry. Co., 118 Iowa, 148 (91 N. W. Repr. 1034); Langlois v. Dunn Worsted Mills, 25 R. I. 645 (57 Atl. Repr. 910); Anderson v. Lumber Co., 67 Minn. 79 (69 N. W. Repr. 630); Swenson v. Osgood Mfg. Co., 91 Minn. 509 (98 N. W. Repr. 645); Helmke v. Thilmany, 107 Wis. 216 (83 N. W. Repr. 316); Kreider v. Wisconsin River Paper, etc., Co., 110 Wis. 645 (86 N. W. Repr. 662).
    Congress or a state legislature, in adopting an English statute, is ordinarily deemed to have adopted also the definite and known construction put thereon by the English courts prior to its adoption: Willis v. Banking Co., 169 U. S. 259 (18 Sup. Ct. Repr. 347); Mining, etc., Co. v. Gardner, 173 U. S. 123 (19 Sup. Ct. Repr. 327); Tucker v. Oxley, 9 U. S. 34; Pennock v. Dialogue, 27 U. S. 11; McDonald v. Hovey, 110 U. S. 619 (4 Sup. Ct. Repr. 142); R. R. Co. v. Moore, 121 U. S. 558 (7 Sup. Ct. Repr. 1334); Warner v. Ry. Co., 164 U. S. 418 (17 Sup. Ct. Repr. 147).
    The New York construction 'should prevail: Knisley v. Pratt, 148 N. Y. 372 (42 N. E. Repr. 986); McCarthy v. Emerson, 79 N. Y. Supp. 180; Sitts v. Knitting Co., 87 N. Y. Supp. 911; Stevens v. Gair, 96 N. Y. Supp. 303; Travis v. Haan, 103 N. Y. Supp. 973.

      T. Mercer Morton, with him S. S. Robertson, for appellee.—
    It is submitted this court will not say as a matter of law, plaintiff assumed the risk, but on the contrary a case was made out for the jury at common law: Bartholomew v. Kemmerer, 211 Pa. 277; Rummell v. Dilworth, 111 Pa. 343; Ricks v. Flynn, 196 Pa. 263; Sweigert v. Klingensmith, 210 Pa. 565; Schiglizzo v. Dunn, 211 Pa. 253; Laubach v. Copley Cement Co., 217 Pa. 361; Wilson v. Union Steel Castings Co., 223 Pa. 167; Patterson v. Pittsburg, etc., Ry. Co., 210 Pa. 47; Meade v. Pittsburg Rys. Co., 223 Pa. 145; Burnell v. West Side Ry. Co., 87 Wis. 387 (58 N. W. Repr. 772).
    It has been settled law in this state for many years, that the doctrine of assumption of risk is based upon the contractual relation between the parties: Bowen v. R. R. Co., 219 Pa. 405; Priestley v. Fowler, 3 Mees. & W. 1; Masterson v. Eldridge, 208 Pa. 242; Nuss v. Rafsnyder, 178 Pa. 397; Schall v. Cole, 107 Pa. 1; Hough v. Ry. Co., 100 U. S. 213; Tuttle v. Detroit, etc., Ry. Co., 122 U. S. 195 (7 Sup. Ct. Repr. 1166).
    The maxim volenti non fit injuria does not apply at all where the injury arose from a direct breach by the defendant of a statutory obligation: Federal Lead Co. v. Sawyer, 161 Fed. Repr. 161; Denver & Rio Grande R. R. Co. v. Norgate, 6 L. R. A. (N. S.) 981; Bryce v. Burlington, etc., R. R. Co., 119 Iowa, 274 (93 N. W. Repr. 275).
    Under all the testimony in this case the questions involved were of fact for the jury, under the statute as well as under the common law: Kiernan v. Eidlitz, 109 App. Div. 726; Terre Haute, etc., R. R. Co. v. Voelkner, 129 Ill. 540 (22 N. E. Repr. 20) Yarmouth v. France, L. R. 19 Q. B. Div. 647.
    January 3, 1910:
   Opinion by

Mr. Justice Potter,

This was an action brought to recover damages for personal injuries suffered by the plaintiff on August 25, 1905, while employed by the defendant company. He was directed to work at a billet conveyor, which consisted of a series of rolls, which were turned by beveled gears, and these gears were uncovered. Plaintiff’s duty was to pull billets of steel upon the conveyor, by means of a long hook with which he reached across the rolls. The operation of the rolls seems not to have been continuous, but they were only placed in motion as needed to feed the billets into the furnace. Ordinarily they were not in motion when the billets were being pulled upon the roll table by the men.

On the day of the accident, as the plaintiff was engaged in the performance of Ms duty, the rolls were started while he was standing in front of the uncovered cogwheels; a portion of his clothing was caught, and he was drawn in, and an arm was taken off by the rolls. The negligence with which defendant was charged, was leaving dangerous gearing or cogwheels uncovered.

The question of defendant’s negligence and of contributory negligence upon the part of the plaintiff were left to the jury. The trial judge also called the attention of the jury to’ the claim of the defense, that the danger from the uncovered cogwheels was so obvious that the plaintiff must have assumed the risk of working near them. No point was presented asking for specific instructions as to the assumption of the risk, but a general point asking for binding instructions in favor of the defendant was presented and refused, as was a motion for judgment non obstante veredicto. In its opinion, refusing the motion, the court below said, that in view of plaintiff’s ignorance of macMnery and its dangers, and of the evidence that no instruction or warning was given to plaintiff, it would have been error to have given binding instructions for the defendant, even leaving out of view the effect of sec. 11 of the Act of May 2, 1905, P. L. 352, which requires that “all vats, pans, saws, planers, cogs, gearing, belting,' shafting, set screws, grindstones, emery wheels, ñy-wheels, and machinery of every description (in an establishment where machinery is used) shall be properly guarded.” It is admitted that defendant failed to discharge this duty, which was imposed by the statute, and which might very well have been regarded as part of the duty of providing a reasonably safe place for the employees to work. As the case was tried, however, the defense of assumption of risk was left open to the defendant, notwithstanding its failure to provide the safeguards required by law.

Counsel for appellant are not satisfied, however, with the action of the court in leaving this question to the jury, but contend that the court should have held as a matter of law that under the circumstances of this case, the plaintiff did assume the risk, and cannot recover damages for his injuries. They urge the application of the maxim volenti non fit injuria. But before this maxim can be invoked, it must be shown that the plaintiff not only knew the circumstances, but that he also appreciated the full extent of the danger to which he was exposed by his employment, and that he voluntarily exposed himself to it. This makes the question of assumption of risk, one of fact, unless from the nature of the case, it is clear of dispute in this connection. Before the defendant can escape the consequences of its own negligence, upon the ground of the maxim volepti non fit injuria, it must appear clearly from the evidence, or there must be a finding of fact, that the plaintiff with full knowledge of the nature of the risk, impliedly took the chances of it. It is the consent of the plaintiff which destroys his right to recover, and how can there be consent without full knowledge? In the present case there is evidence that the plaintiff was a foreigner, with limited understanding of the English language; that he was not familiar with machinery, and that he had never worked about cogwheels or gears until a few days before the accident. There is further- testimony that he was given no instructions as to the duties and risks of his work. There was also evidence that at no time previous to the accident, had the rolls been in motion when the plaintiff was pulling billets on to the roll table. Under this evidence, and that bearing upon other circumstances in the case, we do not see that the trial judge could reasonably have held as a matter of law that the danger of working near these uncovered cogwheels, which were not ordinarily in motion, when the billets were pulled down to the roll table, was so open and obvious that the plaintiff must have known and appreciated the danger of injury from them, and have impliedly accepted the risk. Whether or not he was warned of the danger, and whether he understood the warning, and appreciated the risk, and in spite of it all, went on with the work, all these matters were disputed questions of fact to be passed upon by the jury, if the defense of assumption of risk was a proper one to interpose in the case.

As the defendant had the benefit of the submission of the case, practically unhampered by any limitations placed by the statute upon its defense of assumption of risk, there is little need here for any discussion as to whether the statute precludes the setting up of that defense. The question whether an employer may invoke the defense of assumption of risk by the employee, in the face of a statute requiring safeguards for dangerous machinery, has given rise to much discussion and wide difference of opinion. One of the latest cases involving a discussion of the question is Welsh v. Paving Co., 167 Fed. Repr. 465. In the opinion by Judge Gilbert in that case the conflicting decisions on the subject are reviewed. He points out that the decisions of the various state courts, as well as those of the federal courts upon the question, are contradictory and nearly evenly divided. Since Baddeley v. Earl Granville, L. R. 19 Q. B. Div. 423, there can be no doubt that the English rule is settled, so that in Great Britain the statute now precludes the master from setting up the defense of assumption of risk.

The cases holding to the contrary are based upon the view that the doctrine of assumption of risk is not based upon contract, express or implied, but that it arises from the application of the maxim volenti non fit injuria. It is apparently conceded in all those cases, as well as by the argument of counsel for appellant in the present case that, if the contract view is the correct one, the workman has no power to waive or dispense with the protection of the statute. “To hold that he could do so,” says Judge Gilbert in the opinion above referred to in the Welsh case, “would be to nullify the statute and thwart its purpose.”

In the recent case of Bowen v. Penna. R. R. Co., 219 Pa. 405, our Brother Elkin points out that the weight of authority bases the doctrine of assumption of risk “upon the contractual relation existing between the parties.” And somewhat later, in Sullivan v. Cordage Co., 222 Pa. 40, Justice Elkin said (p. 42): “In Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, it was held that a boy under the statutory age employed to perform the dangerous kind of work prohibited by the statute, is not chargeable with contributory negligence or with having assumed the risks of employment in such occupation. In Stehle, by his next friend, v. Jaeger Automatic Machine Co., 220 Pa. 617, further consideration was given to the application of the rule under the Act of May 2, 1905, P. L. 352. In this case it became necessary to pass upon the requirements of sec. 4 of that act, which provides that no minor under sixteen years of age shall be permitted to clean or oil machinery while in motion. Following the rule of the Lenahan case, it was again héld that an employer who violated the law by engaging a boy under the statutory age to perform the dangerous kind of work prohibited by the statute, did so at his own risk, and in an action of trespass for personal injuries sustained by the boy while so employed, the master cannot set up as a defense either the assumption of risk or the contributory negligence of the boy servant.”

The last expression of this court upon the subject and with reference to the same section of the act of May 2, 1905, which is now under consideration, is that of Justice Brown, in Jones v. Caramel Co., 225 Pa. 644, where he said (p. 652): “The act of 1905 will become a dead letter if an employer who has failed to properly guard his machinery can relieve himself from that duty by the plea that the danger was so obvious that his injured employee ought to have been aware of it and was not entitled to any warning against it. Only the contributory negligence of an injured employee, lawfully employed, will relieve the employer from the consequences of his disregard of his statutory duty.”

Counsel for appellant suggest that the language of our Pennsylvania statute is almost identical with the corresponding provisions of the earlier statute of New York; and that the construction of the statute by the New York courts should be followed by the courts of Pennsylvania. While the wording of our statute is almost the same as that of the New York act, yet the same measure of protection to employees is also in force in a number of other states and countries. The provision was by no means peculiar to New York when the act of 1905 was adopted by our legislature. Under modern conditions, the subject was one of concern to congress and various state legislatures.

In construing the various statutes upon the subject in different jurisdictions, some conflict of opinion has arisen. Under these circumstances, it is unquestionably the duty of every court before whom the question comes, to examine the reasons given in support of the contradictory decisions, and reach its own conclusions as to the sound and proper interpretation of the law. The construction placed upon a substantially similar statute by the courts of a sister state, is of course entitled to respectful consideration, but it can only be allowed to prevail with us in so far as it is in harmony with the spirit and policy of the law of our own state. In Pennsylvania we are committed to the view that the requirements of a statute adopted in the exercise of the police powers of the state, for the protection of its citizens, cannot be impliedly waived by the parties to the contract of employment.

In the trial of the present case, the jury were permitted, without objection by counsel for the plaintiff, to consider the defense of assumption of risk. This gave the defendant an undue advantage. But the plaintiff took no exception, and alleges no error in the trial. The defendant has of course no reason to complain of the action of the court below in this respect.

The judgment is affirmed.