text:
    Commonwealth v. Frucci, Appellant.

      Criminal law — Murder—Degree of guilt — Question for jury.

    When in a murder trial the question of guilt goes to the jury, the question of the degree goes with it, and the degree is exclusively for them under proper instructions, in which the court may express its own views as to the effect of the evidence, if in such expression there is no interference with the exclusive right and duty of the jury to pass upon the degree of guilt.
    Where in a murder trial the judge repeats to the jury the words of the seventy-fourth section of the Act of March 31, 1860, P. L. 382, defining the crime of murder of the first degree, it is reversible error for the court to say “you will have to do in this case with that kind of murder stated in the statute as wilful, déliberate and premeditated murder.” Such language assumes that the prisoner if guilty, is guilty of murder of the first degree, and takes from the jury the right to fix the degree.
    Argued May 21, 1906.
    Appeal, No. 174, Jan. T., 1906, by defendant, from judgment of O. & T. Warren Co., March T., 1906, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Antonio Frucci.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Indictment for murder. Before Lindsey, P. J.
    Verdict of guilty of murder of the first degree.

      June 27, 1906:

      Errors assigned were (1, 2) instructions quoted in the opinion of the Supreme Court. .

      George B. Munn, with him O. C. Allen and William Harrison Allen, for appellant.

      Charles W. Stone and Wm. S. Clark, district attorney, with them Ralph W. Stone, for appellee.
   Opinion by

Mr. Justice Brown,

After repeating to the jury the words of the 74th section of the Act of March 31, 1860, that “ All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree,” the learned trial judge said to them, “You will have to do in this case with that kind of murder stated in the statute as wilful, deliberate and premeditated murder.” What he evidently intended to say was, that in passing upon the contention of the commonwealth, that the offense of the appellant was murder of the first degree, they were to deal only with that kind of murder of the first degree described in the statute as “ wilful, deliberate and premeditated killing,” because it had not been perpetrated by means of poison, by lying in wait, nor in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary. In Commonwealth v. Drum, 58 Pa. 9, the prisoner had stabbed his victim to death, and in charging the jury, Judge Agnew said: “ In this case we have to deal only with that kind of murder in the first degree described as wilful, deliberate and premeditated.’ ” This language was used by the distinguished judge in that ease that the jury might understand the kind of murder of the first degree with which the prisoner was charged, and not as indicating to them that his offense was one of “ wilful, deliberate and premeditated killing.” -The trial judge quoted largely from the charge in the Drum case, and though he may have thought he was repeating the words of Judge Agnew, he was not. If they had been repeated, there would have been no error in their repetition. What was said to this jury was, that they would “have to do ” with what the statute stated was “ wilful, deliberate and premeditated murder.” In other portions of the charge the court defined the different degrees of murder and instructed the jury that it was their duty to fix the degree of the prisoner’s crime, but it cannot be assumed that they were not misled by the language set forth in the first assignment. It is not for a court, in any portion of its charge, to say unqualifiedly that the crime of the prisoner is murder of the first degree. It can do so only when the duty is imposed upon it of fixing the degree under a plea of guilty. When the question of guilt goes to the jury, the question of the degree goes with it, and the degree is exclusively for them under proper instructions, in which the court may express its own views as to the effect of the evidence, if in such expression there is no interference with the exclusive right and duty of the jury to pass upon the degree of the guilt. All through the charge it seems to be assumed that the prisoner had feloniously killed the deceased. The instructions were : “ If after a careful consideration of the evidence you have a reasonable doubt as to whether the defendant is guilty in the first degree, you are to give him the benefit of this doubt. If you have a reasonable doubt as to his guilt of murder in the second degree, you are to give him the benefit of the doubt. And so if you come to the other question in relation to manslaughter. But that, as I have said, must be a reasonable doubt which grows out of the evidence.” Later on the court said: “We think that the facts do not resemble a case of manslaughter, because the killing was not in a sudden heat of passion and done momentarily before the party had time to think or act.” Of all this the appellant does not complain. His complaint is, that when the jury were told, “You will have to do in this case with that kind of murder stated in the statute as wilful, deliberate and premeditated murder,” they must have understood the court as instructing them that the murder of the deceased was wilful, deliberate and premeditated, and that they were, therefore, bound under the statute to pronounce him guilty in the first degree, for the act declares that all such murder shall be deemed murder of the first degree. This complaint is just. Even if the court was not misunderstood, it may have been, and this dare not be in a capital case in instructions bearing against the prisoner.

After having retired to deliberate upon their verdict the jury returned and asked the court to again define to them murder of the first degree, murder of the second degree, and manslaughter. In complying with this request they were told, “ It is the wilful, deliberate and premeditated killing that you are to deal with in this case.”. This expression was, if anything, more unfortunate than the words used in the general charge, and must be regarded as a serious violation of the rights of the accused. Whether the killing was wilful, deliberate and premeditated was the very question for the jury’s consideration, and until they found that there had been such a killing, they could not declare the life of the appellant forfeited. With it involved in the issue before them, it cannot be assumed that anything said elsewhere in the charge saved him from the peril to which the words complained of, if standing alone, would unquestionably have subjected him. They were evidently used inadvertently by the court, but in this serious case we must consider only their probable or possible effect upon the mind of the ordinary juror. The first and second assignments are sustained. No reversible error is found in any of the others, and they are overruled.

The judgment is reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Commonwealth v. Ieradi, Appellant.

      Criminal law — Murder—Evidence—Witness—Charge of court.

    On the trial of an indictment for murder it is reversible error for the court to instruct the jury that, if they found one of the witnesses had sworn falsely, then “such witness is not to be believed in any respect, and you have to disregard his testimony.”
    The maxim falsus in uno, falsus in omnibus, has modernly been relaxed and restricted in its application. The rule is, that if a witness wilfully and corruptly swears falsely to any material fact in a case, the jury are at liberty to disregard the whole of his testimony. But the correct principle goes no farther than to say that the jury may disregard the testimony, not that they must disregard it.
    Argued May 21,1906.
    Appeals, Nos. 175 and 176, Jan. T., 1906, by defendants, from judgment of O. & T. Warren Co., March T., 1906, No. 1, on verdict of guilty of murder in the first degree in eases of Commonwealth v. Frank Ieradi and Commonwealth v. Petro Notaro. Before Broto, Mestbezat, Potteb, Elkin and Stewart, JJ. Reversed.
    June 27,1906:
    Indictment for murder. Before Lindsey, P. J.
    Verdict of guilty of murder of the first degree.

      Error assigned was instructions quoted in the opinion of the Supreme Court.

      George B. Munn, with him O. C. Allen and William Harrison Allen, for appellant.

      Charles W. Stone and Wm. S. Clark, district attorney, with them Ralph W. Stone, for appellee.
   Opinion by

Mr. Justice Brown,

Immediately after calling the attention of the jury to the deep interest of the appellants in the issue as affecting their credibility, the court said : “ and where there is a conflict of testimony it is your duty to reconcile the evidence if you can, with the presumption that each man is telling the truth. But if you cannot, and if there is such a conflict of the evidence, and the evidence leads you to believe that one of the witnesses has sworn falsely and you arrive at the conclusion that he has, then such witness is not to be believed in any respect, and you have to discard his testimony.” This was error which may have been very serious in its effect on the,jury. The appellants and their witnesses may have sworn falsely as to some facts which were not material, but, even if their testimony was false as to some material fact, the jury were not required to disbelieve them as to all other material facts to which they testified. The maxim falsus in uno, falsus in omnibus, has modernly been relaxed and restricted in its application. The rule is, that if a witness wilfully and corruptly swears falsely to any material fact in a case, the jury are at liberty to disregard the whole of his testimony : 30 Am. & Eng. Ency. of Law (2d ed.), 1072. But the correct principle goes no farther than to say that the jury may disregard the testimony, not that they must disregard it. This is the form of the rule as laid down in tbe great majority of jurisdictions: 2 Wigmore on Evidence, p. 1173. “ There has never' been any positive rule of law which excluded evidence from consideration entirely, on account of the wilful falsehood of a witness as to some portions of his testimony. Such disregard of his oath is enough to justify the belief that the witness is capable of any amount of falsification, and to make it no more than prudent to regard all that he says with strong suspicion, and to place no reliance on his mere statements ; but when testimony is once before the jury, the weight and credibility of every portion of it are for them, and not for the court, to determine. The duty of the court is to give them such full cautions as will lead them to the intelligent performance of their functions: ” Knowles v. The People, 15 Mich. 408. This is the correct rule.

When the jury were instructed that, if they found one of the witnesses had sworn falsely, “then such witness is not to be believed in any respect, and you have to discard his testimony,” they must have understood the court as saying that they must disregard his testimony entirely. For this reason the first assignment of error must be sustained. The remaining three are overruled.

Each judgment is reversed and a venire facias de novo awarded.


author: Mr. Justice Elkin,

text:
    Bucher v. Sunbury Borough, Appellant.

      Negligence — Boroughs—Pavement—Evidence—Question for jury.

    In an action against a borough to recover damages for personal injuries sustained by falling on a slippery pavement, the case is for the jury where the evidence tends to show that at the place of the accident there were offsets, and irregular and rough places which were permitted to become filled with snow and ice to such an extent as to make it unsafe for public use, and that this condition had existed for several weeks. In such a case it was for the jury also to determine whether the dangers of the situation were so obvious as to cause a prudent man to avoid them.

      Negligence — Borough—Pavement—Abutting owner.

    If a borough fails in the performance of its duties to keep or cause to be kept, its pavements in a reasonably safe condition for public use, it is liable in damages for such injuries as result from its negligence, and its liability is not affected by the question of the non-liability of an abutting property owner.
    Argued May 21, 1906.
    Appeal, No. 159, Jan. T., 1905, by defendant, from judgment of O. P. Northumberland Co., Feb. Term, 1901, No. 140, on verdict for plaintiff in case of George D. Bucher v. Sunbury Borough.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Auten, J.
    At the trial it appeared that the plaintiff was injured on January 3, 1899, at about two o’clock p. M\, by falling on a slippery sidewalk. The owner of the property abutting on the street was the county of Northumberland. The evidence tended to show that at the place of the accident there were ir- . regular and rough places which had become filled with ice and snow to such an extent as to make the . pavement unsafe, and that the borough had permitted this condition to continue for several weeks.
    Counsel for the defense offered in evidence the record of the case of George D. Bucher v. The County of Northumberland, in the court of common pleas of Northumberland county, No. 139, February Term, 1901, this for the purpose of establishing the fact that the plaintiff in this suit brought action against the abutting owner, the county of Northumberland, upon this same cause of action, as bearing upon the question of law that will arise in the case, affecting the primary and secondary liability of the abutting owner, the county of Northumberland, and the secondary liability of the defendant borough.
    Mr. Clement of counsel for plaintiff: Objected to for the reason that in any action of trespass for personal injury, the plaintiff having the right of action against either or both of two tort feasors, is not barred against one by reason of his failure to recover against the other, nor is one of two tort feasors chargeable with the duties, neglects, omissions or rights of the other.
    Objections sustained, evidence excluded, and bill sealed for the defendant. [12]

      Defendant presented these points :
    1. Under all the evidence in this case the verdict of the jury must be for the defendant. Answer: Refused without reading. [1]
    2. There is no evidence of actual notice to the municipal authorities in this case, and sufficient time had not elapsed between the close of the general storm, which ended Sunday morning, January 1, 1899, and the accident of Tuesday, January 8, 1899, to carry this case to the jury on the question of constructive notice, therefore the plaintiff cannot recover. Answer : Refused without reading. [2]
    3. There is no evidence of actual notice to the municipal authorities in this case, and the ordinance of the defendant borough, approved January 5, 1897, having imposed upon abutting owners the duty of removing ice and snow within twenty-four hours after the ice had accumulated, or snow had fallen, which period did not expire until Monday, January 2, 1899, and but one day having intervened thereafter to the day of the accident, sufficient time had not elapsed to carry this case to the jury on the question of constructive notice, and the plaintiff cannot recover. Answer: Refused without reading. [3]
    4. The undisputed evidence in this case being that the condition of the sidewalk in question, and all the sidewalks of the defendant municipalitj^ was one of general slipperiness due to the general storm that ended Sunday morning preceding the accident, there can be no recovery in this case. Answer: Refused without reading. [4]
    5. If the jury believe from the evidence that the condition of the pavement in question, and all the sidewalks of the defendant borough, was one of general slipperiness, due to the general storm, which closed the Sunday preceding the accident, there can be no recovery in this case. Answer: I will not affirm that point in the'exact language in which it is drawn, but I say to you that if you believe from the evidence that the condition of the pavement in question, and all the sidewalks of the defendant borough, was one of general slipperiness due to the general storm which closed the Sunday preceding the accident, and you further find that the accident was due to that cause alone, there can be'no recovery. But I further charge you that in the consideration of that point you will take into account the testimony relative to the condition of the walk itself and determine whether that contributed to the accident. By the condition of the walk, in this sense, I mean unevenness caused by the elevation of parts of the pavement and the depression of other parts, as testified to by the witnesses. [5]
    It was the duty of the plaintiff to have used his senses, and if the jury believe from the evidence, that the sidewalk was in a manifestly dangerous condition, the plaintiff is guilty of contributory negligence in attempting its passage and cannot recover. Answer : That is affirmed, provided you find that the condition was so manifestly dangerous that a person of ordinary prudence would not have undertaken to travel it. [6]
    7. If the jury believe that the plaintiff, by the exercise of ordinary care, should have observed that the walk was dangerous and tlia.t he had the, choice of another way which was safe, he is guilty of contributory negligence and cannot recover. Answer: I will not affirm that point as drawn, but I say to you that if the walk upon which Mr. Bucher fell was so manifestly dangerous that a person using ordinary prudence would not have undertaken to use it, and that he had another way around which was safe, he cannot recover. [7]
    It was the duty of the plaintiff to have used his senses in passing over the walk, and if the jury believe from the evidence that the walk was manifestly dangerous at the point of the accident he is guilty of contributor} negligence in not making a detour to avoid it, and cannot recover. Answer: This is not affirmed in the language in which it is drawn, but I say to you that if it was so manifestly dangerous that Mr. Bucher, in the exercise of ordinary prudence, should have avoided it and he could have avoided it by making a detour, as stated in the point, then he would be guilty of contributory negligence and could not recover. He is required to use the degree of care that an ordinarily prudent man would have used under the circumstances. [8]
    Verdict and judgment for plaintiff for $2,083.38. Defendant appealed.

      Errors assigned among others were (1-8) above instructions, quoting them, and (12) ruling on evidence, quoting the bill of exceptions.

      June 27, 1906:

      Walter Shipman and J. Fred Schaffer, for appellant.
    That it requires more than a slippery condition of the pavement or crossing at the time of the occurrence of an accident, to make a municipality liable for injury sustained by a plaintiff, and that it requires in addition to such slipperiness, the accumulation of snow and ice in the shape of such pronounced ridges and hills as to render the passage dangerous, is fully sustained in the following cases : Mauch Chunk v. Kline, 100 Pa. 119; McLaughlin v. Corry, 77 Pa. 109; Springer v. Philadelphia, 22 W. N. C. 132; Hanson v. Borough of Warren, 22 W. N. C. 133; Dehnhardt v. City of Philadelphia, 15 W. N. C. 214.
    The ordinances of the appellant borough imposed the primary duty of repairing this pavement and keeping it free from snow and ice, on the abutting owner, the county of Northumberland. The duty of the appellant was secondary.
    The secondary duty is based upon and upheld by the primary duty.
    The liability partakes of the nature and degree of the duty, i. e., a neglect of a primary duty gives rise to a primary liability, and a neglect of a secondary duty creates a secondary liability.
    The secondary duty and liability are supported by and based upon the primary duty and liability.
    A denial of the right to recover for a breach of a primary duty must necessarily be a denial of the right to recover for the breach of the secondary duty growing out of it.

      C. M. Clement and M. H. Taggart, for appellee,
    cited : Steck v. Allegheny, 213 Pa. 573; Fritsch v. Allegheny, 91 Pa. 226; Gillard v. Chester, 212 Pa. 338 ; Becker v. Philadelphia, 212 Pa. 379; Brown v. White, 206 Pa. 106 ; Pittsburg v. Fay, 8 Pa. Superior Ct. 269; Gates v. Penna. R. R. Co., 150 Pa. 50; Brookville Boro. v. Arthurs, 152 Pa. 334; Dutton v. Lansdowne Borough, 198 Pa. 563; Johnson v. Philadelphia, 208 Pa. 182.
   Opinion by

Mr. Justice Elkin,

If the injury in this case had resulted from the general slippery condition of the pavement occasioned by the storm on the Sunday prior to the accident, and nothing else, there would not be such negligence on the part of the defendant borough as to make it liable in damages. The plaintiff in his statement of claim did not alone allege the general slippery condition of the pavement, but averred in substance that it had been so negligently maintained as to make it unsafe and dangerous for traveling purposes; that at the place of accident there were offsets, irregular and rough places which were permitted to become filled with snow and ice to such an extent as to make it unsafe for public use. There was testimony tending to show that these conditions had existed for several weeks, one witness saying all winter, and of course they became more dangerous by reason of the storm which left the borough streets generally in a slippery condition. The learned trial judge carefully charged the jury as to the duty and liability of the appellant under the circumstances. There was no reversible error in the instructions to the jury bearing on this question. The testimony showed that the pavement was in general use on the day of the accident and that a number of people had passed over it that day and on days prior thereto. Under these and other circumstances in the case it was not the duty of the court to say as a matter of law that the plaintiff was guilty of contributory negligence. It was for the jury to say whether the dangers were so obvious as to cause a prudent man to avoid them. This also was a question for the jury, where the court left it.

It is earnestly contended that no liability for damages rests on the appellant borough because in the case o£ Bucher v. Northumberland County, 209 Pa. 618, it was held that said county, an abutting property owner, was not liable in damages for the injuries sustained by the accident. This position assumes that because the' appellee could not recover against the county in that case he cannot recover against the borough in the present case. This does not necessarily follow. In Brook-ville Borough v. Arthurs, 130 Pa. 501, it was held to be the duty of a municipal corporation, having exclusive care and control of its streets, to see that they are kept in a condition that is safe for the passage of persons and property; and if that plain duty is neglected and an injury results by reason of such negligence, the borough is primarily liable to the injured party. It was further held that if as between the borough and a third party the injury resulted from the negligence of the latter he is liable over to the municipal corporation. The right of the appellee to recover in this case is not dependent upon the question of the primary or secondary liability of the borough. In Gates v. Penna. R. R. Co., 150 Pa. 50, the present Chief Justice in discussing this question said: “ The basis of the opinion of the learned judge below and the argument of the appellee is that a township is liable to the plaintiff, and it seems to have been accepted without question that in such case the defendant was not liable. But this does not appear to us to be a necessary or just conclusion. It is opposed in the first place, to the general rule that a party injured by the concurrent tort of two may sue either, and this right is not affected by any circumstances of primary or secondary duties of the tort feasors as between themselves.” It being the duty of a municipality to keep its streets in a reasonably safe condition for those who have occasion to use them by day or night, it follows that if it fails in the performance of this duty it is properly chargeable with negligence and liable in damages for injuries resulting therefrom: Johnson v. Philadelphia, 208 Pa. 182. If, therefore, the defendant borough failed in the performance of its duty to keep, or cause to be kept, its pavements in a reasonably safe condition for public use, it is liable in damages for such injuries as resulted from the negligence complained of, and its liability is not affected by the question of the nonliability of an abutting property owner.

Assignments of error overruled and judgment affirmed.


author: Mr. Justice Potter,

text:
    Felix, Appellant, v. Fidelity Mutual Life Insurance Company of Philadelphia.

      Insurance — Life insurance — Suicide—Proofs of death.

    In an action on a policy of life insurance where the company sets up as a defense that the deceased committed suicide within two years from the date of the policy, in violation of its terms, proofs of death are admissible as prima facie evidence of the fact of suicide, where such proofs show that the cause of death was suicide; but they are not conclusive of that fact.

      In an action on a policy of life insurance the company set up suicide as a defense. The coroner was called and testified that he found the deceased sitting in his office chair with the top of his head blown off, his arms down, and a shot gun resting between his legs, with a loop of twine through the trigger guard around his right foot. This testimony was not contradicted. Held, that it was sufficient to justify a verdict in favor of the company.
    Argued May 21, 1906.
    Appeal, No. 275, Jan. T., 1905, by plaintiff, from judgment of C. P. Northumberland Co., Sept. T., 1902, No. 186, on verdict for defendant in case of Charlotte S. Felix v. Fidelity Mutual Life Insurance Company of Philadelphia.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance. Before Aijten, J.
    At the trial defendant set up as a defense that the insured committed suicide within two years from the date of the policy, and in violation of its terms.
    The court charged in part as follows:
    [The proofs of death and justness of claim submitted to this defendant company contain a statement of the claimant,' the plaintiff in this case, a statement by the attending physician, a statement by a friend, and the undertaker’s statement. In the statement made by the claimant, the present plaintiff, in answer to the interrogatory “ was the death of the deceased in any degree caused by his own hand or act ? ” the answer is “ do not know,” “ found him dead at store,” “ caused by a gun shot wound.” The statement of the physician is to the effect that death was caused by suicide, as is also the statement made by the friend, A. G. Goodwill.
    Now, gentlemen of the jury, I charge you that this statement sent by the claimant or on her behalf to the company is prima facie evidence of the cause of Mr. Felix’s death, to wit: that he committed suicide.] [1]
    [I further charge you that the burden is upon the plaintiff to show you by a preponderance of the evidence that those are mistaken statements in the proofs of death, and that unless the plaintiff does convince you by the weight of the testimony that the statements to the effect that the deceased committed suicide are incorrect or untrue, then the verdict should be for the defendant; but I at tbe same time say, while they are prima facie evidence that the deceased took his own life, that his death was caused by his own hand or act, yet those statements are subject to explanation or qualification, or contradiction by the plaintiff. Now have they qualified, explained or contradicted these statements which go to the effect that the deceased took ■ his own life or committed suicide ?] [2]
    [Upon the question of suicide you must take into consideration the statements made in the death proofs ; you will take into consideration further the condition in which he was found, the fact that there was a string passing through this trigger guard, and the evidence also shows that the gun — at least the results show, that the gun was loaded.] [3]
    [Now, gentlemen of the jury, the evidence of the death so far as we have been able to get it, is not very extensivé. If this plaintiff has convinced you by the weight of the testimony, that Charles D. Felix did not commit suicide, then I say to you that your verdict should be for the amount of her claim, to wit: the sum of $2,500 with interest from February 19, 1902.] [4] Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1--4) above instructions, quoting them.

      Wm. E.. M. Oram, with him J. W. Gillespie, for appellant.
    The burden of proof was on the defendant to show that death was caused by suicide: Shank v. United Brethren Mut. Aid Society, 84 Pa. 385; Continental Life Ins. Co. v. Delpeuch, 82 Pa. 225; Reynolds v. Supreme Conclave, 19 Lane. 129; Fisher v. Life Assn., 188 Pa. 1; Hill v. Central Accident Ins. Co., 209 Pa. 632; Home Benefit Assn. v. Sargent, 142 U. S. 691 (12 Sup. Ct. Repr. 332).
    While proofs of death are admissible in evidence, the plaintiff is not estopped at the trial by anything stated therein by physicians or others : Holleran v. Assurance Co., 18 Pa. Superior Ct. 573; Ins. Co. v. O’Neill, 110 Pa. 548; Baldi v. Ins. Co., 24 Pa. Superior Ct. 275; Lebanon Mut. Ins. Co. v. Kepler, 106 Pa. 28; Dougherty v. Pacific Mut. Life Ins. Co., 154 Pa. 385 ; Leman v. Life Ins. Co., 24 L. R. A. 589 ; Fisher v. Fidelity Mut. Life Assn., 188 Pa. 1,

      June 27, 1906 :

      S. P. Wolverton and C. M. Clement, for appellee; —
    The death proofs were prima facie evidence for the appellee : Mutual Life Ins. Co. v. Newton, 89 U. S. 32; Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526 (44 N. E. Repr. 1099); Hassencamp v. Life Ins. Co., 120 Fed. Repr. 475.
    The prima facie case is sufficient and conclusive, unless rebutted by the other evidence of the case: State v. Sattley, 131 Mo. 464 (33 S. W. Repr. 41) ; Benseman v. Ins. Co., 13 Pa. Superior Ct. 363; Lee v. McMillan, 23 W. N. C. 483; Agen v. Life Ins. Co., 105 Wis. 217 (80 N. W. Repr. 1020); Hassencamp v. Life Ins. Co., 120 Fed. Repr. 475.
   Opinion by

Mr. Justice Potter,

The question in controversy here is as to the manner in which the insured came to his death. If it was suicide, thfen under the terms of the policy there could be no recovery. Upon the trial of the cause in the court below, the defendant company offered in evidence the proofs of death which had been submitted to it by the claimant, for the purpose of showing that according to the statements set forth in the said proofs of death, the insured had died by his own hand, within two years from the date of the policy, and that it was therefore null and void.

The insuring company in this case stipulated that the policy should not apply to self-destruction within the time designated, whether by one who was sane or insane. The words limiting liability in this respect are precise and definite, and the language could not fail to inform the holder of the policy that if he purposely destroyed his own life within two years, the company would be relieved from liability. The trial judge admitted the proofs of death as prima facie evidence of suicide, against the objection of the plaintiff. This'was proper, for they were representations on the part of the one for whose benefit the policy was taken, as to the manner of the death of the insured. She had presented them to the company in accordance with the requirements of the policy as part of the proof necessary to establish the liability of the insurer. “ They were intended for the action of the company, and upon their truth the company had a .right to rely. Unless corrected for mistake, the claimant was bound by them. Good faith and fair dealing required that she should be held to representations deliberately made until it was shown that they were made under a misapprehension of the facts, or in ignorance of material matters subsequently ascertained: ” Insurance Co. v. Newton, 89 U. S. 32.

The proofs of death furnished by claimant to the defendant company, which showed suicide, operated as admissions by her of a material fact and were competent evidence against her under the rule as to admissions against interest: Hanna v. Conn. Mutual Life Ins. Co., 150 N. Y. 526. But she was not concluded by these statements. It was open for her to give evidence changing or correcting the statements as to the facts, which had been made by or for her. This was just what the trial judge said to the jury. After instructing them that the statements as to the cause of death submitted by the claimant were prima facie evidence thereof, the trial judge continued in his charge as-follows: “ But I at the same time say that while they are prima facie evidence that the deceased took his own life, that his death was caused by his own hand or act, yet these statements are subject to explanation or qualification, or contradiction by the plaintiff.” This presentation of the case gave to the plaintiff the benefit of everything to which she was justly entitled. It gave her an opportunity to show the exact truth, and to correct any mistake that may have been made in the formal proofs of death which had been submitted by her or on her behalf to the company. A prima facie case having been made out, in favor of the defendant company, by the solemn statements made under oath, submitted by the claimant, the learned trial judge was correct in holding that the burden of evidence to show that the death of the insured was not self-inflicted, was shifted to the plaintiff. “ The burden of proof is shifted by every species of evidence strong enough to establish a prima facie case against a party : ” Best on Evidence, sec. 273. If the case had closed without any rebutting evidence having been offered on the part of the plaintiff, the jury could not have been permitted to disregard the presumptive evidence of suicide contained in the proofs of death. And therefore the trial judge correctly stated the principles of law applicable to the facts at that stage of the case, when he said to the jury, “ if this plaintiff has convinced you by the weight of the testimony that Charles D. Felix did not commit suicide, then I say to you that your verdict should be for the amount of her claim.” The case had assumed that attitude by reason of the admissions made to the company in the proofs of death. The court went to the verge of liberality to the plaintiff in submitting the question to the jury at all, for the evidence offered at the trial was very slight as to the cause of death being other than as stated in the proofs of death.

There was nothing to show that the statements in the proofs were erroneous, nor was any testimony offered to rebut the only reasonable inference which could be drawn from the testimony of the coroner, that the case was one of suicide. The coroner testified that he found the deceased sitting in his office chair with the top of his head blown off, his arms down, a shotgun resting between his legs, with a loop of twine through the trigger guard around his right foot. This testimony was not contradicted in any way. It was of a nature to carry with it the instinctivé and intuitive conviction that the injury was self-inflicted. The circumstances instead of discrediting in any way the conclusions drawn from them by the friends who made the sworn statements at the request of the claimant to be filed with the company as explanatory of the cause of death, evidently only operated upon the minds of the jury as corroborative of their correctness, and they showed by their verdict that they too must have drawn the same inference as that set forth in the statement filed with the company. As the trial court said in the opinion refusing the motion for.a new trial, “plaintiff was given an opportunity of contradicting, modifying or explaining the death proofs. The burden of doing this to the satisfaction of the jury was upon her, and she evidently failed.”

We can see no merit in any of the assignments of error, and the judgment is affirmed.


author: Me. Justice Stewart,

text:
    Raymer, Appellant, v. Standard Steel Works.

      Negligence — Master and servant — Unsafe appliance.

    In an action against a steel company by one of its employees to recover damages for personal injuries, it appeared that plaintiff was injured while working about a crane employed in carrying steel billets from the furnace where they were heated, to the die on which they were to- be hammered into shape. His employment required him to assist by means of large tongs in changing from time to time the position of the heated billets on the die as the hammering proceeded. The tongs were attached to the billet by a chain passing around it. While thus engaged the tie rod connecting the crane from which the billets and tongs were suspended, with the mast or upright, broke, with the result that the arm of the crane being unequal to the burden, dropped below the proper level, and with it fell the burden, billet and tongs, in such a way as to injure the plaintiff. Binding instructions for defendant were given on the ground that the evidence established that .the tie rod conformed to a standard of safety that common experience had accepted as adequate. Held, that there was sufficient conflict of testimony on this point to require a submission to the jury.
    Argued May 21, 1906.
    Appeal, No. 166, Jan. T., 1906, by plaintiff, from judgment of C. P. Mifflin Co., Aug. T., 1903, No. 38, on verdict for defendant in ease of Philip G. Raymer v. Standard Steel Works.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Saviege, P. J., specially presiding.
    The facts relating to the accident are stated in the' opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant.

      Error assigned was in giving binding instructions for defendant.

      J. Howard Neely, with him J. C. Houser and A. Reed Rayes, for appellant.
    Providing proper tools and machinery is an absolute duty of the employer, a direct, personal, absolute obligation from which nothing but performance will relieve him : Prevost v. The Citizens’ Ice & Refrigerating Co., 186 Pa. 617 ; Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Ball Engine Co., 176 Pa. 459 ; Finnerty v. Burnham, 205 Pa. 305.
    June 27, 1906 :
    It is manifest that the authorities which hold, that common, ordinary usage is the test of the employer’s responsibility, as in Titus v. R. R. Co., 136 Pa. 618, and Leonard v. Herrmann, 195 Pa. 222, did not warrant the binding instructions for defendant under the evidence in the case : O’Brien v. Sullivan, 195 Pa. 474; Hoffman v. Clough, 124 Pa. 505; Bannon v. Lutz, 158 Pa. 166; Honifius v. Engineering Co., 196 Pa. 47 ; Sopherstein v. Bertels, 178 Pa. 401; Finnerty v. Burnham, 205 Pa. 305.

      R. C. Elder, with him D. W. Woods and W. W. Uttley, for appellee.
    An employer need not inform an adult employee of an obvious danger. An employee, by contracting for the performance of hazardous duties, assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain : Reese v. Clark, 146 Pa. 465 ; Higgins v. Fanning, 195 Pa. 599; Cunningham v. Fort Pitt Bridge Works, 197 Pa. 625.
    An employer performs his duty when he furnishes machinery and appliances of ordinary character and reasonable safety, and the former is the test of the latter: Titus v. Bradford, etc., R. R. Co., 136 Pa. 618; Kehler v. Schwenk, 144 Pa. 348; Dooner v. Del. & Hudson Canal Co., 171 Pa. 581 ; Leonard v. Herrmann, 195 Pa. 222; Service v. Shoneman, 196 Pa. 63.
   Opinion by

Me. Justice Stewart,

The plaintiff was injured while working about the crane employed in carrying steel billets from the furnace where they were heated, to the die on which they were to be hammered into shape. His employment required him to assist by means of large tongs, in changing from time to time the position of the heated billets on the die as the hammering proceeded. The tongs were attached, to the billet by a chain passing around it. While thus engaged the tie rod connecting the crane from which the billets and tongs were suspended, with the mast or upright, broke, with the' result that the arm of the crane being unequal to the burden, whatever that was, dropped below its proper level, and with it fell the burden, billet and tongs, in such a way as to occasion the injuries to the plaintiff. Under what circumstances it broke, and what elements contributed to its fall, it does not concern us to inquire, since, as the case was presented, we have nothing to consider but the feature of it that determined the action of the court below in directing a verdict for the defendant; and this may readily be understood from the meager statement of the facts we have above given.

The learned judge very properly held that the employer’s duty, with respect to tools and appliances furnished his employees, is fully met when he provides such as are reasonably safe, and that the law will so regard them if they conform to the standard approved by general experience, as attested by general adoption for like uses under like conditions. But we cannot agree that the testimony in the case, on one side and the other, with reference to the tie rod, admittedly an essential appliance in connection with the crane, was in such accord as to warrant the court in concluding that a common standard of safety with respect to tie rods had been established, and that in this case the rod conformed to that common standard. There was little disagreement between plaintiff’s and defendant’s witnesses as to the common factor of safety observed when the strain is simply from a dead or constant steady weight, the common factor of safety in such ease being as here about six to one ; but there was a marked divergence in the testimony as to what is required or observed when, because of the manner of its employment, in addition to the dead weight, the crane is made to stand, in more or less degree, the force or shock of a steam hammer, as was the case here. “ Is it intended that the crane shall carry any of the blow received from the hammer?” was asked of the plaintiff’s witness, Mr. Whitham, a professional mechanical engineer. His reply was : “ I don’t suppose it is intended, but it is impossible to prevent it with a crane constructed this way.” This same witness, speaking, as he said, not from any book or theory, but from observation and experience, testified to the insufficiency of this tie rod for the burden and strain that was expected of it, and to which it was subjected. What this experience and observation amounted to may be gathered from his answer to the question asked him, whether he had any experience as to what was being done in establishments working metal, iron or steel, on a crane with working hammer. His reply was : “ Since I have been in Philadelphia I have been in at least sixty or seventy iron works in some capacity, either to advise a prospective buyer, or some one to whom the factory wanted to sell something; in such capacity my work constantly takes me among such-plants.” He further testified that for the last twenty-eight years he had seen cranes at work with drop hammers at more than half a dozen large establishments which he named, and that he knew of no machines designed for operation in motion which had a factor of safety less than ten to one. Mr. Kitchell, another of the plaintiff’s witnesses, also a professional engineer, testified to an experience extending over fifteen years in connection with working cranes, and the required factor of safety for a tie rod on a crane with working hammer as given by this witness is twelve, twice that which was afforded in the present case. He referred to a mill that he had recently visited where the factor of safety was ten in a crane employed only in lifting dead weight, and said he had had practical experience in works of this kind both at Scranton and Bethlehem.

It is not for us to consider the weight of this evidence, or contrast it in this respect with the evidence offered on behalf of defendant. The exhibit we make of it, is simply to show that there was not that absolute concurrence of testimony that warranted the court in assuming that the tie rod here, conformed to a standard of safety that common experience had accepted as adequate, and so shown by its general adoption. There was unquestionably conflict between the testimony adduced by the plaintiff and that offered by defendant on this point. This left it an open question for the jury, who alone could decide it. To them it should have been submitted under proper instructions. The assignment of error which relates to the binding instructions given by the court is sustained.

Judgment reversed and venire facias de novo awarded.


text:
    Miller, Appellant, v. Northern Central Railway Company.

      Negligence — Master and servant — Fellow servant — Act of April 4, 1868, P. L. 58.
    Where a siding is constructed for the sole use of a coal company, and on the siding the cars of a railroad company are operated by the employees of the latter company, an employee of the coal company who is killed by the negligence of the trainmen of the railroad company while he is repairing a railroad company’s car on the siding of the coal company, is a fellow servant of the trainmen within the meaning of the Act of April 4, 1868, P. L. 58, and no damages can be allowed from the railroad company for his death.
    Argued May 21, 1906.
    Appeal, No. 167, Jan. T., 1906, by plaintiff, from order of C. P. Northumberland Co., Sept. T., 1904, No. 415, refusing to take off nonsuit in casepf Joseph A. Miller v. The Northern Central Railway Company, Lessee of the Shamokin Valley & Pottsville Railroad Company.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Savidg-e, P. J.
    At the trial it appeared that a son of the plaintiff, Casper C. Miller, aged about twenty-two years, was employed by the Mineral Railroad and Mining Company, a coal mining company, to repair cars on the company’s siding. The cars belonged to the defendant. While engaged at work the trainmen employed by the defendant, without warning the deceased, pushed cars on to the siding with the result that the deceased was squeezed between two cars and so seriously injured that he died within a few hours. The court entered a compulsory nonsuit on the ground that the deceased was a fellow servant of the trainmen within the meaning of the Act of April 4,1868, P. L. 58.

      Error assigned was refusal to take off nonsuit.

      W. H. Unger, with him U. G. Unger, for appellant.
    Miller was neither working on defendant’s railroad nor doing railroad work, hence was not within the Act of April 4,1868, P. L. 58: Keck v. R. R. Co., 206 Pa. 501; Spisak v. R. R. Co., 152 Pa. 281; Cohen v. R. R. Co., 211 Pa. 227; Schum v. R. R. Co., 107 Pa. 8 ; Penna. R. R. Co. v. Weiss, 87 Pa. 447; Butterman v. McClintic-Marshall Con. Co., 206 Pa. 82; Mucbinhaupt v. Erie R. R. Co., 196 Pa. 213; Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Shafer v. Lacock, 168 Pa. 497; Kitler v. Ry. Co., 27 Pa. Superior Ct. 602; Christman v. R. R. Co., 141 Pa. 610; Noll v. Phila. & R. R. Co., 163 Pa. 504; Richter v. Penna. Co., 104 Pa. 511; Hickey v. Solid Steel Casting Co., 212 Pa. 255.
    June 27, 1906 :

      J. Simpson Kline and W. H. M. Oram, for appellee.
    The deceased was a fellow servant of the train hands of the defendant company, within the provision of the act of April 4, 1868: Weaver v. Phila. & Reading Ry. Co., 202 Pa. 620 ; Cummings v. Ry. Co., 92 Pa. 82; Mulherrin v. R. R. Co., 81 Pa. 366; Stone v. Pennsylvania R. R. Co., 132 Pa. 206 ; Laporte v. Ry. Co., 209 Pa. 469.
   Opinion by

Mr. Justice Elkin,

Three questions are raised by this appeal: the negligence of the appellee, the contributory negligence of the deceased son, and the application of the act of 1868. The court below entered a nonsuit on the first two grounds, but held that the deceased was not a fellow servant within the meaning of the above-mentioned act. Being of opinion that the case at bar is ruled by Weaver v. P. & R. Ry. Co., 202 Pa. 620, it will not be necessary to consider the other questions raised. In the case cited this court held that where an iron company constructs a siding on its own land on which the cars of a railroad company are to be operated by the employees of the railroad company, an employee of the iron company who is injured by the negligence of the trainmen of the railroad company while he is loading a railroad company’s car on the siding of the iron company, is a fe.llow servant of the trainmen within the meaning of the act of 1868, and cannot recover damages from the railroad company for the injuries sustained.

The facts of the case at bar more strongly favor the appellee here. In that case the injured employee was engaged by the iron company in loading the cars of the railroad company with the manufactured product of the iron company. In the case . at bar the deceased son of appellant was a car patcher, whose duties required him to patch or repair the cars of the railroad company before they were loaded with coal for shipment. It is true as a matter of convenience he was paid by the coal company, but the worlc done was on the property of the railroad company, and was the kind of work ordinarily done by its employees. Under the rule of our cases the injured employee must be considered a fellow servant of the employees of the railroad company under the act of 1868.

The learned counsel for appellant contends that the case at bar comes more nearly within the rule of Spisak v. B. & O. R. R. Co., 152 Pa. 281. With this contention we do not agree. The distinction is manifest. In that case the injured party was a brakeman in the employ of the steel company, which owned and operated its own locomotive for shifting cars while they were being loaded and weighed in the yard of the steel company. When the railroad company shunted the cars on the siding of the steel company its duty ceased until they were loaded and ready to take out. The steel company exercised entire supervision in the operation of the locomotive and the control of the brakeman and others employed in shifting the cars while they were being loaded and weighed. It was during this time the accident occurred through the negligence of an employee of the railroad company. The brakeman who was injured, the yard boss at whose direction the car was moved, the engineer who ran the locomotive, and the other workmen were the employees of the steel company, engaged in the work of that company, and were not performing any duty for the railroad company. Under these circumstances, the court very properly held the injured party was not a fellow servant of the employees of the railroad company under the act of 1868. The facts of the case at bar so clearly distinguish it from that case that no useful purpose can be served by further consideration of them.

Assignments of error overruled and judgment affirmed.


text:
    Commonwealth, Appellant, v. Monongahela Bridge Company.

      Practice, C. P. — Trial by court without a jury — Act of April 22, 1874— Findings of fact.

    There is no requirement in the Act of April 22, 1874, P. L. 109, providing for trial by the court without a jury, that the court shall specifically answer upon the record all the requests for findings of fact submitted by counsel. No further answers to requests for findings of fact are required than the statement of the facts found by the court.

      Corporations — Stock—All stock held by one person — Bridge company.

    A corporation is an entity irrespective of, and entirely distinct from, the persons who own its stock. All the shares in the corporation may be held by a single person, and yet the corporation continue to exist.
    The franchises of a corporation organized for the purpose of constructing and maintaining a bridge will not be declared forfeited merely because all of its shares have been acquired and are held by a municipality.

      Practice, C. P. — Res adjudicata — Cause of action.

    Where there are two suits between the same parties, but upon different causes of action, the allegations in the pleadings in the first suit are admissible as evidence in the second suit for whatever they are worth, but they are not conclusive.
    A judgment of a court of concurrent or exclusive jurisdiction is not evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.

      Corporations — Forfeiture of charter — Caution in proceedings.

    The courts proceed with extreme caution in proceedings which have for their object the forfeiture of corporate franchises, and a forfeiture will not be allowed, except under express limitation, or for a plain abuse of power by which the corporation fails to fulfill the design and purpose of its organization.
    Argued May 22, 1906.
    Appeal, No. 2, May T., 1906, by plaintiff, from judgment of (L P. Dauphin Co., Commonwealth Docket, 1900, No. 181, on case tried by the court without a jury in suit of Commonwealth ex rel. Attorney General v. Monongahela Bridge Company.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Quo warranto to forfeit the franchises of a corporation. Before Weiss, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant.

      John G. Johnson and Lyman L. Gilbert, with them Homer Shoemaker, A. W. Luff, Hampton L. Carson, attorney general, and Frederic W. Fleitz, deputy attorney general, for appellant.
    The adjudication was not in proper form: Ellis v. Lane, 85 Pa. 265 ; Foreman v, Hosler, 94 Pa. 418; Lewars v. Weaver, 121 Pa. 268; Carpenter v. Yeadon Borough, 208 Pa. 396; Swank v. Phillips, 113 Pa. 482 ; Com. v. Ry. Co., 188 Pa. 203.
    The defendant is estopped from asserting its corporate existence : Kiern v. Ainsworth, 95 Pa. 310; Slayton v. Graham, 139 Pa. 1; Phila., etc., R. R. Co. v. Howard, 54 U. S. 307; Ry. Co. v. McCarthy, 96 U. S. 258; Davis v. Wakelee, 156 U. S. 680 (15 Sup. Ct. Repr. 555) ; Stevens v. Hughes, 31 Pa. 386; Aurora City v. West, 74 U. S. 82; Schwan v. Kelly, 173 Pa. 65.

      A. M. Thompson, with him W. B. Lodgers and T. L. Carnahan, for appellee.
    The Monongahela Bridge Company has not conveyed its bridge structure, its franchises and assets to the city of Pittsburg.
    There has been an exact observance of all the requirements of the act of 1874 in this case: Long v. Reed, 4 Pa. Dist. Rep. 72.
    The findings of fact by the learned judge of the court below cannot now be disturbed: Eichman v. Hersker, 170 Pa. 402 ; Southern Maryland R. R. Co. v. Moyer, 125 Pa. 506 ; Jamison v. Collins, 83 Pa. 359; Griffith v. Sitgreaves, 90 Pa. 161; Rohrheimer v. Hofman, 103 Pa. 409; Brown v. Susquehanna Boom Co., 109 Pa. 57; Commonwealth v. Hulings, 129 Pa. 317.
    There has been Uo declaration or acknowledgment by the city of Pittsburg that the Monongahela bridge was a free bridge, and no corporate act on the part of the city of Pitts-burg taking physical possession of this bridge. The only ground for any such contention is the fact that foot passengers and ordinary vehicles are no longer charged toll; but this can hardly be adjudged an injury to the public. The fact that the general public does not have to pay toll is no violation of charter obligations: Com. v. Allegheny Bridge Co., 20 Pa. 185.
    The defendant is not estopped from insisting upon its corporate existence : Hibshman v. Dulleban, 4 Watts, 191; Forcey’s App., 106 Pa. 508.

      June 27, 1906:
   Opinion by

Mr. Justice Potter,

This was an action of quo warranto brought by the Commonwealth ex rel. The Attorney General, against the Monongahela Bridge Company, and based on an alleged forfeiture of its franchises. The suggestion for the writ stated that the attorney general was informed as to the facts alleged therein by the Pittsburg and Birmingham Traction Company. Trial by jury was dispensed with, under a stipulation of the parties, and the case was heard by the court under the provisions of the Act of April 22, 1874, P. L. 109. The facts were found by the trial judge substantially as follows: The Monongahela Bridge Company was incorporated under the Act of March 19, 1810, 5 Sm. L. 114, for the purpose of erecting a bridge over the Monongahela river, opposite Pittsburg, and various other acts supplementary to the act of 1810, were enacted by subsequent legislatures. A bridge was erected by the company as authorized by the charter, and maintained as a toll bridge. The Pittsburg and Birmingham Passenger Railway Company was subsequently chartered under the Act of April 13,1859, P. L. 749, and authorized to construct a railway across the bridge of the Monongahela Bridge Company.

In 1889 the railway company was authorized to operate its cars by cable instead of horse power, and a year later its name was changed to the Pittsburg and Birmingham Traction Com- , pany, and it was authorized to operate by electricity in addition to cable.

In 1889 an agreement was entered into between the bridge company and the railway company whereby the former agreed to reconstruct and widen the bridge and provide a sufficient roadway to enable the cars of the latter to cross on double tracts, by cable, and in 1890 a supplemental agreement was made between the bridge company and the traction company authorizing the latter to' use electricity as a motive power instead of cable. The railway company agreed to and did advance a large sum of money towards the reconstruction of the bridge, which was to be liquidated by tolls.

In 1893 the city of Pittsburg by ordinance authorized an increase of its indebtedness for the purpose of erecting and purchasing bridges over the Monongahela river, and in 1895 proceedings were instituted by the city to ascertain damages for taking and appropriating the property, rights and franchises of the bridge company. Viewers were appointed who awarded damages for the taking of the bridge, and an appeal was taken by the city from the award. Pending the determination of this appeal, the city entered into an agreement with the stockholders of the bridge company, by which it purchased the entire stock of the company, and all the stock was transferred to the city, or to persons designated by its representatives. Directors named by the city, being municipal employees, were substituted for the former directors. The transfer was made April 11,1896, and since that time no tolls have been charged for foot passengers or horse and wagon traffic over the bridge, and it has been maintained at the expense of the city, and the revenues received from it have been paid into the city treasury. When the stock was acquired by the city, the condemnation proceedings were discontinued. No meetings of stockholders of the bridge company have been held since the transfer of the stock, and no directors’ meetings since July 81, 1897.

In 1896 the traction company sued the bridge company for a portion of the money advanced for the reconstruction of the bridge as above stated. ' The suit resulted in judgment for the defendant: Traction Co. v. Bridge Co., 184 Pa. 180. In 1898 the bridge company sued the traction company to recover tolls, and this suit resulted in a judgment for the plaintiff: Bridge Co. v. Traction Co., 196 Pa. 25. Upon the trial of the latter suit the defendant attempted to raise the question of the right of the bridge company to exercise corporate franchises, but it was held that this question could not be raised in a collateral proceeding. In 1897 the bridge company appealed from the settlement made against it by the accounting officers of the commonwealth for tax on its capital stock, and among the specifications of objection stated that since April 13, 1896, the entire capital stock of the Monongahela Bridge ■ Company has been owned absolutely by the city of Pittsburg; that no tolls have been collected; that the property so acquired has been managed, operated and controlled as like property of the city; that no dividends have been declared; that the organization of the company has been maintained solely for the purpose of determining whether or not certain written contracts between the bridge company and the traction company

relative to the payment of tolls can be enforced by the city; and that the purpose and effect of the sale to the city of'Pittsburg of all the shares of the capital stock of the Monongahela Bridge Company was to convey the entire property of the Monongahela' Bridge Company to the city of Pittsburg/ The appeal was tried, and a verdict rendered, December 2, 1898, for the defendant, and a discontinuance entered the same day by the attorney general.

In the present case the commonwealth alleges that by reason of the misuser of the rights, privileges and functions of the Monongahela Bridge Company, they have been forfeited, and its letters patent are null and void. Upon this issue the court below found in favor of the respondent, and from its judgment entered for 'the defendant, this appeal has been taken.

It is apparent, both from the pleadings and the evidence, that the motive for instituting this proceeding was to relieve the Pittsburg and Birmingham Traction Company from the payment of tolls for the use of the bridge. In Bridge Col v. Traction Co., 196 Pa. 25, ir was held that the question of ultra vires could not be raised collaterally, and consequently the traction company, which was defendant in that case and the losing party, lodged with the attorney general the information and complaint, which led to the application for this writ of quo warranto.

The attorney general was apparently unwilling to deny to the traction company an opportunity to have the question of forfeiture of defendant’s charter determined by the courts, in the only way in which it could successfully be raised, that is, Upon his suggestion, but he was careful to set forth the fact that the information came from the traction company, and that the action was based upon the contention made by that company in its petition to him asking that the suggestion be filed in the proper court. The relations existing between the traction company and the bridge company have already, in part at least, been considered twice by this court. The case of Pittsburg & Birmingham Traction Co. v. Monongahela Bridge Co., 184 Pa. 180, was an action to recover an amount of money advanced by the traction company for reconstructing the bridge. Under the contract this was to be paid by crediting the tolls chargeable against the company; but the latter claimed that, owing to the fact that the city had purchased all the stock of the bridge company, and made the bridge free to the public, the company must be held to have surrendered its franchises, and to be no longer in existence, and therefore could collect no further tolls under the contract. The court below held that the contract remained in force, and that no recovery could be had by the traction company, of the moneys it had advanced, and on appeal the judgment for defendant was affirmed. The substance of the contention in that case was the same as in this. But in that proceeding, the existence of the corporation, the Monongahela Bridge Company, was not, nor could it be, questioned. Then in Monongahela Bridge Co. v. Traction Co., 196 Pa. 25, the present defendant sued the same traction company to recover tolls alleged to be due. The defense was attempted to be set up, that the bridge company had forfeited its franchises by the sale of its stock to the city. Judgment was given for the plaintiff, and afterwards affirmed by this court. While the case was decided upon other grounds, it was pointed out by our Brother Mestbezat, that the purchase of the entire stock of the bridge company by the city did not dissolve the corporation, or vest in the city the title to the property of the bridge company.

And now in the present case, the issue is simply whether or not the defendant company has done anything which has forfeited its right to exist, and exercise the functions of a corporation.

There is no allegation in the pleadings of any failure to maintain the corporate organization. The only wrongful act alleged is that the ownership of the entire stock of the bridge company has passed to the city of Pittsburg. There is nothing in the evidence to show that the company as such sold any stock to the city. The stock was sold by the shareholders acting through a committee of their own number. The bridge company as a corporation had no stock to sell; it owned none; there was none in the treasury. As a matter of convenience the stockholders acted together in the matter, but the sale was that of the stockholders and was not by the company.

Counsel for appellant has complained of the form and sufficiency of the findings of fact by the trial judge, but we see no merit whatever in these assignments. The facts are found separately and. in numbered paragraphs, and are followed by a discussion of the law, and the conclusions reached by the court. The essential facts were not in dispute, and were for the most part agreed upon by counsel in writing and made part of the record. There is no difficulty in ascertaining from the record the real questions of law to be passed upon, and we think there was a substantial compliance with the act of 1874, and with the decisions of this court.

There is no requirement in the act that the court shall specifically answer upon the record, all the requests for findings of fact submitted by counsel. The act requires only that the court shall state “ separately and distinctly the facts found, the answers to any points submitted in writing by counsel, and the conclusions of .law.” No further answers to requests for findings of fact are required than the statement of the facts found by the court. The cases cited by appellant on this question relate to charging the jury upon points submitted, not to findings by the court alone, under the act of 1874.

That the bridge company should be held to have lost its corporate functions by reason of the sale by the shareholders of their stock to the city, is indeed, as the court below says, a staggering proposition. Yet no other reason for forfeiture has been shown in this case. If the stock had been purchased by private individuals no one would have thought of suggesting that the transfer could in any way affect the right of the company to exist.

It was pointed out in Bridge Co. v. Traction Co., 196 Pa. 25, that under the authorities, a corporation is an entity irrespective of, and entirely distinct from, the persons who own its stock. “ It is well settled that all the shares in a corporation may be held by a single person, and yet the corporation continue to exist; and if the charter or by-laws should require certain acts to be done by more than one shareholder, the sole owner may transfer a portion of his shares to other persons, so as to conform to the letter of the rule : ” Morawetz on Private Corporations, sec. 1009.

In Rhawn v. Edge Hill Furnace Co., 201 Pa. 637 (644), it was again held that “ the fact that one person owns all of the stock does not make him and the corporation one and the same person,” and in Kendall v. Klapperthal Co., 202 Pa. 596, Judge Endlich said in an opinion approved by this court (p. 607) : “ A corporation does not lose its legally distinct and separate personality by reason of the ownership of the bulk or the whole of its stock by another: ” citing Monongahela Bridge Co. v. Traction Co., 196 Pa. 25.

“ The judicial decisions seem to be unanimous to the effect that the mere fact that all the shares of a corporation pass into the ownership of one person does not of itself dissolve the corporation. They rest upon the principle' that a corporation is not dissolved by the destruction of an integral portion of its membership, so long as the remaining portion has the power to restore or renew the defective part. . . . Such sole owner may so dispose of the shares as, by the election of the necessary directors and officers, to continue the corporate existence: ”10 Cyc. Law & Pr. 1277.

“ It makes no difference in principle whether the sole owner of the stock of a corporation is a man or another corporation. The corporation owning such stock is as distinct from the corporation whose stock is so owned as the man -is from the corporation of which he is the sole member: ” Exchange Bank v. Construction Co., 97 Ga. 1 (6).

The fact that the city of Pittsburg is the owner of the stock of the bridge company is immaterial in this case, because it makes no difference to the commonwealth who the owner of the stock may be, so long as the proper and legitimate functions of the corporation are discharged. Ownership of the stock does not vest in the city the ownership of the physical properties of the bridge company. Further, neither the city of Pittsburg nor the shareholders of the bridge company are parties to this action.

The contention is also made that the bridge company is es-topped from alleging its corporate existence by reason of its answer made to the commonwealth in the suit for taxes. That suit was against this defendant, but it was upon a different cause of action. The allegations in that case may therefore be admissible as evidence for whatever they are worth, but they are not conclusive.

“ The moment we leave the sphere of the same cause, we leave behind all question of judicial admissions. A judicial admission is a waiver of proof; and a pleading is for the purpose of the very cause itself, a defining of the lines of controversy and a waiver of proof of all matters outside these lines of dispute. But this effect ceases with that litigation itself; and when we arrive at other litigation and seek to resort to the parties’ statements as embodied in the pleadings of prior litigations, we resort to them merely as quasi admissions, i. e., ordinary statements, which now appear to tell against the party who then made them : ” 2 Wigmore on Evidence, sec. 1065.

The record is received, “ not as an adjudication conclusively establishing the fact, but as the declaration or admission of the party himself that the fact is so: ” Truby v. Seybert, 12 Pa. 101 (103).

The judgment in the tax suit was in no way conclusive as to the validity of the charter, or that the corporation was dissolved, or had forfeited its franchises ; the only thing there adjudicated was the fact that it was not liable for any tax upon the capital, stock at the time that settlement was made. In the present case the court below admitted the record in the tax case as evidence of the facts therein contained, and in so doing the appellant received the benefit pf all that it was entitled to ask. We must presume that the record received such consideration as it deserved, the more especially as it was a judgment rendered by the same court.

“ A judgment of a court of concurrent or exclusive jurisdiction is not evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment Forcey’s App., 106 Pa. 508 (515).

We have found nothing in the evidence in this case to indicate that any interest of the commonwealth or of the public would be advanced by a judgment of ouster. “ The courts proceed with extreme caution in proceedings which have for their object the forfeiture of corporate franchises, and a forfeiture will not be allowed, except under express limitation, or for a plain abuse of power by which the corporation fails to fulfill the design and purpose of its organization : ” High on Extraordinary Leg. Rem. sec. 649.

We agree with the conclusions of the learned judge of the court below that the case is bare of evidence showing any just grounds for declaring a forfeiture of the charter of the defendant company. Neither nonuser nor misuser of its franchise rights has been shown.

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


author: Mk. Justice Potter,

text:
    Weber v. Harrisburg, Appellant.

      Negligence — Municipalities—Pathway in park — Landing place for boats.

    A municipality is bound to see that a pathway through land used as a public park is kept in reasonably safe condition for pedestrians.
    The fact that the path skirts the bank of a river, where boats are moored, does not justify or excuse the city in permitting a dangerous obstruction to remain across the footway.
    Argued May 22, 1906.
    Appeal, No. 1, May T., 1906, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1904, No. 240, on verdict for plaintiff in case of William F. Weber v. City of Harrisburg.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kunkel, J.
    At the trial it appeared that on March 10,1904, in the morning, plaintiff was injured by falling over an iron cable stretched across a path along the river front in the city of Harrisburg. The cable was partly buried in the path. The evidence showed that the locality in question had long been used as a public park under the control of the city and also as a public landing place. The cable in question had been stretched across the path by boatmen to secure boats in the river. Other facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      JUrror assigned was refusal to give binding instructions for defendant.

      June 27, 1906 :

      Daniel S. Seitz, city solicitor, for appellant.
    The city was not liable: Mattimore v. Erie City, 144 Pa. 14; Guinter v. Williamsport, 208 Pa. 587: Martin v. Williamsport, 208 Pa. 590.

      John E. Fox, with him John R. Greyer, for appellee.
    The appellant is chargeable with negligence: McLaughlin v. City of Corry, 77 Pa. 109; Gschwend v. Millvale Borough, 159 Pa. 257; Chilton v. Carbondale, 160 Pa. 468; Wyman v. Philadelphia, 175 Pa. 117; Miller v. City of Bradford, 186 Pa. 164.
   Opinion by

Mk. Justice Potter,

The appellant here complains, not of the manner in which this case was submitted to the jury, but only of the fact that binding instructions in favor of the defendant were refused by the court below. In support of the proposition that no case entitling him to recover was made out for the plaintiff, it is urged that all the land along the river front in the vicinity where the accident occurred had been dedicated for use as a street and a landing place for boats, and that therefore the right of navigators to the use of the ground as a mooring place for vessels was at least equal to, if not paramount to the right of the public in the street as a highway. It may be true that the navigators have rights in the premises, but even if so, it is conceded that the spot in question has been used for years as a public park, and that it is traversed by a public path.

Under the charge of the court below to the jury, the verdict must be accepted as establishing the fact that the city of Harrisburg had assumed control and management of this place where the accident occurred. Being then in control, it was manifestly the duty of the city to see that the pathway was kept in a safe condition for the use of the public. The evidence upon the part of plaintiff was to the effect that a cable was stretched across the pathway in order to make fast to a tree some boats which were lying in the river, and that this cable constituted a dangerous obstruction to those who had occasion to use the path. All the more dangerous, because of its being partly buried beneath the surface for something like half the width of the pathway. There was some conflict in the testimony as to the exact location of the cable, and as to the degree of care exercised in covering it, and allowing it to remain in the position in which it was at the time of the accident to the plaintiff; but all these matters, which were in dispute, were for the determination of the jury. We can see nothing inconsistent in an attempt to retain for the benefit of the navigators a proper use of the river bank for. landing purposes, while at the same time provision was made for the use of the property by the public as a park or pleasure ground. In any event the city would be under the duty of seeing that the place was not dangerous to the public. Even if used as a wharf, or landing place, this responsibility would remain. Obviously, the better and safer way of affording facilities for mooring vessels to the bank, whenever the occasion arose, would be by means of posts or rings situated below the footway, or between it and the water line of the river. Certainly the plan which the boatmen were permitted to pursue, of placing a cable directly across the pathway, and leaving it partly exposed and liable to trip the passer-by, was one which the jury was justified in finding was negligent. There was also evidence of actual, notice to the city, or its representative, of the existence of this threatening danger. The questions of the negligence of the defendant and of the contributory negligence of the plaintiff were submitted to the jury under careful instructions, in a charge to which no exception whatever has been taken.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Trout v. Waynesburg, Greencastle & Mercersburg Turnpike Road, Appellant.

      Negligence — Turnpike road — Proximate cause — Evidence.
    In an action against a turnpike road company to recover damages for personal injuries it appeared that the plaintiff and another man were driving along a stretch of the defendant's road, on one side of which was a precipice which was not protected by a guard rail. On the opposite side was constructed a chute at right angles with the road. This chute was used in carrying wood down the mountain. As the buggy was opposite the chute a piece or several pieces of cordwood came down the chute with a loud noise. One of these pieces either struck one of the horses, or struck immediately in front of them. The horses dashed or sprang towards the precipice. The wheels on the right-hand side of the buggy went over the unprotected edge of the precipice. The buggy tilted or slanted at a considerable angle in the direction of the precipice. The plaintiff, a very heavy man, instantly threw himself over towards the left against his companion, forcing the latter out of the buggy. The plaintiff was later found by his companion lying unconscious near the middle of the road forty or fifty feet away from the place where the companion had fallen. It also appeared that the wheels of the buggy .were over the edge of the road for only a distance of three feet before they recovered the roadway. There was no evidence to show at what point plaintiff fell from the buggy. Held, that under the evidence the defendant company was not liable for the injuries sustained.
    Argued May 22, 1906.
    Appeal, No. 4, May T., 1906, by defendant, from judgment of C. P. Fulton Co., June T., 1899, No. 57, on verdict for plaintiff in case of N. C. Trout and C. N. Trout, Executors of William F. Trout, deceased, substituted plaintiffs for the deceased, v. The President, Managers and Company of the Waynesburg, Greencastle & Mercersburg Turnpike Company.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Swope, P. J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,600. Defendant appealed.

      Error assigned, amongst others, was refusal of binding instructions for defendant.
    D. Watson Rowe, with him J. Nelson Sipes and O. C. Bowers, for appellant.
    The turnpike company is responsible only for the safe condition of its roadway within its proper limits ; and is not liable even for defective conditions of road which did not contribute in any way to an accident or injury caused by another: Schaeffer v. Jackson Twp., 150 Pa. 145 ; Dixon v. Butler Twp., 4 Pa. Superior Ct. 333, 340; Haines v. Barclay, 181 Pa. 521.
    The want of a guard rail was not the proximate and responsible cause of the injury; and it would be speculative in the extreme to attempt to differentiate in view of the facts and circumstances of this case, between the extent of the injury which Dr. Trout did receive and that which he probably would have received if the guard rail had been erected along the declivity opposite the wood chute, and the jury could not be permitted to speculate,as to whether the injury would have been greater or less if a proper guard rail had been placed there, and therefore the absence of a guard rail at the point mentioned is wholly immaterial: Elliott v. Allegheny County Light Co., 204 Pa. 568.
    June 27, 1906:

      Sharpe Sp Elder, with them W. Seotb Alexander, for appellees.
    . — The case was for the jury: Born v. Plank Road Co., 101 Pa. 334; Burrell Township v. Uncapher, 117 Pa. 353 ; Kitchen v. Union Township, 171 Pa. 145; Plymouth Township v. Graver, 125 Pa. 24.
   Opinion by

Mr. Justice Stewart,

However negligent the defendant may have been in the maintenance of its roadway, its negligence in this regard can avail plaintiff only as it is shown to have been the proximate cause of the accident from which the injuries complained of resulted. This practically eliminates from consideration the circumstance that on the side of the road close by where the accident happened, there was an accumulation of wood, deposited there from a chute on the mountain. Doctor Trout’s injuries resulted primarily from the frightening of the horses he was driving ; this is conceded. It is not pretended that the wood occasioned the fright, therefore it is not an element in the case. For present purposes we adopt the facts contained in appellees’ history of the case. “ Just as they (Dr. Trout and Wissner, who was in the buggy with him) were passing around the wood, and were opposite the mouth of the chute, a piece or several pieces of cord wood came down the chute with a loud noise. One of these pieces of wood either struck the left-side horse, or struck immediately in front of him. The horses dashed or sprang towards the precipice. The wheels on the right-hand side went over the unprotected edge of the wall. ' The buggy tilted or slanted at a considerable angle in the direction of the precipice. Dr. Trout, a very heavy man, instantly threw himself over towards the left against Wissner, forcing Wissner out of the buggy. Dr. Trout was found by Wissner, lying unconscious near the middle of the road, forty or fifty feet away from the place where Wissner had fallen.” There was evidence in support of each fact contained in the above statement; one fact however, important to consider and to.which we refer later on, is omitted. The cause of the fright, on plaintiff’s own showing, was either the noise made by the timber in coming down the chute, or the striking of several pieces of timber upon the opposite side of the road from the chute, against one of the horses or in their immediate front. If it was the noise, it will hardly be contended that this was a matter for which the defendant could be held accountable. This feature of the case calls for no discussion; the defendant was not responsible for the noise, and had neither the right nor the power to suppress it; the chute was not on its land, and its operation, with the noise as a necessary incident, was as legitimate as the use of defendant’s road with its noise. If it was the latter cause, the casting of one or more pieces of timber over and upon the only side of the road open and unobstructed, and striking the horses or in front of them, it is quite as difficult to see how liability could attach to the defendant in such case ; it was not the act of the defendant; if it was a negligent act, the party operating the chute would be properly chargeable with its consequences, but this negligence cannot be imputed to a third party except some privity be shown. It is urged that defendant, knowing that in the operation of the chute on the abutting owner’s land, there was danger of an occasional piece of wood being thrown upon the opposite side of the road, owed a duty to the traveling public to erect a barrier somewhere on th,e highway to protect travelers from just such accidents as here occurred. To this we cannot agree. It is carrying the doctrine of legal duty beyond any limit it has yet reached. One is required to use, employ and maintain his own property in such a way that it shall not injure another, and this duty rests upon all alike; but there is no rule of law requiring the individual to so secure and maintain his property that trespassers, in their unlawful use of the same, may not inflict injury upon others. Any such rule would not only be unreasonable, but wholly impracticable.

This brings us to the final question — the primary cause of the accident being the fright of the horses, for which defendant was not responsible — was there an intervening, self-operating cause for which defendant was' responsible and of which negligence may be affirmed ? There is the fact that the outer wheels pf the buggy were carried over the unprotected edge of the road as the result of the horses’ fright. Assume that this could not have occurred had there been a guard rail at that side of the roadway, how does the evidence connect the circumstance that the wheels went over the edge of the road, with the final accident from which the injuries resulted, so as to make it the proximate cause ? An important fact not heretofore alluded to, and one necessary to a proper understanding of the case on this point, should here be mentioned: the wheels were over the edge of the road for only a distance of about three feet before they recovered the roadway. This is testified to by a witness for the plaintiffs, Mr. Little, and his testimony on the subject stands alone and is uncontradicted.

Were this an action by Wissner, who at this point was thrown from the buggy by Dr. Trout’s effort to avoid being carried down the precipice, it might be argued with much reason, that the absence of the guard rail at this place was the immediate proximate cause of any injury he was shown to have sustained in his fall. Had the guard rail been there, the wheels would not have gone over the edge, and the effort that threw him from the buggy would not have been necessary and would not have occurred. With like reason and with equal force it could be so argued with respect to Dr. Trout, if there had been any evidence that would have warranted the jury in finding that he sustained his injuries at this point of time and place. In such case the injury would be traceable directly to the absence of the guard rail as the efficient cause. But no one saw him fall from the buggy; he alone knew when and where it occurred. When Wissner found him he was lying in the middle of the road at least forty feet above the place where the wheels were over the edge; the buggy was found some distance beyond uninjured and intact. Under such circumstance how can his accident be referred to the passing of the wheels over the edge of the road? How could such circumstance have contributed to the accident ? The appearance of the injured man and the condition of his clothing might afford a basis for conjecture that he had been dragged some distance after his fall; but more than conjecture, even though it be not unreasonable, is required as a basis for recovery. The burden in such cases is always on the plaintiff to show the causal connection between the accident and the negligence alleged. This may be done by showing facts and circumstances from which the connection may be inferred by process of rational deduction, but never by speculation. Admitting that the evidence warranted an inference that the injured man had been dragged, what is there to warrant the further inference that would have to be supplied somehow before liability could attach to the defendant, that he had been dragged from the place where the wheels passed beyond the edge of the road ? Except as he fell from the buggy at that point, in consequence of this particular circumstance of the wheels'being off the road where a guard rail would have prevented such an occurrence, the accident cannot be attributed to the negligence alleged. When the buggy regained the roadway uninjured, whatever peril Dr. Trout had encountered because of the absence of the guard rail, had been safely passed. To the frightening of the horses as both the primary and proximate cause, this unfortunate accident must be referred. The evidence justifies no other conclusion.

Since for this defendant was not liable, there was nothing to submit to the jury, and the defendant’s fourth and fifth points asking for binding instructions should have been affirmed.

The assignments of error based on their objection are sustained, and the judgment is reversed.


author: Per. Curiam,

text:
    Commonwealth ex rel. v. State Bank of Pittsburg.

      Banks and banking — Bills of exchange — Separation of funds.

    Where a creditor draws upon a debtor and sends the draft for collection to a bank in which the debtor is a depositor, and the bank with the depositor’s consent issues a draft to the creditor on a bank in another city, and charges the amount of the draft against the depositor’s account, and it appears that before such charge was made the money was remitted to pay the draft, the creditor cannot claim, after the failure of the first bank, that the money sent to the second bank was so separated from the general funds of the first bank, that it should be applied to the payment of his draft.
    Argued May 23, 1906.
    Appeal, No. 5, May T., 1906, by Corning & Company, from order of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 23, dismissing exceptions to auditor’s report in case of Commonwealth ex rel. v. State Bank of Pittsburg.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    Khnkel, P. J., filed an opinion of which the portion applicable to this appeal was as follows :
    The New York drafts, upon which claim was made for preferential payment and in behalf of which exceptions have been filed, are drafts drawn by the State Bank upon its correspondent, the Hanover National Bank of New York, in favor of the claimants to whom they were issued in payment of drafts which had been sent to the State Bank for collection. The circumstances under which the drafts were issued appear from the auditors’ report and from the testimony taken before them to be as follows: The claimants drew their drafts upon their debtor, one Letzelter, and sent them to the State Bank for collection. Letzelter was a depositor in the State Bank, which with his consent charged them against his account. The bank then issued the drafts in question to the claimants. The auditors have found “ that money to meet the drafts issued by the State Bank on the Hanover National Bank was forwarded to New York from time to time as drafts were drawn by the cashier of the State Bank,” and it also appears that at the time the drafts were issued there was sufficient money in the Hanover National Bank to the credit of the State Bank to meet them. After the failure of the State Bank the receiver stopped payment upon the drafts and withdrew the money from the Hanover National Bank.
    The claimants’ position is that the drafts are entitled to be first paid out of the fund which was deposited in the Hanover National Bank, because in that fund are to be found the moneys which the State Bank collected as their agent.
    It is clear that when Letzelter’s account was charged with the drafts which were drawn against it there was no fund created distinct from the general funds of the bank.
    It is contended, however, that inasmuch as money was deposited in the Hanover National Bank to pay the drafts at the time they were drawn, that that was such an appropriation, or setting apart, by the State Bank out of its general funds with which the collections were mingled as identified the money thus deposited as the money collected for the claimant. This contention assumes, so far as the drafts charged against the depositors’ accounts are concerned, that the charge was made before the money was sent to the Hanover National Bank, while the contrary appears from the testimony. The teller of the bank testifies : “We made them good before we charged them up.” If the money was sent to the Hanover National Bank before the accounts were charged, it could not be said to be the money collected, for until the depositor’s accounts were charged the collection was not in fact made, and that part of the general funds of the State Bank sent to the Hanover National Bank was-not taken from the depositors. We cannot say,, therefore, that the moneys in the Hanover National Bank have been identified as the moneys collected for the holder of the drafts whose original drafts were charged to the depositor’s accounts. Nor are we prepared to say that the sending of moneys to the Hanover National Bank to pay any of the drafts is an identification of the moneys collected by the State Bank for the claimants. It is true that the moneys were intended by the State Bank to be used in the payments of the amounts collected for the claimants, and in place of the moneys collected, but the circumstances fall short of identifying them as the moneys which the bank held as their agent. Unless identified, it is manifest the moneys cannot be successfully claimed by them. It is needless to refer to the authorities which announce the doctrine with respect to tracing a trust fund. But it may be observed that in Freiberg v. Stoddard, 161 Pa. 259, the depositor’s account was charged with the amount of the draft drawn upon him and the bank’s draft upon another bank issued to the drawer; nevertheless no preference was allowed, although, in that case it was evident from the transaction itself that the moneys drawn upon were intended to be a substitute for the moneys collected.
    We are of the opinion that the learned auditors reached the right conclusion in the disposition they made of these claims.

      Error assigned was the order of the court.

      E. W. Smith, of Reed, Smith, Shaw & Beal, with him James M. Lamherton, for appellant.
    If the State Bank collected the drafts drawn by Corning & Company upon Letzelter, whether by charging them to' his account or by receiving the money in whole or in part, it was impressed with a trust: State v. Bank of Commerce, 61 Neb. 181 (85 N. W. Repr. 48); People v. City Bank, 96 N. Y. 82; Importers & Traders’ Nat. Bank v. Peters, 128 N. Y. 272 (25 N.E. Repr. 319) ; Spokane County v. First Nat. Bank of Spokane, 68 Fed. Repr. 979 ; People v. Bank of Dansville, 39 Hun, 188 ; Knatchbull v. Hallett, L. R. 13 Ch. Div. 696; Van Alen v. American National Bank, 52 N. Y. 1; Peak v. Ellicott, 30 Kan. 156 (1 Pac. Repr. 499) ; McLeod v. Evans, 66 Wis. 401 (28 N. W. Repr. 173, 214); Nurse v. Satterlee, 81 Iowa, 491 (46 N. W. Repr. 1102) ; Continental Nat. Bank v. Weems, 69 Tex. 489 (6 S. W. Repr. 802). If the assets of the state bank were increased by deposits by Letzelter to meet the drafts drawn on him, to that extent Corning & Company can recover, and this whether there was a separation or not: Frelinghuysen v. Nugent, 36 Fed. Repr. 229 ; Metropolitan Nat. Bank v. Campbell Commission Co., 77 Fed. Repr. 705; Philadelphia Nat. Bank v. Dowd, 38 Fed. Repr. 172.
    If the State Bank took from its general fund and deposited in the Hanover bank any money, not necessarily the identical Letzelter money, and issued the drafts to Corning & Company, this was a sufficient separation or iudentifieation to give Corning & Company the right to hold the money in the Hanover bank.
    That such a fund does not need to correspond exactly with the amount of the drafts, we think has been decided by the courts of this state: Lebanon Trust & Safe Dep. Bank’s Assigned Estate, 166 Pa. 622.

      June 27, 1906:
    The case of Jordan & Porter, 10 W. N. O. 37, is exactly in point.

      F. C. McGirr, of Marron & McGirr, for appellee.
    This case is ruled by Freiberg v. Stoddard, 161 Pa. 259.
   Per. Curiam,

The judgment is affirmed on that part of the opinion of the court below which applies to this claim.