author: Mr. Justice Elkin,

text:
    Long, Appellant, v. Folwell Brothers & Company, Incorporated.

      Negligence — Master and servant — Minor employee — Duty to instruct— Contributory negligence.

    A boy sixteen years old is not entitled to recover damages for personal injuries from his employer because of the failure of the latter to instruct him as to the dangerous character of a machine, where the evidence shows that the boy was told to gather up and carry away a pile of waste lying on the floor at the side of a carding machine with which the boy was perfectly familiar, and that in doing so he was injured by coming in contact with the cogwheels of the machine.
    Argued Jan. 19, 1910.
    Appeal, No. 349, Jan. T., 1909, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., June T., 1904, No. 4,161, on verdict for defendant in case of James H. Long, by his father and next friend, Samuel R. Long, and the said Samuel R. Long, in his own right, v. Folwell Brothers & Company, Incorporated.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before'Wiltbank, J.
    At the trial the court instructed the jury to return a verdict for the defendant.
    "Verdict and judgment for defendant.

      On motion for a new trial Wiltbank, J., filed the following opinion:
    In McLean v. Sehoenhut Co., 225 Pa. 100, it was said that, in actions of tort, the burden was on the plaintiffs not only to charge the particular negligence complained of, but to prove it by sufficient testimony. The parties are bound by the pleadings and the courts cannot disregard them. It will not do to allege one ground on which to sustain a recovery of damages for failure to perform a duty, and at the trial prove or attempt to prove failure to perform a different kind of duty, the breach of which is not alleged. We need not cite the long line of authorities on the principle of which this judgment is the last exposition.
    The pleadings in the case at bar disclose substantially but two issues: First, Did the defendant put the plaintiff at the time he was in his minority to work in an improper place at and upon machinery which was defective in structure and lacking repair? Second: Did the defendant fail duly to instruct the plaintiff as a minor in respect of the operation of the machinery at which he was employed? The statement of claims confines the investigation to these points, and technically raises only the first. It recites that on or about September 18, 1903, James H. Long, the minor son of Samuel It. Long, both of whom appeared as plaintiffs, was in the employ of the defendant in the conduct of its business in this city, and that it being the defendants’ duty to furnish and provide for his use reasonably safe and proper machinery, tools and appliances in a proper place, and to keep and maintain the same in good condition; and further it being also its duty to fully instruct and properly guard and protect him from any and all great hazards, risks, etc., arising upon the dangerous, improperly placed and insufficient machinery, tools and appliances, the defendant wholly failed in these particulars and did not furnish and provide reasonably safe, proper and sufficient machinery, tools and appliances and did not properly and fully instruct him as to the use of the same and the dangers, hazards, risks and perils thereof, but on the contrary furnished and provided him with dangerous, etc., machinery, etc., in an improper place and subjected and exposed him to divers great hazards, etc., so that on the date mentioned the plaintiff was put to work at a certain machine known as a carding machine, which was defective, insufficient and dangerous, and not properly placed, and while the plaintiff was at work about said carding machine, his left hand was caught in said machine and the hand and fingers thereof were mashed and crushed so that some of his fingers were thereafter amputated, and he was cut, bruised, etc., and permanently injured, etc. The gravamen of the offense charged, it will be observed, was the providing of machinery defective, dangerous and improperly placed. Although the duty to duly instruct the plaintiff as a minor is declared upon, yet no violation of this duty is set up as leading to the accident. In fact, the proofs showed nothing as to a failure to instruct the employee. Moreover, he was represented to have been at the time of the accident over the age of sixteen years. This point we advert to later.
    The plaintiff- was employed to feed, with wool, appliances called cards. The wool before use was placed about ten feet back of the machine in a pile on the floor against the wall of the building. It was the plaintiff’s duty at proper intervals of time to turn' from his position at the box or feeder into which he thrust the wool backward to the pile behind him and pick up an armful to replenish the box. He testified in chief, explicitly, that he was not to do anything else but just keep the boxes filled. On cross-examination he said that his employer in engaging him explained that all he had to do was to keep the boxes full. He worked in safety for two days and a half at this employment before the occurrence of the accident. He had done like work before in another establishment. There were three of these machines or cards which he was to feed in this manner. These stood in a row at right angles with the wall I have mentioned, and some few feet apart one from another. His position may be described to have been at the head or mouth of the carding machine, and according to his orders, as he said, this position was varied only by his turning to the pile of wool on the floor against the wall back of him. By his story one Bradley, his boss, just before the accident told him to gather a pile of waste and take it to the waste house. This direction, he said, referred to a collection of waste on the floor at the side of the machine and about the running gear which was there. Knowing that the machinery was in motion, he started to gather up the fly referred to and found his hand caught in the gear. The alleged order of Bradley was given before six o’clock, — what the plaintiff called quitting time, — or shortly before. It appeared that by the action of the carding machine the wool was carried through from the feeding point to the other end, and as it was torn or carded it created and threw off a fine substance which was not of sufficient weight to pass with the main fiber which was carried into the air about the machine and thence lodged on the floor. The plaintiff knew the necessary incident of the process and described it.
    The object of carding wool is, first of all, to open up the fleece and lay the fibers as near side by side as possible. During this operation the dirt, the burrs, the seeds and vegetable matter which accumulate on sheep’s fleece in grazing are in a large measure cast down. The heavier portion falls, naturally, to the ground. Some of the lighter portion rises and comes in contact with moveable belts on the machine, and with driving pulleys. This is carried off in the atmosphere, the air current causing it to spread and float. It is called “ fly.”
    This, we think, disposes of the question of instructions to the plaintiff. He needed none at the time of the accident in view of his admitted experience and observation,— and in the light of the expressed terms of his employment.
    We have, then, to consider the contention that there was negligence in the defendant in respect of the situation and character of that part of its plant about which the plaintiff worked. On this head we concur in the views of the trial judge, expressed in his charge to the jury when directing a verdict for the defendant. The machinery in its equipment was not wanting in the guards that were necessary under the circumstances, and was shown to have been of the character and condition usual in such industrial establishments. Were there evidence requiring a submission to the jury of the issue of negligence, it would have been necessary to consider the question of contributory negligence in the plaintiff, and whether it must be ruled that he had suffered injury because he had knowingly taken a risk.
    • The defendant offered a certificate made under the Act of assembly of April 29, 1897, P. L. 30, which had been signed and sworn to by the boy’s mother on June 6, 1901, reciting that he was then fourteen years, two months and nineteen days of age, and had been born on March 17, 1887. The accident, as already stated, occurred on September 18, 1903, and the plaintiff was then sixteen years and six months old. It was contended for him that the certificate thus produced was untrue in fact and ineffective to bind him as he was one year younger. If this contention was not sustained (and the trial judge' was of the opinion that it failed), the plaintiff was not exempt from the charge of conduct on his own part, which according to his showing, precluded a recovery.
    We have been moved on two trials to pass upon the circumstances of the production and the legal effect of this certificate. Under the statute of April 29, 1897, P. L. 30 (and we are not at liberty to refer to the statute of May 2, 1905, P. L. 352, because it is not retroactive), the certificate produced, assuming it to have been valid, was provided for and designed to operate as prima facie evidence of the age of a minor seeking employment, either himself or by his parents, one or more of them, or his guardian. In this instance the plaintiff presented the certificate to former employers of the minor. It may be said that personally the father did not produce, and that personally the son did not produce it, but not the less actually and with the assent of all concerned the mother did produce it duly verified by affidavit, and thus in contemplation of the statute the certificate comprised a publication of the date of the birth of the boy. It later came into possession of the defendant at the time of the employment out of which there arose the accident under consideration. The defendant was obliged under the law to make reasonable inquiry of the age of a person admittedly under twenty-one who was contemplated for employment; and there appears to have been a compliance on its part with this provision of the law in accepting the certificate on the days of its hiring of the workman. It was not denied that the certificate was produced to the employer on that occasion, and it matters not whether this was.by the son himself, or by his father, or by someone else, it being out of the question, however, that it could have been produced by the mother because it was shown that she had previously departed this life. The effect and validity of the certificate had been inaugurated and created at the time it was sworn to, which was on the earlier occasion, and the defendant was authorized to regard it as already published, and as so published as to justify it in availing itself of its averments. It was admittedly issued by one parent, admittedly signed; it stated the age and the date of the birth, and it was verified before a notary.
    It was to indicate from a source accredited by statute that the plaintiff was within the class of minors over sixteen years of age. The question then was whether, having prima facie evidence of the birth of the boy from which his age was readily calculable, the defendant should have inquired further.
    When we come to consider this we find that there was no power in the boy to qualify or in any way discredit the certificate as it stood. Under the statute it was to be made by the parent or guardian, and the employer had therefore the right at law to regard the parent or the guardian as the authority in the premises. The minor was not constituted a party to state his age, and he was bound by the certificate given by his parents. For many reasons this must be a correct view of the case. In the first place, a minor can never tell when he was born save upon evidence of which the best rests with his parents. But independently of this view it is obviously the meaning of the statute that the minor should have no voice in the premises. It was not the duty of the defendant employer to turn to him for information under the circumstances when it had that which may be regarded as close to, if not quite, the best evidence of the date of his birth. Indeed, it would be difficult to show any better evidence than the affidavit of the mother. When this was made there had been, and when it was produced at the trial there was, no dissent on the part of the father. The statute does not recognize priority in authority of the father in the domestic establishment, but says merely, the parent, and it may be assumed, therefore, under the common law that if the father did not sign the certificate and the mother did, the mother did it, in the legal acceptance of the term, under the instructions of her husband. These circumstances, therefore, compel the conclusion that the defendant acquired (and it was on the motion of the boy seeking employment or those representing him) information which was reasonably adequate that the boy was over sixteen years of age.
    Concluding thus, we may glance at the question whether or not there was an order to the plaintiff to clean machinery while in motion. The statement did not charge it. The evidence did not disclose it. It was at no time his duty to clean machinery, and he did not do it. Nor was he at any time ordered to do it, according to his story, whether in motion or at rest. If Bradley, the boss, directed him to gather up fly from the floor, the order did not involve his touching the plant when in action, much less his cleaning it, and taking the risk of performing service alike beyond the scope of his employment and unusual in the particular that it was contrary to the practice of the establishment. By the plaintiff’s statement of that practice the machinery was stopped at regular intervals — always twice each day — in order that it might be brushed off. And employees other than he did the work. When one machine was thus stopped he was engaged “filling the others up.” The fact as presented by him in his testimony was, that it was the command of Bradley that he move fly from the passage on the floor between the machines described,— not that he work upon the plant itself. We have, therefore, a case under the proofs of the plaintiff’s being put to work at a feeder and according to his own contention being required to do nothing else. The master, Bradley, testified that he had ordered him not to touch the machinery when running; and when called in rebuttal the plaintiff did not deny this.
    The conclusions are necessary, that the defendant did not put the plaintiff to work at machinery which was defective in structure and lacking repair, nor did it fail in its duty to him as a minor in respect of the operation of such machinery as he was employed upon.
    The rule for a new trial is discharged.

      Error assigned was in directing a verdict for the defendant.

      John M. Doyle, with him Eugene Raymond, for appellants.
    Proper instructions were not given: Dougherty v. Dobson, 214 Pa. 252; Creachen v. Bromley Bros. Carpet Co., 209 Pa. 6; Manola v. Stamping Co., 223 Pa. 116; Burns v. Coal Co., 223 Pa. 473; Dynes v. Bromley, 208 Pa. 633; Doyle v. Waste Co., 204 Pa. 618; Winters v. Boll, 204 Pa. 41; Beil v. Cement Co., 218 Pa. 472; Smith v. Tube Co., 183 Pa. 485; Sweigert v. Klingensmith, 210 Pa. 565; Sturtz v. Delaware, etc., R. R. Co., 225 Pa. 249; Thomas v. R. R. Co., 194 Pa. 511; Coates v. Chapman, 195 Pa. 109; Valentine v. Colburn Co., 10 Pa. Superior Ct. 453; Cameron v. Traction Co., 216 Pa. 191.
    May 24, 1910:

      F. B. Bracken, of Loughlin & Bracken, for appellee.
    This court has held in numerous cases that an employee must be presumed to know and appreciate the obvious, and that no instructions to avoid open and apparent dangers are necessary: Vant v. Roelofs, 217 Pa. 535; Fick v. Jackson, 3 Pa. Superior Ct. 378; Hemscher v. Dobson, 220 Pa. 222; O’Keefe v. Thorn, 24 W. N. C. 379.
    This rule has been applied to cases where the minors injured were about the age or younger than the plaintiff, the court acting upon the presumption that a minor over fourteen years of age is capable of observing and protecting himself from an obvious danger: Eisenberg v. Fraim, 215 Pa. 570; O’Keefe v. Thorn, 24 W. N. C. 379; Nagle v. Allegheny Vall. R. R. Co., 88 Pa. 35; Hunt v. Graham, 15 Pa. Superior Ct. 42; McLean v. Schoenhut, 225 Pa. 100.
   Opinion by

Mr. Justice Elkin,

At the trial binding instructions were given for defendant company and on the motion for a new trial the court in banc sustained the verdict thus directed. The case was carefully and exhaustively considered by the learned court below and upon review here the same conclusion has been reached. The negligence charged was failure to provide a safe place to work and reasonably safe machinery with which to work; and failure to properly instruct the employee who was a minor. The place could only be regarded as unsafe in the sense that every manufacturing establishment using machinery more or less dangerous might be considered unsafe, but this the law does not recognize as sufficient to sustain a recovery on the ground of negligence. The machinery, tools and appliances were of the kind and character ordinarily used in such manufacturing establishments and therefore the negligence charged in this respect was not sustained by the evidence. The learned counsel for appellant in his printed argument states that this position is not pressed and is unimportant because the negligence relied on is not that the machinery was defective or unsafe but that it was made dangerous by the manner of its use. This clearly eliminates two elements of negligence charged, namely, unsafe place and unsafe machinery. We agree with the learned court below that the evidence is insufficient to sustain a recovery on these grounds. The only remaining charge of negligence to be considered is whether the appellee company failed to properly instruct the minor employee in the use of the machine and as to the dangers, risks and hazards of his employment. The machine was not complicated and the use of it not dangerous. The duties of the boy were simple and did not require expert instructions. He was instructed to gather up the wool, put it in the machine and keep the boxes full. He testified that all he had to do was to get the wool from a pile on the floor back of him, carry it to the feed boxes of the machines and put it in. He was entirely familiar with this kind of employment because of his experience in another factory, and there is nothing in the case to indicate that it was the duty of the employer to give him more instructions than were given. His duties were of the simplest character, and in the performance of them he was not required to handle dangerous machinery, or to do any act or thing involving hazard and risk. The learned court was clearly right in holding that the proofs did not show failure to properly instruct. But it is argued, and this is the whole case of appellant, that the boy having been ordered by his foreman to gather up some waste at the side of the machine and carry it away, should have been instructed of the dangers and risks of so doing because of the exposed cogwheels in which his hand was caught. It is doubtful whether any such negligence was charged in the statement of claim, but waiving this point, we see nothing in the case to require the employer to give special instructions in the performance of a duty so plain and simple. The waste, called fly, lay on the floor at the side of the carding machine in full view of the boy who was told to gather it up .and carry it away. No instructions were required to enable the boy to do this work. A boy sixteen years old need not be told how to gather up a pile of waste and carry it away. If his common sense and experience could not be relied on instructions would have been without avail. But, say appellants, the boy should have been notified of the danger of coming in contact with the cogwheels of the machine. This was an open and obvious danger. The cogwheels were a part of the machine at which the boy was working and he either knew or should have known that they were there. The experience and intelligence of the boy as shown by the testimony make it difficult to believe that he could have been ignorant of this fact. However, whether he knew this fact or not, there was nothing in the circumstances of this case that made it the duty of the employer to give such notice, and it follows that damages cannot be recovered on the ground of failure to perform a duty not required. This eliminates from consideration questions as to assumption of risk, contributory negligence and other matters, some of them interesting and in a proper case important, but in our view not necessary to a determination of this controversy. The boy was lawfully employed to do a certain kind of work, not within the prohibition of the statute as to age, or as to the performance of dangerous duties such as oiling machinery in motion, or any other like duty involving risk and therefore there was no violation of a statutory requirement in his employment. Under these circumstances the rule of the cases relied on by the learned counsel for appellants on this branch of the case has no application; especially is this true when no such negligence was charged in the statement of claim.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin, Mestkezat, J.,

license: Public Domain

text:
    Philadelphia, Appellant, v. Philadelphia Rapid Transit Company.

      Street railways — Rates of fare — Contract with municipality — Free transfers — Change of rate — Strip tickets.

    1. Where a contract between a city and a street railway company provided “that the present rates of fare may be changed from time to time, but only with the consent of both parties hereto,” and it appears that at the date of the contract the company charged five cents for a continuous ride, sold tickets in strips at the rate of six for twenty-five cents, and gave free transfers at certain intersections issued both on cash fares and tickets, the company does not violate the terms of the contract by discontinuing the sale of the strip tickets without the consent of the city.
    2. In ordinary signification a rate of fare is the unit or basic price upon which the total charge is based. In the carrying of passengers by street railway companies the rate is fixed at a flat price per ride, without reference to the distance traveled, and this basic price for a single ride in the ordinary and legal signification of the term is the rate of fare. A total charge of twenty-five cents for six rides is not a rate of fare either in the etymological or legal sense.
    Mestrezat, J., dissents.
    Argued Jan. 21, 1910.
    Appeal, No. 365, Jan. T., 1909, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1909, No. 1,581, dismissing bill in equity in case of City of Philadelphia v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for the specific performance of a contract and for an injunction. Before Sulzberger, P. J., Wilt-bank and Barratt, JJ.
    The facts appear by the opinion of the Supreme Court and by the report of Philadelphia v. Philadelphia Rapid Transit Company, 224 Pa. 544. The court dismissed the bill, Sulzberger, P. J., writing the opinion of the court and Wiltbank, J., filing a dissenting opinion.

      May 24, 1910:

      Error assigned was the decree of the court.

      J. Howard Gendell, city solicitor, for appellant.
    The words “rates of fare” must be construed in accordance with the intent of the parties, and this intent, we submit, is clear: People’s Natural Gas Co. v. Braddock Wire Co., 155 Pa. 22; Gass’s App., 73 Pa. 39; Gillespie v. Iseman, 210 Pa. 1; District of Columbia v. Gallaher, 124 U. S. 505 (8 Sup. Ct. Repr. 585); Virginia Pass. & Power Co. v. Com., 103 Va. 644 (49 S. E. Repr. 995); Martinsburg Bank v. Telephone & Supply Co., 150 Pa. 36; Chase v. R. R. Co., 26 N. Y. 523; United States v. Ry. Co., 148 Fed. Repr. 646.
    The case of Adams v. Union R. R. Co., 21 R. I. 134, comes the nearer to our own in various respects than any other that has been found.

      Ellis Ames Ballard and John G. Johnson, with them James Gay Gordon, for appellee.
    What was said by this court with respect to package tickets in disposing of the former controversy was the very basis and foundation of the decision.
    The reasoning of the court upon which it based.its conclusion that no change in fare had been intended by the company in placing package tickets on sale, has not only not been disproved but has been confirmed by the evidence offered by the complainant.
    The evidence offered establishes conclusively that the contract immediately prior to and at the time of its adoption, was understood by its adversaries, as well as those who favored it, as establishing a five cent fare and none other.
    The eighth section dealt only with the legal fare which had been previously established by ordinance of councils, and not with mere details of management which might in individual cases have enabled a passenger to travel over certain routes for less than the established fare.
   Opinion by

Mr. Justice Elkin,

The questions raised by this appeal were considered and determined by this court in another proceeding between the same parties about one year ago: Philadelphia v. Phila. Rapid Transit Co., 224. Pa. 544. When the opinion in that case was handed down no dissent was noted and the views therein expressed represent the conclusions of the court. That case rules the one at bar. The court was then asked to construe and did construe the same contract, the same section of the contract, the same proviso, and the same particular words in the proviso, in a similar proceeding between the same parties, involving the rights of the same contracting parties. The question then raised and the issue now presented depend upon the same words in the contract. The findings of fact in the present proceeding do not differentiate the case at bar in principle from the one then decided. The question involved in both cases depends upon the construction of the words "rates of fare” used in the contract, and this question was exhaustively considered by our Brother Stewart, who delivered the opinion of the court in the former case. The court is now of opinion that the decision in that case is conclusive of the questions raised by this appeal. It is argued that the question then presented for determination was the right of the rapid transit company to abolish transfers, and the discussion of other matters relating to the proper construction of the words "rates of fare” should be treated as dicta not binding upon the courts or the parties. It may be that the exact question then raised might have been put upon narrower grounds so as to leave for future determination the broader questions necessarily involved, but the court in reaching its conclusion deemed it necessary to consider broadly the effect of the particular words of the proviso upon which the contentions were then and are now based in order to properly determine the issue then pending. Both cases depend upon the proper construction of the words "rates of fare” used in the contract. The contracting parties failed to define in their written agreement the meaning of these words, and the courts are not at liberty to arbitrarily make a new contract for them or by construction to adopt a meaning not imported by the language used. In ordinary signification a rate of fare is the unit or basic price upon which the total charge is based. In the transportation of passengers by railroads the rate is fixed at so much per mile and the total charge depends upon the number of miles traveled, while in the transportation of freight the rate is usually fixed at so much per 100 pounds and the total charge is calculated upon this basis. In such cases no one would seriously contend that the rate of fare or the freight rate was the total charge determined upon the basis of the miles traveled or the number of pounds carried. In the carrying of passengers by street railway companies the rate is fixed at a flat price per ride, without reference to the distance traveled, and this basic price for a single ride in the ordinary and legal signification of the term is the rate of fare.- A total charge of twenty-five cents for six rides is not a rate of fare either in the etymological or legal sense. No useful purpose will be served by amplifying the discussion at this time because the question was fully considered and disposed of by this court in the case referred to and the conclusion then reached will not be disturbed.

Decree affirmed at cost of appellant.

Mestkezat, J.,

dissenting:

This case, I submit, is not ruled by the recent decision in Philadelphia v. Phila. Rapid Transit Co., 224 Pa. 544. The question in the present case was not raised by the pleadings and hence could not have been adjudicated in the former case. This is distinctly shown by the opinion of this court in which it is said (p. 551): “The bill complains that this action of the company (discontinuing transfers on strip tickets) is a change in its established rates of fare in force when the contract was entered into, inasmuch as it requires now a cash payment of five cents to secure the same transfer ride which before could be had on a ticket costing but four and one-sixth cents; and since the change was made without the consent of the city, an injunction was asked for to restrain the company from discriminating in the way indicated. The question thus presented is a very narrow one.” The right of the transit company to discontinue transfers on strip or six-for-a-quarter tickets without the consent of the city was, therefore, as declared by this court, the only question presented and adjudicated in the former case, and what was said in the opinion as to the right of the company to discontinue the strip ticket itself, the issue in the present case, was obviously purely dicta, and does not now control this court in disposing of that issue. In other words, in the former case, the question was whether the deprivation of the right to a transfer on a strip ticket was a change in the “rates of fare,” while the question here is whether the withdrawal of the strip ticket and thereby compelling the passenger to pay five cents instead of four and one-sixth cents for his ticket is a change in the “rates of fare,” within the intendment of the contract between the parties. The case is, therefore, not complicated by a prior ruling of this court on the issue now presented for determination and should be disposed of on its merits in view of the fact that the decision of the majority of the court affects 1,500,000 people of the city of Philadelphia and compels them to pay to a public service corporation more than $2,000,000, annually in violation, it is alleged, of the express stipulations of the corporation’s contract which was executed by the city for the very purpose of protecting its citizens against extortionate demands of the company. With deference to my colleagues, I submit that the construction placed by them on the contract between the city and the transit company is not supported by reason or precedent, and, as shown by this record and not by the record in the former case, is in direct contradiction to the company’s own interpretation of the contract in its address to the public on discontinuing the strip ticket, published in the press of the city within a week after the former decision of this court, wherein the company designates the withdrawal of the tickets as “a change in the schedule of charges,” "the change in the transportation charges,” "an increase of the rate per passenger,” and "some changes in fares.”

A statement of the material facts will aid in an intelligent consideration and correct conclusion of the controversy.

The city of Philadelphia and the rapid transit company entered into a contract on July 1, 1907, by which the latter and its underlying companies were relieved of many burdensome duties and obligations and acquired many valuable rights. The advantages derived by the parties under this contract were reciprocal. The eighth paragraph'of the agreement contains, inter alia, the following: “Provided, however, that the present rates of fare may be changed from time to time, but only with the consent of both parties hereto.” At the date of the contract, and immediately prior thereto, the defendant company had three prices for its service: (1) Five cents paid to the conductor in cash for a single ride, or a single ride and an additional ride on certain of the company’s intersecting lines; (2) eight cents for which the passenger received an exchange ticket which entitled him to a single ride and an additional ride on a larger number of intersecting lines than on a transfer ticket; (3) twenty-five cents for which the passenger received six tickets printed on a slip of pasteboard, each ticket bearing on its face in bold type the words: " One Fare,” and, as held by this court, entitled the passenger to the same service as a five cent cash fare.

On May 3, 1909, the transit company, by a resolution of its board of directors and without the consent of the city, withdrew the strip tickets from sale on and after the following day. The city thereupon filed this bill, praying that the strip tickets be decreed "fares” within the meaning of the contract of July 1, 1907, and" that the company be required to issue such tickets in like manner as was done at the date of the contract.

The answer filed by the transit company avers that the company’s rate of fare is and has been five cents, denies that the discontinuance of the strip tickets is “a substantial increase of fare or change of fare,” and further says: “We deny that at the time the said contract was made there were three rates of fare; we admit, however, that in addition to charging a cash fare of five cents for each separate ride this company did, at the time the said contract was entered into, sell an exchange ticket for eight cents which was good for an additional ride upon an intersecting car in accordance with the terms and conditions of said ticket, and that the company also sold, through its conductors, six tickets for twenty-five cents, each of which was received by the company at that time for one ride.”

The single and only question raised in the court below, and for adjudication on this appeal, is whether the charge of twenty-five cents for six tickets, the equivalent of a single ticket for four and one-sixth cents, is a “rate of fare” within the meaning of the contract of July 1, 1907. Two of the three judges who heard the cause below answered the question in the negative, the other judge sustained the plaintiff’s contention that the charge was within the contract and, therefore, could not be changed without the city’s consent. Judge Wiltbank’s dissenting opinion amply vindicates his conclusion.

There is no question raised on the record as to the validity of the contract nor is it claimed that the parties are not bound by the contract according to its legal import, as the learned president of the court below seems to think. His extended argument or “collateral observations” to show that “the company had no lawful right to abdicate its function of management, and the city had no lawful right to assume it,” and that there was no duty resting on the company to sell tickets are questions not raised by the pleadings and are not in the case; nor are they relied on as a defense in this proceeding. Neither party is denying the validity of the agreement or seeking to evade its operation; nor do the parties desire to avoid the single and simple issue raised by the pleadings.

What is a “rate of fare” in the legal as well as the usual and ordinary meaning of the expression when applied to the transportation of passengers by a carrier? The word “rate” has a primary meaning of ratio or proportion to some standard, but is also defined to be the price or amount stated or fixed on anything: 23 Am. & Ency. of Law (2d ed.), 888; Barrett v. The Wacousta, 2 Fed. Cas. 928; Raun v. Reynolds, 11 Cal. 14; Adams v. Union Railroad Co., 21 R. I. 134, 136. “Regular rates” for telephone service are the rates charged in the neighborhood for the service: Martinsburg Bank v. Telephone & Supply Co., 150 Pa. 36. “Fare” is the price of passage, or the sum paid or to be paid for carrying a passenger: 12 Am. & Eng. Ency. of Law (2d ed.), 881. And in McNeil Pipe & Foundry Co. v. Howland, 111 N. C. 615, 20 L. R. A. 743, “fare” is defined to be “a rate of charge for the carriage of passengers.” “Rate,” as used in the interstate commerce law, means the net amount the carrier receives from the shipper and retains: United States v. Chicago & Alton Ry. Co., 148 Fed. Repr. 646. The words “rate” and “fare” are synonymous when used in defining the price for transporting passengers by a carrier. In all the cases, they are used interchangeably as signifying the price or charge for transportation of a passenger. In Chase v. New York Central Railroad Co., 26 N. Y. 523, the statute under consideration provided that a railroad company should carry way passengers “at a rate not exceeding two cents per mile,” and a subsequent statute imposed a penalty on the carrier for asking and receiving “a greater rate of fare.” The court in holding that there was no necessity for the use of the words “of fare” in the earlier statute said (p. 525): “Here, the word ‘rate' means price, amount; and the adding of the words ‘of fare’ after the word ‘rate’ would have produced tautology, and, perhaps, ambiguity, and certainly a very inaccurate sentence, as will be perceived upon considering the meaning of the word ‘fare.’ It is, the price of passage, or the sum paid or to be paid for carrying the passenger. . . . The word itself included the idea of being carried as a passenger.” The words “rate of fare,” therefore, when used in dealing with the question of transportation by a carrier mean, under the settled definition of the words “rate” and “fare,” the price or charge for the transportation of passengers.

Accepting such as the proper construction of the words, what were the “rates of fare” charged and collected by the defendant company for the transportation of passengers on July 1, 1907, the date of the contract between the company and the city? The answer to this question is not in doubt on the facts disclosed by the evidence, found by the trial court, or averred in the defendant’s answer. The court below finds that at the date of the contract “the defendant had three prices for its service” in transporting passengers: (a) Five cents; (b) eight cents, and (c) twenty-five cents for six tickets each of which entitled the holder to a single ride or two rides on a transfer. This finding is not excepted to and, therefore, must be taken as true. Was not each of these “prices for its service” a “rate of fare,” and were the prices not the “present rates of fare” in contemplation of the parties when they executed the contract? The finding of the court on this question of fact having been accepted as verity by both parties, these were the only “rates of fare” charged and collected by the carrier for transporting passengers on July 1, 1907. The “rates of fare” mentioned in the contract, therefore, under the finding of the trial court, included six tickets for twenty-five cents, the equivalent of a rate or price of four and one-sixth cents for a ticket, on which the holder was entitled to one ride and a transfer privilege over certain designated routes.

A like conclusion is reached in considering the facts set up in the answer filed by the defendant company. It denies that at the time the contract was made there • were three rates of fare, but admits “that in addition to charging a cash fare of five cents for each separate ride this company did, at the time the said contract was entered into, sell an exchange ticket for eight cents which was good for an additional ride upon an intersecting car in accordance with the terms and conditions of said ticket, and that the company also sold, through its conductors, six tickets for twenty-five cents, each of which was received by the company at that time for one ride.” Here, we have the admission by the defendant that at the date of the contract it had “three prices for its service” for transporting passengers over its lines, and that one of these prices or rates was six tickets for twenty-five cents, each ticket being received for one ride. The company does not allege, it will be observed, that it had at that time any other rate, charge or price for transporting passengers. It will also be noticed that, by its answer, it had three charges or- rates for its service, and that each was different in amount from the others. It contends that it had but one “rate of fare” to wit, a cash fare of five cents, and that the other prices charged and collected for its service “were details of management which the company had adopted or changed from time to time during many years without demand, complaint or regulation on the part of the municipality.” If the company’s contention be correct that it had but a single five cent “rate of fare” at the time, why did the parties stipulate in the contract that “the present rates of fare,” instead of “the present rate of fare,” should not be changed without the city’s consent? The question cannot be answered by imputing to the eminent counsel of the parties who supervised the drawing and execution of the contract inadvertence or ignorance of the facts or of the law. Not only the counsel and their clients but every individual in the city of Philadelphia using the defendant’s cars knew that at that date there were three “rates of fare” or prices charged, and not one “rate of fare,” for the transportation of passengers over the defendant’s lines. It is, therefore, apparent that the parties and their counsel then treated the “three prices for its service,” charged by the company, as the “present rates of fare” which could be “changed from time to time, but only with the consent of both parties.” This conclusion is supported, and not refuted, by the company’s contention that the fares charged for its service, other than the five cent fare, “were details of management which the company had adopted or changed from time to time during many years without demand, complaint or regulation on the part of the municipality.” It was these frequent changes of fare that the city desired to prevent. It believed that the changes, made at the pleasure of the company, had been detrimental to the interests of the people using car service, and the stipulation in question was inserted in the contract to protect the public by preventing a change of any or all of “the present rates of fare” without the city’s consent.

As noted above, the trial court found that at the date of the contract the defendant had “three prices for its service,” five cents, eight cents, and the strip ticket, the equivalent of a five cent cash fare. The defendant company alleges in its answer that at that time it had only one rate of fare, viz., a five cent cash fare, which could not be changed without the city’s consent, and that the other two “prices for its service,” viz., the eight cent and strip ticket fares, were not rates of fare and could be changed at its pleasure. I fully agree that the latter two rates are charges of the same character and if either is without the contract the other is likewise. The eight cent rate, evidenced by an exchange ticket, entitled the passenger to a continuous ride on two intersecting cars, or was the equivalent of a fare of four cents on each car or for one ride. The exchange ticket represented two rides for eight cents, being two cents less than two cash. fares which, without the ticket, the passenger was required to pay. The six strip tickets for which the holder paid twenty-five cents was, as held by this court in the former case, each the equivalent of a five cent fare and secured to the holder the same privileges. Conceding, therefore, as must be conceded, the two prices for transportation (eight cent and strip ticket fares) to be of the same nature or quality and occupying the same position under the contract, the strip ticket must be held to be within the contract or this court must reverse itself if the opinion in the former case correctly announced the judgment of its members. In discussing and determining what fares for transportation the company had established at the date of the contract, the opinion in Philadelphia v. Phila. Rap. Transit Co., 224 Pa. 544, says (p. 552): “It is quite evident, however, that the reference in the proviso was to the charges and fares the company was receiving at the date of the contract; it could be to nothing else. Accepting this as the meaning, it is necessary, first, to inquire what these several charges were. We have referred to one five cents for a single continuous ride in the same car. Another was, eight cents for a single change from one car to another on certain intersecting lines. It is not denied that these charges fall within the meaning of the proviso.” If, therefore, the eight cent ticket which entitled the holder to two rides is conceded by this court to be a “rate of fare,” does it not logically and irresistibly follow that the strip ticket which entitled the holder to two rides is also a “rate of fare” within the meaning of the contract?

If, however, there was any doubt as to the six-for-a-quarter tickets being a “rate of fare” within the contract of July 1, 1907, that doubt is entirely dispelled by the company’s own construction of the contract contained in its statement to the public on May 3, 1909, when it discontinued the use of those tickets. This statement, a part of the record and now before this court, was issued seven days after the former opinion in this case was filed, and of course was not before or considered by this or the trial court in that case. It is the company’s interpretation of the contract and conclusively shows that the strip ticket was one of the “rates of fare” which could be changed only with the consent of both parties. The statement was issued by the company to inform the public “as to the necessity and reasons for its action (in discontinuing the strip tickets), and what its effect upon the patrons of the company will be.” In other words, the company desired to assign its reasons for changing the “rates of fare” by the discontinuance of the strip ticket. The statement speaks of “the average fare” received being about 3.90 of a cent, and resulting partly from forty-eight per cent of the passengers “riding on package (strip) tickets, paying four and one-sixth cents.” The statement then proceeds to show the necessity for the company increasing its revenues. It refers to the “average per passenger” above alluded to, to the dividends due the stockholders which “represent any increase in fares” for the next two years, to the object of the company in having all opposition to the “change in the transportation charges” dissipated. The statement then announces that “the last thing which you (the public) expected was any change in the schedule of charges which would result in an increase in the rate per passenger. ... As already stated, the present average charge per passenger is 3.90. A careful estimate of the average charge under the new schedule is 4.35, a change of less than one-half of a cent per passenger. If the company continued strip tickets and abolished all their transfers, the average charge would be greater, viz., about 4.92.”

This is a construction of the contract of July 1, 1907, by the defendant in which the plaintiff concurs, and as we said in People’s Natural Gas Co. v. Braddock Wire Co., 155 Pa. 22: “When we are asked to say what the parties mean or intended by their contract, it is entirely safe to point to their own construction of it.” By the defendant’s statement all doubt is resolved against its contention that four and one-sixth cents is not a “rate of fare,” or that the strip ticket does not represent a “rate of fare.” The defendant’s answer denies that the discontinuance of the strip ticket is “a substantial increase of fare or a change of fare,” but the correctness of this denial may well be doubted in view of the fact that the discontinuance of those tickets increased the company’s revenues more than $2,000,000, annually. Does the increase result from “the details of management” of the corporation, or from a change of the rates of fare made, as conceded in the statement, for the purpose of increasing the revenues of the company?

I think it clear that at the date of the contract a strip ticket, conferring on the holder the same privileges as a five cent cash fare, represented a “rate of fare” within the meaning of the contract, and, therefore, the company could not withdraw or discontinue it without the consent of the city. I would reverse the decree of the court below and grant the prayer of the bill.


text:
    Blankenburg, Appellant, v. Philadelphia Rapid Transit Company.

      Street railways — Fares—Municipalities—Contract—Equity—Act of June 19,1871, P. L. 1860.

    1. Under the Act of June 19, 1871, P. L. 1360, a private citizen has no standing to maintain a bill in equity to compel the specific performance of a contract entered into between the municipality of which he is a citizen and a street railway company relating to rates of fare charged by the railway company on its lines within the city.
    2. The act of 1871 applies to direct invasion of rights, not consequential injuries resulting from contractual relations, and the inquiry is limited in suits by private parties to the question of charter powers.
    Argued Jan. 21, 1910.
    Appeal, No. 334, Jan. T., 1909, by plaintiff, from decree of C. P. No. 2, Phila. Co,, June T., 1909, No. 609, dismissing bill in equity in case of Rudolph Blankenburg v. Philadelphia Rapid Transit Company.
    May 24, 1910:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for the specific performance of a contract and for an injunction.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      Wm. A. Glasgow, Jr., with him Edwin O. Lewis and Vivian Frank Gable, for appellant.
    Complainant was entitled to proceed under the act of assembly of Pennsylvania, of 1871: Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    Complainant was entitled to file this bill as a beneficiary under the contract of July 1, 1907, said contract having been made by the city of Philadelphia, as the corporate representative of complainant and for his benefit: Sewiekley Boro. Sch. Dist. v. Gas Co., 154 Pa. 539; School Dist. v. Enterprise Nat. Gas Co., 18 Pa. Superior Ct. 73; Adams v. R. R. Co., 21 R. I. 134 (42 Atl. Repr. 515).

      Ellis Ames Ballard and John G. Johnson, with them James Gay Gordon, for, appellee.
    The appellant has no standing under the act of 1871: Becker v. Ry. Co., 188 Pa. 484; Windsor Glass Co. v. Carnegie Co., 204 Pa. 459; Myersdale, etc., St. Ry. Co. v. Ry. Co., 219 Pa. 558; Penna. R. R. Co. v. Greensburg, Jeanette & Pittsburg St. Ry. Co., 176 Pa. 559; Hannum v. Media, etc., Electric St. Ry. Co., 221 Pa. 454.
    The appellant has no standing to maintain this bill as a “beneficiary” of the contract: Millcreek Twp. v. Erie Rapid Transit St. Ry. Co., 209 Pa. 300.
   Opinion by

Mr. Justice Elkin,

The question involved here under the circumstances of this case is purely academic because the merits of the controversy have been considered and determined in another proceeding involving the same questions between the city of Philadelphia and the defendant company. In that case it has just been decided that the question raised is ruled by Philadelphia v. Rapid Transit Co., 224 Pa. 544. It may be assumed that what appellant and all other interested parties desire is that the rights of the contracting parties under the contract between the city and the transit company should be determined and this has been done. It is strongly urged, however, that the appellant as an individual and a citizen of the city of Philadelphia had the right to file his bill and seek the relief prayed for. The learned court below determined this question against him and after full consideration here this court is of opinion that the conclusion reached is a proper one under the rule of our cases. The right of appellant to thus proceed as an individual complainant is asserted upon the theory that his private rights are being injured or invaded by a corporation and that in such cases a court of equity has jurisdiction under the act of 1871, to hear and determine the matters in dispute with' power to grant relief. This is an erroneous view of the powers conferred by that statute and is without warrant under the language of the act and the long line of decisions construing it. The act gives to individuals the right to complain and to courts the power to inquire and ascertain when it is alleged that private rights are being injured or invaded by a corporation claiming to have the right to do the act or acts about which complaint is made, but the inquiry in such cases is limited to the question whether the '■ corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights results.” It has been held in all the cases in which the question has been raised that the act does not authorize a collateral attack upon a corporate franchise or charter power and that the inquiry thereunder is limited to the nature and extent of the franchise prima facie conferred by charter. No question of charter power is raised by this proceeding and it is difficult to see upon what theory the act can be invoked to extend relief for incidental injuries alleged to have been suffered by an individual by reason of a contract entered into between a quasi public corporation on one side and a municipality on the other in which the power to execute such a contract is not involved. The act applies to direct invasion of rights, not consequential injuries resulting from contractual relations and the inquiry is limited in suits by private parties to the question of charter powers: Penna. Railroad Co. v. Railway Co., 176 Pa. 559. This is the rule of all our cases and it is conclusive against the contention of appellant in so far as his right to proceed under the act of 1871 is involved. It is strongly urged that appellant is a beneficiary under the contract between the city and the transit company and as such has a right to file his bill and demand the relief sought. He has no interest different from that of the general public so as to entitle him to proceed as an individual and the interests of the general public in the matter in dispute have been fully presented in a proceeding instituted by the proper officials of the city, one of the contracting parties, against the transit company, involving the same questions under the same contract. This was the conclusion reached by the learned court below and in view of all our cases we think it must be sustained.

Decree affirmed at the cost of appellant.


author: Mr. Justice Brown,

text:
    McCoy, Appellant, v. Niblick.

      Married women — Contract—Sale of real estate — Husband’s consent.

    1. Whére a married woman executes an agreement to sell her real estate and puts the vendee in possession, but subsequently refuses to execute a deed alleging that her husband had not joined in the agreement, she will not be entitled to recover in ejectment the land in question, if it appears that she had never asked her husband to join in the agreement, and that he had never refused to join therein.
    2. A married woman may make a valid contract for the sale of her land, although she may not be able to execute it by reason of the refusal of her husband to join in the deed. If for this reason she is not able to execute it, she must return to the vendee whatever payments or outlays he may have made in reliance on the contract.
    Argued Feb. 8, 1910.
    Appeal, No. 315, Jan. T., 1909, by plaintiff, from judgment of C. P. Bucks Co., Sept. T., 1906, No. 55, on verdict for defendant in case of Mary J. McCoy v. Samuel C. Niblick and William M. McCormick.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Falls township. Before Stout, P. J.
    The facts are stated in the opinion of the Supreme Court and also in the previous report of the case in 221 Pa. 123.
    The plaintiff presented among others these points:
    2. If the jury find that the defendant entered into the possession of plaintiff’s lands, described in the writ, without any legal conveyance thereof to him and without the consent and authority of the owner thereof, his act is tortious. He is a mere trespasser and the verdict must be a general verdict for the plaintiff without condition. Answer: Refused. [7]
    No compensation can be allowed the defendant for moneys expended by him in the management or alleged improvements made by defendant upon the plaintiff’s farm after he received notice that plaintiff, a married woman, would refuse to convey to him title of the farm. Answer: Affirmed, providing her refusal was predicated upon the refusal of her husband to join in the conveyance. [8]
    May 24, 1910:
    Defendant presented this point:
    4. If the jury find for the plaintiff under the evidence, they must also find what compensation, if any, the defendant is entitled to for expenditures made by him for annuity, taxes and improvements, and the amount to which defendant may be entitled constitutes an equitable lien and a right to hold possession of the land until the lien is satisfied. The jury will then find a conditional verdict. Answer: This point is affirmed, with this qualification: That she is entitled to such expenditures made by defendant before he had notice that the plaintiff would not perform her contract, because the husband would not join in the conveyance. The defendant is not entitled to a verdict for expenditures by him after he had such notice. [11]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (7, 8, 11) above instructions, quoting them.

      Wm. Stuckert and Wrn. R. Stuckert, with them Francis M. Gumbes, for appellant.

      Harman Y erkes, of Y erkes, Ross & Ross, for appellee.
   Opinion by

Mr. Justice Brown,

On the first trial of this case a verdict was directed for the plaintiff on the ground that her contract for the sale of her farm, under which defendant took possession, was void because she was a married woman when she signed it and her husband had not joined in it. The judgment on the verdict was reversed, as her contract was not void under the Act of June 8, 1893, P. L. 344, and, though not specifically enforcible by reason of the failure of the husband to join in it, it was held that a conditional verdict ought to have been directed, securing to McCormick, the vendee, reimbursement for what he had expended on the faith of the contract before notification that the vendor would not convey to him: McCoy v. Niblick, 221 Pa. 123. The only question raised on that appeal was the correctness of the ruling of the court below that the. .contract was void. We reversed and held that the plaintiff could not regain possession of the property until she had reimbursed the vendee; but we so decided upon the theory — seemingly concurred in by both sides — that she was not able to perform because her husband had refused to join in the deed. This most clearly appears in the opinion, written by the writer hereof, for we said: “Under the act of 1893 a married woman may 'sell’ her real estate and make any contract necessary, appropriate, convenient or advantageous’ to the exercise of her right to sell; but she may not perform her contract to sell without the joinder of her husband in the conveyance. She, therefore, knows when she enters into a contract to sell that she takes the chances, as well as her vendee, that her husband may not join in the deed, and that neither can compel specific performance if he refuses to join. But she knows that her contract or agreement to sell is a valid one, even if neither she nor her vendee may be able to have it specifically enforced, and, therefore, whatever the vendee may pay on it, or expend in pursuance of it, must be returned to him by. her, when she finds that she cannot specifically perform. . . . The refusal of the husband to join in the wife’s deed cannot operate to relieve her from liability under her contract, any more than her refusal to join in the husband’s would relieve him from liability under his.”

On the last trial it affirmatively appeared, from the testimony of the plaintiff herself and from the deposition of her husband, that he had not refused to join in the deed., and the only conclusion to be drawn by the jury was that she had refused to convey simply because she rued the bargain. This was no more her privilege than if she had been a single woman. She admitted that she had never asked her husband to join in the deed, and he testified that he had never refused to join in the agreement for the sale of the farm.

The plaintiff entered into a valid contract with McCormick; she handed over her title papers that a proper deed might be prepared for him, and she vacated the premises and permitted him to take possession of them, but, notwithstanding all this, her right was to retake them, provided she could not make him a deed and would be just to him in the matter of his expenditures. But. she had no right to retake possession merely because she would not make a deed. When a married woman cannot perform her contract for the sale of her real estate, the law will not make her, but when she simply' will not, it will not help her to escape her covenant. When she cannot carry out an honest contract to sell, she is not morally blamable and the law will exact nothing more from her than compensation to her vendee for any loss he may have sustained in reliance upon the contract; but when she capriciously will not perform, she becomes not only persona non grata in foro conscientise, but a plaintiff without a cause of action in a suit at law in repudiation of her contract. As to this the correct instructions of the trial judge to the jury were that the only excuse that would avail the plaintiff in her refusal to make title was her husband’s refusal to join in the conveyance, and that if he had not refused to join, and she resorted to a plea of his refusal as a scheme to avoid the conveyance, she could not recover. And the burden was upon her to show her husband’s refusal. This is a reasonable rule. An honest woman will try to perform her contract to sell her real estate by asking her husband to join in the deed. This is a very simple matter, and, if the husband refuse, it is an end of specific performance. He may refuse for any reason or for none at all. It is sufficient that he refuse, to release the wife from her agreement to convey, but to release her when he does not refuse to join in the conveyance would be in contravention of the plain spirit of the act of 1893, and would turn it into a piece of legislation in aid of every dishonest feme covert disposed to repudiate her contract for the sale of her real estate from whim, caprice or because she imagines or discovers that she ought to have received more money for her property.

At the time of the second trial the husband of the plaintiff was dead, and she was in a position to make a deed to McCormick. As she failed to show that she .could not have made it during the lifetime of her husband, and before she brought this suit, she was rightfully denied a recovery by the verdict of the jury, and must now be content with the purchase money to be paid her by her vendee.

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


text:
    Lehigh Valley Coal Company, Appellant, v. Lentz.

      Equity — Injunction—Waters—Estoppel—Mines and mining — Findings of fact.

    1. Equity will not enjoin the discharge of water from one coal basin through a tunnel into another coal basin, where it appears that the complainant gave its consent to the defendant to construct the tunnel; that the complainant’s inspector frequently went upon the ground while the work was being done; that the defendant was permitted to make heavy expenditures on the work without objection, and that the complainants had suggested a change in the direction of a channel which suggestion was adopted by the defendant.
    2. Injunctions do not always issue as a matter of right, but in many cases it is the duty of courts to take into consideration the conduct and situation of the parties in determining whether this equitable relief should be granted.

      3. Findings of fact in an equity ease by the trial judge, if based upon sufficient evidence, will not be reversed in the absence of manifest error.
    Argued Feb. 16, 1910.
    Appeal, No. 27, Jan. T., 1910, by plaintiffs, the Lehigh Valley Coal Company, from decree of C. P. Schuylkill Co., Sept. T., 1909, No. 7, dismissing bill in equity in case of the Lehigh Valley Coal Company and the Mill Creek Coal Company v. Lafayette Lentz, Lewis A. Riley and William O. Lentz, trading as Lentz & Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Shay, J.
    The opinion of the Supreme Court states the facts.

      Error assigned, among others, was decree dismissing the bill.

      Guy E. Farquhar and Daniel W. Kaercher, with them Samuel H. Kaercher, for appellants.
    Under the uncontradicted testimony that the proposed ditch was commenced and finished after the defendants had been notified that if they attempted to do so they would be enjoined, it is apparent that there is no ground for the finding of the court that the plaintiffs are estopped by acquiescence or consent: Lehman v. Murtoff, 7 Pa. Superior Ct. 485; Hepburn v. McDowell, 17 S. & R. 383.
    Silence becomes a fraud and works an estoppel only when a party withholds information which the other party does not have and does not possess the means of obtaining and which he should have to protect his rights. Where both parties know the facts or have equal means of knowledge of the facts, the silence of either in regard to them is not a fraud upon the other party: Rhawn v. Edge Hill Furnace Co., 201 Pa. 637.

      Geo. M. Roads, for appellees.
    As appurtenant to their grant in 1884, appellees had and have the right to drain all water from their mining operations in the south basin through the Morris tunnel and the ditch leading therefrom until all of the coal in the south basin is exhausted, but it is at least doubtful whether appellees have the right to cast the water from the north basin to the south basin and out upon the surface: Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126. In order to acquire permission so to do, they applied to appellants, their lessors and the owner of the fee, excepting the coal estate which it had leased to the two lessee mining companies, obtained its consent, upon the faith of which they expended large sums of money in drainage improvements. This right has now become an irrevocable license and cannot be withdrawn by appellant: Hopkins v. Stoneroad, 21 Pa. Superior Ct. 168; Baldwin v. Taylor, 166 Pa. 507; Russell v. Howe, 30 Pa. Superior Ct. 591; Rerick v. Kern, 14 S. & R. 267; Huff v. McCauley, 53 Pa. 206.
    May 24, 1910:
   Opinion by

Mr. Justice Elkin,

The examination of this voluminous record and the thirty-eight assignments of error has required time and industry but the result of our investigation can be briefly stated. The bill was filed to restrain defendants, who are mine operators, from draining surface and mine water from their mines in one coal basin through a tunnel to another basin and from discharging such water at such place and in such manner as to do injury to the workings of other operators against their protest, and as alleged without authority so to do. By them answer defendants admitted that the water from one basin was drained through a tunnel constructed for the purpose to another basin and was discharged through a ditch which connected with an old culvert running under the tracks of the Reading Railroad Company, into Mahanoy creek. The right to thus dispose of the drainage water was asserted and the learned court below sitting as a chancellor after taking a volume of testimony relating to the matters in dispute and giving the respective contentions of the contending parties Ml consideration reached the conclusion that the plaintiffs were not entitled to the relief sought. While the bill was filed by two coal companies, only one of these parties, the appellant here, is complaining of the decree entered in the court below. The court found as a fact and upon sufficient evidence that the Lehigh Valley Coal Company gave its unconditional consent to appellees to construct a tunnel for the express purpose of draining the water from the north to the south basin and that it does not now object to the delivery of this water at the mouth of the Morris tunnel, but does object to its flowing through the open ditch from the top split of the Monmouth vein, provided it interferes with the mining rights of the Mill Creek Coal Company. It is significant in this connection that the Mill Creek Coal Company, although an original party to this proceeding, is not here complaining of anything the learned court below did. Upon the strength of this consent, a large investment was made and heavy expenses were incurred in developing the mining project. The inspector of appellant company frequently went upon the ground while the tunnel was being constructed, saw the work being done by appellees and was familiar with the general purposes and plans for the operation of the mines and the drainage of the water. The court below found as a fact that both of the complaining companies acquiesced in the construction of the drainage tunnel and the evidence is ample to warrant the finding. Indeed, no other conclusion could have been reached without doing violence to the facts and circumstances developed at the hearing. We do not see how it could be seriously contended upon any proper view of the record here presented that appellant company did not assent to the construction of the tunnel by appellees for the purpose of draining water from the north to the south basin, and this necessarily included the use of the old Morris tunnel as an outlet. There seems to have arisen some differences of opinion as to how the water should be drained after leaving the tunnel. The appellees had dug an easterly channel for this purpose, but this was not satisfactory to the complainants who suggested another course which was adopted. Certainly under these circumstances it would be most unjust for a court of equity to interpose a restraining order which must necessarily endanger if not destroy the value of the property and investment made upon the strength of the understanding with the parties here complaining as to the right of drainage. If at any time actual damage be done appellant by the negligent discharge of water upon complainants’ lands or workings, or if injuries incidentally result from the additional flow of water through the ditch about which complaint is made, there is an adequate remedy at law to give proper redress. This appeal cannot be sustained without reversing the findings of fact made by the learned court below and this is never done except for manifest error and we find no such error in this record. Injunctions do not always issue as a matter of right, but in many cases it is the duty of courts to take into consideration the conduct and situation of the parties in determining whether this equitable relief should be granted: Heilman v. Railway Co., 175 Pa. 188; Hinnershitz v. Traction Co., 206 Pa. 91. The case at bar comes within the rule of this class of cases.

Assignments of error overruled and decree aflirmed at cost of appellant.


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    Lehigh & New England Railroad Company v. Bangor & Portland Railway Company.

      Railroads — Agreements as to crossing — License—Basement.
    1. A grant by one railroad company to another of the right to construct a crossing over the grantor’s tracks, without containing any words indicating a grant in perpetuity or an interest in land, is a mere license, and is revocable at any time before the crossing is actually constructed.

      2. A license in respect to real estate is an authority to do a particular act or series of acts on the land of another without possessing an estate or interest therein, while an easement always implies an interest in the land in or over which it is to be enjoyed. In the grant of an easement two distinct elements are involved, a dominant tenement to which the right is appurtenant, and a servient tenement upon which the servitude is imposed. A license is in the nature of a personal privilege and may be revoked before any rights have been asserted under it, or money expended on the faith of the privilege granted.
    3. If an easement be granted in terms, or by language from which such an interest under settled rules of construction is implied, the covenants will be accordingly enforced. Where the language used is of doubtful import it is for the court to construe the instrument and determine whether the grant is of a permanent interest running with the land, or only a personal privilege affecting the rights of the parties.
    4. While licenses are usually given by parol, they may be conferred by instruments in writing. The nature and character of the grant do not depend upon the maimer of making it, nor is the rule of revocability affected thereby.
    Argued March 10, 1910.
    Appeal, No. 51, Jan. T., 1910, by defendant, from decree of C. P. Northampton Co., June T., 1909, No. 1, awarding injunction in case of Lehigh & New England Railroad Company v. The Bangor & Portland Railway Company.
    Before Fell, C. J., Brown, Elkin, Stewakt and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Scott, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree awarding injunction.

      W. S. Kirkpatrick, of Kirkpatrick & Maxwell, for appellant.
    The agreement is a grant of an easement and not a mere license revocable by the Northampton Railroad Company or its successor: Wilkinson v. Suplee, 166 Pa. 315; Lindeman v. Lindsey, 69 Pa. 93; Dyer v. Depui, 5 Whart. 584; Edelman v. Yeakel, 27 Pa. 26.
    The agreement for crossing in question is binding upon the plaintiff as successor to the Northampton Railroad Company under the merger of September 22, 1903.
    May 24, 1910:
    The plaintiff/ by reason of the agreement granting > the right of crossing, has no such standing or interest in equity as entitles it to the intervention of the court under the Act of June 19, 1871, P. L. 1360.

      Edward J. Fox, with him James W. Fox, for appellee.
    The agreement was a mere license revocable by the Northampton Railroad Company or its successor: Baldwin v. Taylor, 166 Pa. 507; Great Falls Water Works Co. v. Great Northern Ry. Co., 54 Pac. Repr. 963; McMannan v. Williams, 79 Ala. 288; Baldwin v. Taylor, 166 Pa. 507; Dark v. Johnston, 55 Pa. 164; Huff v. McCauley, 53 Pa. 206.
    The agreement was not binding upon the complainant as the successor of the Northampton Railroad Company under the merger of September 22, 1903.
   Opinion by

Mr. Justice Elkin,

The appellee company sought and obtained an injunction in the court below to restrain appellant from crossing its tracks at grade. Both companies are domestic corporations organized and created to operate lines of steam railroad under the act, of 1868. The Northampton Railroad Company, no longer existing and not a party to this proceeding, was also incorporated for the same purpose under the same act. In 1903, the last-named company entered into an agreement in writing with the appellant company granting the- right to cross its tracks at grade upon the conditions and regulations stipulated therein. This agreement was not recorded and therefore subsequent purchasers, owners or successors in title, were not affected with constructive notice of any right, privilege or interest claimed under it. Soon after the execution of this agreement all the rights, privileges, franchises and property of the Northampton company passed to appellee company by merger under the act of 1901. At the time of the merger the crossing had not been constructed and no attempt had been made to assert any rights or privileges under the agreement. When the merger proceedings were completed in 1903, the Northampton company passed out of legal existence and is no longer a corporate entity. In 1909, nearly six years subsequent to the grant relied on, and almost as long after the grantor company had ceased to exist, the directors of appellant company by resolution approved, ratified and adopted the line, survey and location of the branch and crossing contemplated in the original agreement and authorized the construction of the same. This was the first step taken to assert any right or privilege under the agreement and it was taken many years after one of the contracting parties had passed out of existence. It is contended that this burden followed the merger and must be borne by the company succeeding to the rights thus obtained. This depends largely upon the grant itself and the nature of the privilege or interest granted. Was it a mere license to cross or was it an easement running with the land? The learned court below after full consideration held it to be a license and not an easement, and this conclusion is concurred in here. A license in respect to real estate has been defined to be an authority to do a particular act or series of acts on the land of another without possessing an estate or interest therein, while an easement always implies an interest in the land in or over which it is to be enjoyed. In the grant of an easement two distinct elements are involved, a dominant tenement to which the right is appurtenant, and a servient tenement upon which the servitude is imposed. A license is in the nature of a personal privilege and may be revoked before any rights have been asserted under it, or money expended on the faith of the privilege granted. The dividing line between a license and an easement is frequently somewhat obscure and not easily distinguished. The distinction must of necessity depend upon the interpretation of the terms of the grant. If an easement be granted in terms, or by-language from which such an interest -under settled rules of construction is implied, the covenants will be accordingly- enforced. Where the language used is of doubtful import it is for the court to construe the instrument and determine whether the grant is of a permanent interest running with the land, or only a personal privilege affecting the rights of the parties. In the present case it is doubtful to say the least whether there is in any proper legal sense both a dominant and servient tenement to make the doctrine of easements applicable at all. The contracting parties, two railroad companies, were not dealing about lands, or estates or interests In land, but confined their negotiations and agreement to the privilege of crossing tracks. The words of the grant are, “The party of the first part hereby grants to the party of the second part the right to cross with single track the tracks of the party of the first part.” The thing granted was the privilege of crossing tracks and no words are used indicating an intention to grant an interest in land. The agreement is silent as to how long the privilege was to be enjoyed and we fail to find anything contained therein to indicate an intention- to grant an interest running with land. The grant is only to the party of the second part, not to its successors and assigns. No words are used to suggest a grant in perpetuity, such as “at all times,” or “hereafter forever,” or to “its successors and assigns forever” or any other like phrases, which have been held in some cases to create an easement. There is nothing in the language of the covenant, nor in the parties to the agreement, to indicate anything more than the grant of a privilege in the nature of a license by the party of the first part to the party of the second part to cross its tracks at grade. The second party failed to exercise the privilege during the corporate existence of the party granting it, and made no attempt to do so for nearly six years after the rights, privileges and franchises of the party of the first part had passed to the appellee company under the merger proceedings. It is doubtful whether the privilege thus granted was a debt, liability or duty imposed upon the consolidated company within the meaning of the act of 1901, but even if it was, the nature of the obligation was not changed by the merger and the character of the privilege remained the same after the merger as before it took place. It was at all times a revocable privilege until moneys had been expended, or work had been done on the faith of it, and nothing of this kind had been done up to the time of filing this bill. It being a license or privilege to cross tracks, and not an easement running with land, the right of revocation ran with the grant and could be exercised at any time before execution. The suggestion of the learned court below that the license not having been executed was revoked by the merger we are inclined to think is entirely sound, but whether it was so revoked or not, the right of revocation at least followed the merger and the filing of this bill to restrain the construction of the crossing is a sufficient notice and exercise of such revocable act. While other interesting questions have been considered and discussed by the court and counsel no useful purpose will be served by going over this ground, because if the grant relied on is a mere license, and the court below and here so hold, that is an end of the case. Our own cases furnish ample authority for holding the present grant to be a license: Huff v. McCauley, 53 Pa. 206; Baldwin v. Taylor, 166 Pa. 507; Willis v. Railway Co., 188 Pa. 56; Park Steel Co. v. Railway Co., 213 Pa. 322. While it is true licenses are usually given by parol, they may be conferred by instruments in writing. The nature and character of the grant do not depend upon the manner of making it, nor is the rule of revocability affected thereby: 1 Washburn on Real Property, 629; 25 Cyc. 645.

Decree affirmed at cost of appellant.


text:
    Duval’s Estate.

      Will — Construction—Devise—Life estate — Trust and trustees.

    Where a testator specifically devises real estate to his daughter for life in trust and gives her a share in his residuary estate, but directs that such share “shall be held in trust for her by her already designated trustee,” the gift of the residuary estate to the daughter will be construed as a gift for life only, especially is this true where the beneficiary and all parties in interest treated it as a trust estate during the life of the daughter, a period of sixty-eight years from the creation of the trust, and where the intention not to give an absolute estate appears from the four corners of the will.-
    Argued March 23, 1910.
    Appeal, No. 382, Jan. T.,1909, by Samuel Wagner, Executor of the Will of Sophia M. Ash, deceased, from decree of O. C. Phila. Co., April T., 1879, No. 248, dismissing exceptions to adjudication in Estate of James S. Duval, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that James Duval died in 1842, leaving a will dated March 22,1842. In the first nine of the ten items thereof he made specific devises of sundry parts of his real estate among his children and grandchildren, the ninth item being of a store on Market street and a house on Tenth street, Philadelphia, to his daughter Sophia M. Ash, “to be held in trust for her or her children by Samuel Wagner, but should the said Sophia die without children, then the said properties shall revert to my estate to be divided among my children or their survivors.” Four days later he executed a codicil to his will in which after making a couple of pecuniary bequests, a specific devise in favor of a grandson and a provision in relation to his son William’s share of his remaining estate, he declared it to be his will “in the event of the death of my wife Catharine that the portion of my remaining estate that may come to my daughter Sophia shall be held in trust for her by her already designated trustee.”
    The testator then proceeded, “for the prevention of-uncertainties as to the meaning and intention of the several provisions of [his] last will,” to explain each one of the nine specific devises of his will in detail. In relation to item nine he declared, “it is rny intention and I do so declare it, to give to the children of my daughter Sophia M. Ash the fee simple of the real estate therein devised to her, subject to the contingency, limitations and trusts therein mentioned, and if she should die without leaving any children then living, that the estate devised by the said clause, or by my will otherwise bequeathed to her, shall go to my surviving children, and to the issue of any of my children who may have died and to their heirs, share and share alike, .... giving however, to the husband of my said daughter Sophia, if he be living, the use and benefit of such real estate and the income of her personal estate during his natural life and no longer.” Then followed a provision in relation to item ten of the will, as follows: “Also it is my will, and I do hereby devise all the rest and residue of my estate, wheresoever situated, subject to the life estate therein of my wife Catharine Duval, to my son Lewis Duval, and to my sons-in-law, Samuel Wagner and George B. Rodney .... in trust to sell and dispose of all the said residue of my said real estate either at public or private sale .... and the net proceeds to be first applied in payment of my debts .... and the surplus of such purchase money to be distributed by the said trustees to and among my several children who may be living and to the issue of such as may have died, in shares according to the number of those living and those who have died leaving issue equally.”
    The real estate was afterwards sold, and the share of Sophia M. Ash in the proceeds is the fund for distribution in this case.

      May 24, 1910:
    In 1858, the trustees filed their account in the orphans’ court, and it was referred to John M. Collins, Esq., as auditor. The auditor awarded the share of Sophia M. Ash to Samuel Wagner in trust for her; and on confirmation of the report of the auditor by the orphans’ court, the share was paid to Samuel Wagner, in trust for her. Samuel Wagner died in 1879, and on June 6, 1896, the Real Estate Trust Company was appointed trustee in his place by the orphans’ court. Sophia M. Ash died May 2, 1909, having survived her husband, leaving a will whereof she appointed Samuel Wagner (son of the Samuel Wagner above named), sole executor. The Real Estate Trust Company duly filed its account as trustee in the orphans’ court. At the audit the fund was claimed by the executor of Sophia M. Ash, but the claim was disallowed by the auditing judge, and the fund awarded to the several children of the testatrix.
    The court in an opinion by Dallett, J., with a dissenting opinion by Penrose, J., sustained the adjudication by Anderson, J., awarding the fund for distribution to all the children of Sophia M. Ash in equal shares.

      Error assigned was the decree of the court.

      W. W. Montgomery, Jr., and W. W. Montgomery for appellant,
    cited: Biddle’s Est., 28 Pa. 59; Mickley’s App., 92 Pa. 514; Fahrney v. Holsinger, 65 Pa. 388; Flick v. Oil Co., 188 Pa. 317; Mitchell v. Ry. Co., 165 Pa. 645; Richards v. Bentz, 212 Pa. 93; Ault v. Karch, 220 Pa. 366.

      William S. Clawson for Emmeline Reed Bedell, appellee.

      Alfred M. Mohr, with him William S. Clawson, for sons of Sophia M. Ash, appellees.
   Opinion by

Mr. Justice Elkin,

The answer to the question raised by this appeal depends upon the construction of a will made March 18, 1842, and a codicil added four days later. It relates to the share of the residuary estate given by the testator to a daughter. The will and codicil were admitted to probate after the death of the testator which occurred about one month after their execution and administration followed in due course. The fund for distribution was derived from the proceeds of the sale of real estate under the direction contained in the residuary clause of the will. The testator died in 1842, his widow in 1857, and the daughter, Sophia M. Ash, the distribution of whose estate is in controversy here, in 1909. In 1859, the auditor appointed to audit and adjust the first and second accounts of the surviving testamentary trustees reported a distribution and awarded the share of Sophia M. Ash to the trustees to be held in trust for her as directed by the will and it was so held in trust up to the time of her death. It thus appears that the share of Sophia M. Ash given to her by the will of her father has been held in trust since the death of the testator in 1842, down to the death of the widow in 1857, and from that time to the present, in all a period of sixty-seven years, for the use and benefit of this daughter for whom it was created. Sophia M. Ash made a will giving her entire estate to two daughters, who now claim the corpus of the trust estate as legatees under the will of their mother. The other children of Sophia M. Ash, not beneficiaries under the will of their mother, claim that the fund thus held in trust was not an absolute estate in their mother, but that it passed under the will of James S. Duval, the original testator. The whole controversy therefore turns upon the question whether Sophia M. Ash took an absolute estate or only a life interest in the share set apart for her use under the residuary clause in the will of her father. The learned orphans’ court held that Sophia M. Ash only took a life interest in the share thus set apart for her use and that her children did not take through her but as devisees or legatees under the will of James S. Duval. While this was the conclusion of the court, a dissenting opinion was filed in support of the view that Sophia M. Ash took an absolute estate and had the right to dispose of the same by will. It must be conceded that the question is not free from difficulty and that different views may be entertained and supported under established rules of construction, depending of course upon the intention of the original testator as gathered from the four corners of his will. Under the circumstances the will and codicil must be treated as one instrument because four days after the execution of his will the testator by means of the codicil undertook to declare his intention and make clear his purpose with reference to every disposition of his property made in the original will. The codicil is longer than the will, and the declaration of intention about as involved as the will itself, so that no one can say with absolute certainty just what the testator meant. It is perfectly clear that as to the real estate specifically devised to his daughter, Sophia M. Ash, only a life interest was given. As to such real estate the testator in his codicil said, “It is my intention, and I so declare it, to give to the children of my daughter, Sophia M. Ash, the fee simple of the real estate therein devised to her, subject to the contingency, limitation and trusts therein mentioned.” If the fund for distribution had arisen from the sale of real estate which passed under clause nine of the will of course it would not be contended that Sophia M. Ash took an absolute estate when the testator had expressly declared that the fee simple title should vest in her children. It is argued for appellant that this provision does not relate to the residuary estate and that it is without significance in arriving at the intention of the testator with respect to the same. It is true it does not relate in terms to the share of the estate which passed under the residuary clause and it may be that it should have no controlling effect in the determination of the question here involved. It is apparent, however, that for some reason the testator did not give an absolute estate to this daughter but in every instance in which mention is made of her share it is coupled with the provision that it shall be held in trust for her. As to the residuary estate it is provided: “I also declare it to be my will in the event of the death of my wife Catherine that the portion of my remaining estate that may come to my daughter Sophia shall be held in trust for her by her already designated trustee.” Here then as to the residuary share it is expressly provided that it shall be held in trust for her by the same trustee designated to hold the trust estate specifically devised to this daughter under clause nine. In reading the whole will we cannot escape the conclusion that the testator did not intend to give this daughter an absolute estate but that his purpose was to give her the use and benefit of the share set apart for her during life and that at her death the corpus of the trust should pass to her children. While this intention is not so clear as to the residuary share, it does sufficiently appear by the express declaration of the testator to warrant the belief and justify the conclusion that he so intended it. He did provide that this residuary share should be held in trust and by the same trustee, and it seems but reasonable to hold that he intended the whole trust estate to be held in the same way, for the same purpose and with like incidents of use and ownership. This is what the court below held and we think properly so held. The testator created a trust to safeguard every gift to this daughter which suggests an intent not to give the fee, and while this is not conclusive it is a fact which taken in connection with other parts of the will has a strong bearing in arriving at a proper construction of that instrument. Again, all of the parties in interest up to the time of the death of Sophia M. Ash acted upon the theory that she only had a life interest in the trust estate. It has been held in trust for sixty-eight years and while this is in no sense conclusive it shows that the construction put upon the will by the auditor in 1859, when the share of Sophia M. Ash was awarded in trust for her use was accepted by her during the remaining years of her life as the proper interpretation of the will. If she took an absolute estate under the residuary clause she was entitled to receive the same at the death of her mother in 1857, but no such contention was then made nor was any such right asserted in the lifetime of the beneficiary. We therefore concur with the learned court below that Sophia M. Ash did not take an absolute estate under the residuary clause of her father’s will but had a life interest in the share thus set apart for her use and we put this upon the ground that the intention of the testator as gathered from the whole will indicates such a purpose.

Decree affirmed at cost of appellant.