text:
    Good, Appellant, v. Queens Run Fire Brick Company.

      Equity — Laches—Nuisance—Construction of siding on street.

    Where an industrial corporation lays a private railroad siding on a street in a residential neighborhood of a city with the municipal consent, but without the consent of an abutting landowner, and such owner makes no objection and files no bill to restrain the nuisance, but permits the operation of the siding for ten years when an additional track is laid, and the plant of the company increased at a great expense, and no objection is made to this for an additional five years, when the owner files a bill, the owner will be deemed to have been guilty of laches, his bill will be dismissed and he will be left to whatever remedy he may have at law.
    Argued March 16, 1909.
    Appeal, No. 72, Jan. T., 1909, by plaintiffs, from decree of C. P. Clinton Co., Jan. T., 1906, No. 2, dismissing bill in equity in case of Kate A. Good et al. v. the Queens Run Fire Brick Company and the Pennsylvania Railroad Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Hall, P. J., filed the following opinion:
    The plaintiffs’ bill in this case was filed November 11, 1905. The allegations contained in the bill which they have endeavored to sustain by the testimony are briefly as follows:
    Kate A. Good has been, since the year 1876, the owner in fee of two certain lots of ground situate on Water street, in the city of Lock Haven, upon which she resided, together with her husband and family, in a large three-story brick dwelling house which was erected thereon at the time of the purchase of said lots in 1876. There was also a brick stable erected on the premises at that time. The dwelling house was remodeled, enlarged and furnished in modern style with suitable furniture in the year 1900, at which time the plaintiffs built another stable on another lot in the rear of those on which the dwelling house is located. The dwelling house is situated in the most beautiful and attractive part of the city and until the occurrences complained of was a very desirable location for residential purposes. The family consists of herself, her husband and four children, all adults. They keep horses and carriages for their convenience, pleasure and business.
    Water street, on the northerly side of the plaintiffs’ property, is a public highway, extending on its northerly side to the bank of the west branch of the Susquehanna river, which is also a public highway. The street is now about fifty feet in width.
    About the year 1887 the Queens Run Fire Brick Company, a corporation, one of the above-named defendants, erected a large fire brick plant between Water street and the river, extending to a point about 500 feet east of the plaintiffs’ residence and without permission of the plaintiffs it entered upon Water street in front of their residence and cut down certain trees which were not only ornamental but useful in protecting the bank from floods and the premises of the plaintiffs from ice and drift. It constructed a railroad of standard guage, with cross ties eight feet long and with ballast and rails upon Water street along the entire front of the plaintiffs’ premises, eastwardly therefrom to the brick company’s plant and westwardly therefrom to the Philadelphia. & Erie Railroad, thereby appropriating part of the street fronting on the plaintiffs’ property, preventing the use thereof by the plaintiffs and by the public and diverting it from the purpose for which it was intended. The Pennsylvania Railroad Company, a public corporation, commenced running its locomotives and cars on the said railroad for the purpose of hauling coal to, and the manufactured product from, the said fire brick plant, and has been running its trains on said railroad until the present time.
    The fire brick company has a large tract of land on the north side of the Susquehanna river, from which it obtains its fire clay used in its manufactory, and for some time after the construction of this plant it transported this clay from its mines to the river by cars and then took it by boats on the waters of said river to its said plant, but about the year 1900 it ceased to transport its clay in this manner and since that time has been transporting the same over the Philadelphia & Erie Railroad to its intersection with the brick company’s railroad above mentioned, and then over the railroad of the brick company to its plant. At this time the brick company built an additional track at the eastern end of its railroad which was elevated about eighteen or twenty feet above the surface of the ground on trestles in order that the clay might be carried by cars over this trestle into the works. This elevation made a very heavy grade a short distance east of plaintiffs’ premises. An average of about one train a day would run over the brick company’s railroad up until the time when it began transporting its clay in this manner, but the transportation of the clay made additional trains necessary, and since the year 1900 the said plant has been very much enlarged and its capacity greatly increased, so that the number of trains per day has increased and they are much heavier than they formerly were, and in order to handle the cars up the steep grade at the eastern end of said railroad to the top of the trestle, more power is required than formerly, and in the effort made in front of the plaintiffs’ premises to gain the necessary momentum to run up the incline, great noise is made and great volumes of smoke are emitted from the engines. There is also a great deal of switching and shoving of trains in front of the plaintiffs’ premises. The brick company’s railroad is situated twenty-three feet from the curb in front of plaintiffs’ front door and within nineteen and one-half feet of the curb line at the western end of their lots, thus rendering the street difficult of passage and making it impossible to turn vehicles in the street. The running of the trains frightens the horses of the plaintiffs and those of visitors at their house, so that it is dangerous and frequently impossible to drive in front of the house. Horses have been frightened and broken loose and ran away there so that the tying of horses in front of the plaitiffs’ premises has necessarily been abandoned.

      The large and heavy trains running with the power necessary to enable them to arise to and upon the said trestle, the shoving of engines and switching of cars shake the ground and jar the plaintiffs’ house to such an extent that windows have been broken, foundation walls impaired, plastering and brickwork cracked, pictures and bric-a-brac shaken from the walls and clocks so affected and injured that they will not keep time.
    The smoke, dust and soot from the locomotives enter the plaintiffs’ house and damage its walls and ceilings, furniture, clothing and carpets therein, and when the wind is from the east no clothes can be hung out to dry without being soiled by the soot from the locomotives. The operation of the railroad renders the plaintiffs’ property less desirable as a residence,increases the danger to the occupants of the house and to the property, greatly to the injury of the plaintiffs, and their property is consequently impaired and depreciated in value.
    The plaintiffs ask the court by reason of these injuries complained of, first, to enjoin the Pennsylvania Railroad Company from running its locomotives and trains upon the railroad of the said brick company; second, to compel the Queens Run Fire-Brick Company to remove its said railroad and to restore Water street to the same condition, so far as is possible, that it was in before the construction of said railroad. As to their third request, the allegations upon which it is founded have been abandoned, as we understand it, as no testimony was taken to support them. It may, therefore, be disregarded. Fourth, that the defendants be compelled to make compensation to the plaintiffs for all damages suffered by reason of the matters complained of, and fifth, for general relief.
    To this bill the Queens Run Fire Brick Company filed its answer setting up, among other things, that at the time of the erection of their plant in 1887, and the construction of their railroad on Water street, the plaintiffs’ residence consisted of a very ordinary dwelling house and small stable on the same lot, both being of an unpretentious character; that the plaintiffs at that time made no objection or protest against the erection and establishment of the plant and the railroad connected therewith, but with full knowledge of the same, stood by and permitted it to invest large sums of money in its said plant and acquiesced therein for a long time; that the plaintiffs enlarged and remodeled their residence in the year 1900 at which time the brick plant was in active operation, under conditions not as favorable for surrounding properties as they exist at present; that it has invested $250,000 in its plant and employs continuously about 250 laborers, its monthly pay roll amounting to $9,000; that its manufacture of brick is conducted on the most approved plan and by the best of modern machinery and methods. In 1903 it remodeled its plant, placing all machinery on heavy concrete foundations and otherwise went to a large expense to make the operation of the machinery noiseless and free from vibration, which result was obtained; that at this time also the plaintiffs were fully aware that the plant was being remodeled in such increased capacity, but stood by and permitted large sums of money to be expended for this purpose; that only one train goes into the plant in the morning between 7 and 8 o’clock and remains there on an average about fifteen minutes, and another train goes into the plant during the afternoon and remains a period of about thirty minutes, and that these two trains are the only ones going in. and out of the plant each day; that the change in the method of transportation of their clay from water to rail was rendered necessary by lack of water in the river on which to float their boats and fiats, and that the change from water to rail is at an increased expense. That they are the largest industry in the city of Lock Haven and pay taxes to the city and county amounting to over $1,400 a year; that all of their employees live in Lock Haven, or its immediate vicinity, and that if the prayer of the bill is granted it will be necessary for it to close down its plant and to remove the same from the city of Lock Haven, thereby entailing irreparable loss and damage, not only to the brick company, but to the city, resulting in the loss of employment to a large number of men, and greatly depreciating the general business of the town and the value of the property therein.
    The Pennsylvania Railroad Company also filed an answer denying that it was interested in or had anything to do with the locating and constructing of the said railroad, or that it was ever interested in either as owner, lessee or otherwise or ever controlled or had the right to control the maintaining and operating thereof, but so far as it knows said railroad was constructed, maintained and operated by the fire brick company separately and solely for the uses and purposes of its lawful business; that it only ran its locomotives and cars over said railroad as requested and required to do so by the said fire brick company to transport its material and manufactured product to and from its plant.
    It appears from the testimony that at the time the brick company built its railroad upon Water street it had been granted the right to do so by an ordinance of the city council, and that permission had also been granted to it by all the property owners on Water street, with the exception of the plaintiffs in this case, who had refused to sign permission for this purpose. Beyond that fact it does not appear that the plaintiffs ever made any other complaint until they brought this suit, which was instituted eighteen years after the building of the railroad and five years after the construction of the incline, which the testimony shows to have been the occasion of most of the damages which have been proved. The facts alleged in the answer filed by the Queens Run Fire Brick Company and by the Pennsylvania Railroad Company, to which allusion is made above, are substantially sustained by the evidence, and conceding for the purpose of argument that all of the allegations in the plaintiffs’ bill, to which reference is above made, have also been proven, the first question to be decided is whether, under such a state of facts, a proper case has been made out for the intervention of a court of equity. It may be conceded that the city of Lock Haven could not grant to the Queens Run Fire Brick Company a legal right to build and operate its siding on Water street, and that if the plaintiffs had promptly made application to this court for an injunction to prevent such occupation of the street, in front of their premises without their permission, it would have been granted.
    Have their laches been such as to estop them from making such an application? The common-law maxim that wherever there is a right there is a remedy has never been adopted by courts of equity. It is a well-recognized principle that one may sleep upon his right until he lose it, and courts of equity will withhold their relief from those who have delayed the assertion of their claims for an unreasonable length of time: Power’s Appeal, 125 Pa. 175; Willard v. Wood, 164 U. S. 502 (17 Sup. Ct. Repr. 176); Lansdale v. Smith, 106 U. S. 391 (1 Sup. Ct. Repr. 350); Sullivan v. Railroad Company, 94 U. S. 806; Speidel v. Henrici, 120 U. S. 377 (7 Sup. Ct. Repr. 610); Badger v. Badger, 69 U. S. 87. The defense of laches may be enforced in proper cases wherein the facts appearing call for it, whether they arise upon the bill and pleadings or upon the whole case as presented by the evidence. The court will often take notice of it, even though the objection is not made by the parties: Beach’s Modern Eq. Prac., sec. 258. In the case of Bruner v. Finley, 187 Pa. 389, the court held that a delay of fifteen years on the part of the plaintiff in setting up a claim is gross laches, which properly defeats any right of recovery. In the case of Becker v. Railway Co., 188 Pa. 484; s. c., 195 Pa. 502, where a landowner promptly filed a bill in equity against a railway company to prevent the construction of its railway upon the turnpike road abutting on his property, but made no motion for a preliminary injunction until the road had been built and was in full operation, and took no further steps in the case for two years and a half and it appeared that the injury to the complainant was slight and might be readily compensated in damages, it was held that injunction would not be awarded because of the great inconvenience to the public and the serious loss it would inflict upon the company. To the same effect are the cases of Heilman v. Ry. Co., 180 Pa. 627; s. c., 175 Pa. 188, and Hinnershitz v. Traction Co., 206 Pa. 91. The latter case decides that where a railroad is projected over a public road without legal authority and the abutting property owners had notice of it and failed to make prompt objection thereto they are charged with constructive consent and equity will not interpose for their relief after a portion of the track has been constructed, the plaintiffs being barred by their laches from relief in equity. In the case at bar the counsel for the defendant contends that the municipality had the right to authorize the building of the siding under the authority of Chicago Dock & Canal Company v. Garrity, 115 Ill. 155 (3 N. E. Repr. 448); People v. Blocki, 203 Ill. 363 (67 N. E. Repr. 809), and Clarke v. Blackmar, 47 N. Y. 150. While we cannot regard the reasoning in these cases as sound, it is not necessary to decide this question under our view of the present case. The cases cited above from our own appellate courts to our mind conclusively control the present case. It has never been held that an injunction is a matter of right. It will not issue when upon a broad consideration of the situation of all parties in interest, good conscience does not require it, nor where the benefit to the complainant is entirely disproportionate to the injury to the respondent. In Dilworth’s Appeal, 91 Pa. 247, the court said: “It often becomes a grave question whether so great an injury would not be done to the community by enjoining the business that the complaining party should be left to his remedy at law.” An injunction will not be awarded where the benefit to the complainant is entirely disproportionate to the injury to the respondent, even though the complainant may have a right to damages at law, Becker v. Ry. Co., 188 Pa. 484; nor where it will inflict greater injury than it will prevent. In such case the injured party will be left to his remedy at law: Robb v. Carnegie, 145 Pa. 324. Assuming in the present case that the defendant occupied the street in front of the plaintiffs’ premises without legal authority and that by reason thereof the plaintiffs have suffered all of the damages alleged in their pleadings or shown by their testimony, we are of the opinion that the damages are of such character that they may be fully compensated in an action at law and that the delay of the plaintiffs in bringing this action convicts them of such laches as to defeat their right to apply for relief in equity. As was said in the case of Orne v. Fridenberg, 143 Pa. 487, “A Chancellor does not interfere by way of mandatory injunction even though the injury be clearly established, when there has been long continued delay in asserting the right, and the remedy exists at law.”

      The bill is, therefore, dismissed at the costs of the plaintiffs.

      Error assigned was decree dismissing the bill.

      W. C. Kress, for appellants. —
    In this case the road was constructed by a private corporation, without the right of eminent domain, in utter disregard of plaintiffs’ rights and protests, and with full knowledge of the illegality of their acts. In such cases laches never bars a property owner from asserting his rights: Hoyt v. Hoyt, 2 Pa. C. C. Rep. 152; Westhaeffer v. Ry. Co., 163 Pa. 54; Fidelity Ins., etc., Co. v. Pass. Ry. Co., 6 Pa. Dist. Rep. 737.
    The doctrine that where one stands by and sees another laying out money on property to which he, himself, has some claim or title, and does not give notice of it, he is equitably estopped from afterwards setting up such claim or title, does not apply to an act or encroachment on land, the title to which is equally well known or equally open to the notice of both parties: Schaidt v. Blaul, 5 Cent. Repr. 580; Thompson’s Appeal, 126 Pa. 367, 374.
    The rule that a chancellor will refuse to enjoin an act when a greater injury will result from granting than from refusing the injunction has no application where the act complained of is, in itself, as well as in its incidents, tortuous: Walters v. McElroy, 151 Pa. 549; Bigler v. Penna. Canal Co., 177 Pa. 28.
    The substantial injury to a right of property will be redressed in .equity where there is no adequate remedy at law, without regard to the inconvenience or damage the wrongdoer may sustain: Penna. Lead Co.’s Appeal, 96 Pa. 116; Price v. Grantz, 118 Pa. 402; Evans v. Fertilizing Co., 160 Pa. 209.
    The fact that a public corporation operated the road at the request of a private corporation gave neither of them any rights in the street: Pittsburg v. R. R. Co., 205 Pa. 13; City of Chester v. B. & O. R. R. Co., 217 Pa. 402.
    • A manufacturing company cannot acquire by a lease from a railroad the right of eminent domain vested in the latter, so as to be enabled to construct and operate a railroad upon the streets of a borough, even with the consent of the municipal authorities: Barker v. Hartman Steel Co., 129 Pa. 551. See also Attorney General v. Lombard and South St. Pass. Ry. Co., 10 Phila. 352. See Commonwealth v. Railroad Co., 27 Pa. 339; Penna. R. R. Co.’s App., 115 Pa. 514; Pittsburg, etc. R. R, Co. v. Railroad Co., 81* Pa. 104; 1 Redf. on Railways (3d ed.), 588; Commissioners v. Long, 1 Pars. 143; Smith v. Cummings, 2 Pars. 92; Bispham’s Equity (2d ed.), 439; Story’s Eq. Juris. (12th ed.), 924; High on Injunctions, sec. 2, pp. 500, 521; Canny v. Greene, 137 Mass. 64; Bunnell’s App., 69 Pa. 59; Commonwealth v. Rush, 14 Pa. 186.

      H. T. Hall and Seth T. McCormick, for appellee,
    were not heard, but in their printed brief said: The right to lay sidings to private establishments and to take the necessary land for that purpose is clearly within the constitutional power of the legislature to confer, because the public interest is thereby sub-served,'by reason of the increased facilities afforded for developing the resources of the state, and promoting the general wealth and prosperity of the community: Getz’s Appeal, 10 W. N. C. 453; Potts v. P. & R. Ry. Co., 21 Montg. 142; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155 (3 N. E. Repr. 448); People ex rel. v. Blocki, 203 Ill. 363 (67 N. E. Repr. 809); Clarke v. Blackmar, 47 N. Y. 150.
    A railroad on a public street if a nuisance at all is of necessity a public nuisance; and a bill in equity for an injunction against a public nuisance cannot be sustained by a private party, unless he shows a particular injury distinct from that which he suffers in common with the rest of the public. This we contend the appellants failed to show in this case: Bigelow v. Bridge Co., 14 Conn. 565; Black v. R. R. Co., 58 Pa. 249; Larimer, etc., Ry. Co. v. Ry. Co., 137 Pa. 533; Sparhawk v. Ry. Co., 54 Pa. 401; Rhymer v. Fretz, 206 Pa. 230; Scholl v. Emerich, 36 Pa. Superior Ct. 404; North R. R. Co. v. Traction Co., 205 Pa. 579; Struthers v. D. W. & P. Ry. Co., 87 Pa. 282; Jones v. R. R. Co., 151 Pa. 30.
    The manufacturing plant of the appellee, with its railroad siding and other appurtenances, not being a nuisance per se, a court of equity will not interfere until the appellants have established their rights by an action at law and the verdict of a jury: Huckenstein’s App., 70 Pa. 102; McCaffrey’s App., 105 Pa. 253; Richards’s App., 57 Pa. 105; Grey v. R. R. Co., 1 Grant, 412; Coe v. Cotton & Woolen Mfg. Co., 37 N. H. 254.
    April 19, 1909:
    An injunction is not of right, and will not be issued, when upon a broad consideration of the situation.of all parties in interest, good conscience does not require it, nor where the benefit to the complainant is entirely disproportionate to the injury to the respondent: Dilworth’s App., 91 Pa. 247; Becker v. Ry. Co., 188 Pa. 484; Messner v. Ry. Co., 13 Pa. Superior Ct. 429; Richards’s App., 57 Pa. 105; Wier’s App., 74 Pa. 230; Farver v. Foundry Co,, 24 Pa. Superior Ct. 579; Harvey v. Coal Co., 201 Pa. 63; Price v. Grantz, 118 Pa. 402; Rhodes v. Dunbar, 57 Pa. 274.
    The -complainants, with full knowledge of all the circumstances, having stood by and without objection permitted the expenditure by the appellee of large sums of money in both the original erection and subsequent enlargement and improvement of its plant, have been guilty of such laches in the bringing of the bill in this case as would bar their right to ask of a court of‘equity a decree in their favor: Becker v. Ry. Co., 188 Pa. 484; Heilman v. Ry. Co., 180 Pa. 627; Hinnershitz v. Traction Co., 206 Pa. 91; Orne v. Fridenberg, 143 Pa. 487; Fidelity Ins., etc., Co.’s Appeal, 115 Pa. 157; Golmer v. Illenberger, 52 Pitts L. J. 196; Brown v. Howell, 8 North, 181; Powers’s App., 125 Pa. 175; Bruner v. Finley, 187 Pa. 389; Willard v. Wood, 164 U. S. 502 (17 Sup. Ct. Repr. 176); Sullivan v. R. R. Co., 94 U. S. 806; Lansdale v. Smith, 106 U. S. 391 (1 Sup. Ct. Repr. 350); Badger v. Badger, 69 U. S. 72; Speidel v. Henrici, 120 U. S. 377 (7 Sup. Ct. Repr. 610).

      T. C. Hippie, for Pennsylvania Railroad Company, appellee.
   Opinion by

Mr. Justice Mestrezat,

The exhaustive opinion filed by the learned judge of the court below sufficiently vindicates his conclusions both of fact and of law. He has correctly found the facts from the evidence, and his conclusions of law are amply supported by the numerous authorities he cites. The decree, therefore, may well be affirmed on his opinion.

In concluding the opinion, the court correctly says: “Assuming in the present case that the defendant occupied the street in front of the plaintiffs’ premises without legal authority and that by reason thereof the plaintiffs have suffered all of the damages alleged in their pleadings or shown by their testimony, we are of the opinion that the damages are of such character that they may be fully compensated in an action at law, and that the delay of the plaintiffs in bringing this action convicts them of such laches as to defeat their right to apply for relief in equity.” The facts of the case clearly warranted the chancellor in holding that the laches of the plaintiffs barred a recovery in equity, and remanded them to an action at law for any injury they may have sustained by the conduct of the defendants. The fire brick company erected its plant and began operation in 1887, and the plant has been in continuous operation ever since. The railroad siding was constructed in 1890 and has been used continuously since by the Pennsylvania Railroad Company for hauling coal to, and the manufactured product from, the fire brick plant, and since 1900, has also been used in transporting fire clay to the plant. The capacity of the brick plant is about 40,000 bricks per day, and 200 men are employed to operate it. In 1900 the fire brick company constructed an additional track on its own land at the eastern end of the railroad, which was elevated eighteen or twenty feet above the surface of the ground so that the fire clay used in the plant might be carried by the cars into the works. In 1903 the company expended $60,000 in enlarging the plant, and remodeled it so as to make the operation of the machinery noiseless and free from vibration. The plaintiffs knew that the plant was being remodeled with an increased capacity but made no objection and did not attempt to restrain the operation of the railroad in front of their premises. So far as the evidence discloses, the plaintiffs did not object to the defendant laying its railroad in front of their premises or to the construction of the additional track until it filed this bill in November, 1905. It is true, that when the city council and the other property owners on Water street granted permission to the fire brick company to build its railroad on the street, the plaintiffs refused to give their consent, but they did not object or make any attempt whatever, prior to filing this bill, to restrain the construction of the road. They saw the road built in front of their premises in. 1890; they saw it operated for fifteen years; they saw the additional track constructed in 1900; they saw the fire brick company's plant remodeled at great expense and knew it could only be operated by use of the railroad; and these several acts were all done with the knowledge of the plaintiffs and, so far as the record discloses, without a single word of objection by them. In addition to these facts, the plaintiffs in 1900 remodeled and enlarged their dwelling house and finished it in modern style without making any objection to the construction or operation of the fire brick company's railroad.

As pointed out in the opinion of the learned trial judge, the plaintiffs are clearly guilty of laches under all the authorities. The facts of the case clearly warranted the judge in dismissing the bill on this ground. The counsel for the plaintiffs concede that “the plaintiffs here knew their rights and stood upon them from the first.'' There was no deception or fraud practiced by the defendant, and the plaintiffs were cognizant of every move made by the fire brick company in the construction of the railroad in front of their premises. They knew all the facts and, knowing their rights as they admit, it was their duty to act promptly. There is no sufficient excuse given in the bill for the failure of the plaintiffs to assert their rights at an earlier date than 1905 when they filed this bill. Neither was there anything shown upon the trial of the cause that justified the plaintiffs in delaying their objection to the construction of the railroad until they instituted these proceedings. So far as the record discloses, there is no justification whatever for the conduct of the plaintiffs in permitting, without objection, the construction of the road, its subsequent operation for so many years, and the large expenditure of money on a plant which could only be available by use of the railroad. A party guilty of such conduct cannot secure relief in a court of equity. Vigilantibus, non dormientibus, servit lex. The plaintiffs have slept upon their rights which concededly they knew, and a chancellor will not aid them to the great prejudice of another party whose equities are at least equal to those of the plaintiffs. As said in Powers’s Appeal, 125 Pa. 175,186, the maxim of the common law, that wherever there is a right there is a remedy for its infraction has never been adopted by courts of equity. Hence, he who sleeps upon his rights may awake to find that his remedy for their enforcement in a court of equity has vanished.

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


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Cummiskey’s Estate.

      Decedents’ estates — Claims for boarding and nursing.

    1. Where a woman of considerable estate who was in the habit of paying her bills regularly, boarded for several years with a former domestic servant, and was nursed by the latter, a claim presented by the latter against the estate of the former for boarding and nursing for three years prior to the death of decedent, will not be allowed, where there is no evidence to warrant a finding that the claimant had not received compensation.' In such a case there must be sufficient evidence to overcome the presumption that claimant was paid at stated periods.
    2. The wages for domestic service are presumed to be paid at stated periods, and when a claim for such service is presented against a decedent’s estate, extending over any great length of time, the burden is upon the claimant to rebut the presumption. It, of course, is a presumption of fact which may be rebutted by competent evidence, but until satisfactory evidence is produced the presumption prevails, and the claim must be disallowed. The same rule is applicable in cases of boarding and nursing under the circumstances disclosed in this case.
    Argued March 24, 1909.
    Appeal, No. 342, Jan. T., 1908, by Maurice E. Cummiskey, Administrator, from decree of O. C. Phila. Co. Jan. T., 1908, No. 509, sustaining exceptions to adjudication in Estate of Laura E. Cummiskey, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in sustaining exceptions to adjudication.

      John O. Johnson, with him Edmund Randall and James A. Flaherty, for appellant. —
    This claim is not based upon a contract, but upon a quantum meruit. It needs the citation of no authorities to show with what disfavor our courts view such claims extending over a period of several years and during the lifetime of the decedent, a woman of ample means, quick to ask for bills for services rendered and prompt in paying them. Such claims arise periodically, weekly or monthly, and the law presumes they were paid in the lifetime of the decedent as they became due: Monaghan’s Est., 13 Pa. Dist. Rep. 694; Carpenter v. Hays, 153 Pa. 432.

      Michael J. Ryan, for appellee. —
    The evidence in this case, which is absolutely uncontradicted, shows that the claim is a just one and that it was properly allowed by the orphans’ court. To have disallowed the claim would have been an injustice to a meritorious claimant who had rendered full service and given full value for what she claims, and that this was the feeling of the court below is shown by the fact that the exceptions were sustained unanimously: Bugh’s Est., 9 Pa. Dist. Rep. 276; Smith v. Milligan, 43 Pa. 107; Curry v. Curry, 114 Pa. 367; Kidder v. Boom Co., 24 Pa. 193.
    It is immaterial whether appellee expected to be paid by decedent during her lifetime or whether she expected the compensation to take the form of a legacy: Cottrell’s Appeal, 4 W. N. C. 237; Harper’s Est., 196 Pa. 137; Thompson v. Stevens, 71 Pa. 161; Roberts v. Swift, 1 Yeates, 209; Harrington v. Hickman, 148 Pa. 401.
    An examination of the Pennsylvania cases shows that the presumption of periodical payments of servants’ wages is applied only to the case of domestic or menial servants: Ranninger’s App., 118 Pa. 20; Winings v. Hearst, 17 Pa. Superior Ct. 314; Lewis’s Est., 156 Pa. 337; Bugh’s Est., 9 Pa. Dist. Rep. 276; Schrader v. Beatty, 206 Pa. 184; Ewing’s Est., 18 Lancaster Law Rev. 73.
    April 19, 1909:
    And even were there any presumption of payment in the case at bar, it is at best only a presumption of fact, which is rebutted by the decedent’s declarations of obligation and intention to pay: Harrington v. Hickman, 148 Pa. 401.
    And it is not necessary that decedent’s declarations or admissions should have been communicated to the claimant: Gordner v. Heffley, 49 Pa. 163; Sourwine v. Claypool, 138 Pa. 126; Gerz v. Demarra, 162 Pa. 530; Rhoades’s Est., 13 Pa. Dist. Rep. 287; Beam’s Est., 21 Lancaster Law Rev. 254; Campbell’s Est., 49 Pitts. Leg. Journ. 409.
   Opinion by

Mr. Justice Mestrezat,

This is a claim by Mrs. Sarah J. McEvoy on a quantum meruit for the board and nursing of Miss Laura E. Cummiskey, the decedent, for 164 weeks, from October 9, 1903, to November 24, 1906, at the rate of $10.00 a week. The claimant admits a credit of $42.00 paid her in 1906, leaving a balance of $1,598 payable out of the decedent’s estate.

Laura E. Cummiskey died on November 24, 1906, intestate, unmarried, without issue and leaving certain next of kin to survive her. It appeared from the evidence that the decedent had lived at the home of Mrs. McEvoy for about three years immediately prior to her death. She had her room and took her meals with Mrs. McEvoy’s family, which consisted of her husband and herself. When the decedent was sick Mrs. Mc-Evoy gave her the attention required by an ailing person. There was no contract or agreement between the decedent and Mrs. McEvoy by which the latter was to be paid for board and nursing. One witness testified that on a certain occasion the decedent had said to him: “ I will give it [the place she lived on] to Mrs. McEvoy for what she has done for me, and that will hardly pay her.” Another witness testified that she knew and called on Miss Cummiskey; that the latter told her she expected to end her days with Mrs. McEvoy; “she never spoke of paying, she always spoke in a roundabout way of rewarding Sarah [Mrs. McEvoy] ultimately.”

The decedent left a personal estate of $13,000, and only a small debt due the attending physician. She owned certain real estate, and received an income on mortgages aggregating $8,000 which formed part of her estate.

The claimant was formerly Miss McGinnis and for many years prior to her marriage was the servant of the decedent. After she was married, she and her husband removed to the suburbs of West Philadelphia where the boarding and nursing for which this claim is presented were furnished the decedent. Mr. McEvoy kept a small cigar store on the first floor of his residence.

The auditing judge disallowed the claim, holding that there was no competent evidence as to the value of the board or any evidence to rebut the presumption that it was paid at periodic intervals. The judge also held that the time for which the services for nursing was claimed was not accurately fixed and that the declarations of the decedent, testified to by the witnesses above referred to, were not sufficiently connected with the claim for board and nursing to warrant the conclusion that they were meant to cover a debt incurred.

The court in banc reversed the auditing judge and allowed the claim, holding that there was sufficient evidence to rebut the presumption of payment. The administrator has taken this appeal.

It is a well-established rule that the wages for domestic service are presumed to be paid at stated periods, and that when a claim for such service is presented against a decedent’s estate, extending over any great length Of time, the burden is upon the claimant to rebut the presumption. It, of course, is a presumption of fact which may be rebutted by competent evidence, but until satisfactory evidence is produced the presumption prevails and the claim must be disallowed. The same rule is applicable in cases of boarding and nursing under circumstances such as are disclosed in this case. It is the habit and usage of people to pay their board bills as well as for services for nursing at stated periods. This is so well understood in this country that, as in the case of servants’ wages, a presumption arises that they are periodically paid. Especially does this rule obtain where a claim for boarding and nursing for years is presented against the estate of a decedent. The protection of the estates of the dead requires its rigid enforcement. The custom of paying for such service periodically being so well known, it is no hardship upon the party who renders the service but presents no claim for it until after the lapse of years and after the party to whom the service is rendered is dead to require the claimant to produce satisfactory evidence that the usage or custom was not followed and that the claim has not been paid.

Conceding that the decedent lived with Mrs. McEvoy during the time alleged, there was no evidence to warrant the court-in finding that the claimant had not received compensation. It is not pretended that there was any express contract imposing an obligation upon Miss Cummiskey to pay for the services rendered. The declarations of the decedent established no such contract nor do they show an intention to pay for the boarding and nursing. As suggested by the auditing judge, they show nothing beyond a grateful appreciation of kindness shown by Mrs. McEvoy to the decedent. The simple anticipation by the claimant of receiving a legacy without more' is not sufficient to impose liability for such services rendered a decedent. There is no evidence that the decedent ever promised Mrs. McEvoy to compensate her by a legacy.

So far as the evidence discloses there was no demand made by Mrs. McEvoy of Miss Cummiskey for payment for any services rendered. For more than three years, as alleged by the claimant, these services were continuously rendered. No suggestion comes from Miss Cummiskey that she intended to pay and no demand is made by the claimant. In the absence of evidence of these facts, there is a presumption that the services were paid for at stated periods customary in the neighborhood. This presumption is strengthened when it is recalled that the decedent asked for and paid her physician’s bills promptly; that she had ample means which were available to pay for the services as they were rendered; and that the apparent financial condition of the claimant and her husband, as disclosed by the evidence, was not such as to justify the belief that payment for the services would have been permitted to extend beyond the customary period for settling such claims. There is no direct evidence that Miss Cummiskey did not pay for the services rendered, nor are there any facts disclosed by the testimony which would warrant the finding that the usual rule of periodic payments was not observed in this case. The decedent had available means to meet obligations of this character as they matured, and the financial condition of the claimant does not show that payment would not have been accepted or that it was not needed at the times compensation for such services are usually and ordinarily paid. Why a party of ample means should for more than three years board with and be nursed by a former servant with limited means without paying or having any demand made upon her for payment of a sum aggregating 1520 per year due for such service seems incredible; and before such claim is awarded out of a decedent’s estate satisfactory evidence of nonpayment should be produced. We find no such evidence in this case, and consequently we are required to sustain the auditing judge in disallowing Mrs. McEvoy’s claim.

The assignments of error are sustained, and the decree of the orphans’ court is reversed.


text:
    Rankin v. Rankin, Appellant.

      Equity — Master’s findings of fact — Reversal of master — Duty of court to file opinion — Practice, C. P.

    1. When a trial court reverses a master or an auditor it is the duty of the court to file an opinion and point out wherein the officer has erred, and that the error is so manifest as to warrant the setting aside of the officer's conclusions. The presumptions are all in favor of the correctness of the findings of the master or auditor and until they are shown by the trial court to be erroneous they must be sustained. <

      April 19, 1909:
    2. Where the court of common pleas sitting as a court of equity reverses a master without filing an opinion, the Supreme Court on appeal will remand the case to the court below so that it may file an opinion and assign its reasons for reversing the master.
    Argued March 24, 1909.
    Appeals, Nos. 36 and 37, Jan. T., 1909, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1902, No. 2,568, on bill in equity in case of Andrew Rankin v. Charles C. Rankin and Albert Foerderer.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Record remanded.
    Bill in equity for reconveyance of real estate. Before Sulzberger, P. J.

      Error assigned was decree reversing the master and setting aside his findings of fact and conclusions of law.

      Joseph M. Smith, with him John L. Burns, for appellants.
    No printed brief nor argument for appellee.
   Opinion by

Mr. Justice Mestrezat,

This is a bill in equity for the reconveyance of real estate, and the litigation has been pending since January 1, 1903. We regret that we cannot now determine the case and finally adjudicate the rights of the parties. We are compelled to remand it for further proceedings in the court below. After the cause was at issue on the bill and answer, a master was appointed who heard the testimony and made a report. He found the facts, stated his conclusions of law upon the facts found by him, and recommended a decree that the bill be dismissed. Exceptions were filed by the plaintiff and defendants, the court dismissed the defendants’ exceptions, sustained the plaintiff’s exceptions, and entered a decree granting the relief prayed for in the bill. No opinion was filed by the court •nor any reasons given for its action in reversing the master and setting aside his findings of fact and conclusions of law. This summary and irregular disposition of the case requires us to send the-cause back to the common pleas that the court may perform its duty by filing an opinion and indicating its reasons for the decree it entered.

It is a rule, universally recognized by bench and bar alike in this state, that the findings of fact by a master or an auditor will not be reversed where the evidence is such as to require its submission to a jury , unless it affirmatively appear that the officer was guilty of misconduct or that there is clear mistake or fraud. Such finding is entitled to the weight of a verdict of a jury, and clear error must be pointed out before the court will disturb it. This is a general rule and is constantly applied and enforced. The reason for the conclusiveness of such finding is that the master or auditor sees and hears the witnesses and has an opportunity to observe their manner and appearance on the witness stand. He is, therefore, better able to judge of the weight to be given the testimony and of the credibility of the witnesses who testify in the cause than the court, which must rely solely upon the printed evidence. Hence, when a trial court reverses a master or an auditor it is the duty of the court to file an opinion and point out wherein the officér has erred, and that the error is so manifest as to warrant the setting aside of the officer’s conclusions. The presumptions are all in favor of the correctness of the findings of the master or auditor, and until they are shown by the trial court to be erroneous they must be sustained. This is the rule supported alike by reason and precedent. Where a master has heard the evidence and found the facts from the evidence the court is not justified in arbitrarily setting aside the finding without assigning reasons for its action. The parties have a right to be fully heard and to have their cause judicially and not arbitrarily determined, and when the court reverses the findings of fact by the master, justice to the parties as well as to the master, if not to the court itself, requires the latter to point out the error which sustains its ruling. Any other course is a reflection upon the master and denies the parties what they have a right to demand of the court. This is the rule generally observed by the common pleas throughout the commonwealth, yet we regret to say that occasionally it has been disregarded and this court has been compelled in these instances to enforce its observance. This is done by remanding the cause after an appeal has been taken, or it can be done before the appeal has been taken by an application to the appellate court by the parties to compel the trial court to perform its duty in this respect. This latter course would save time to the litigants and procure an earlier decision of the cause.

Pittsburg’s Appeal, 70 Pa. 142, was a proceeding to distribute the proceeds of a sheriff’s sale. The auditor held that the sale divested a municipal lien, and the court reversed without giving any reason for its action. Chief Justice Thompson delivering the opinion says (p. 146): “It is only for clear error in fact or law that the finding of an auditor is to be set aside. Decisions to this effect are so numerous that I need not cite them. It would have greatly aided us, if the learned judge of the district court had accompanied his judgment with his reasons. Taking the case as we have it, however, we think this another reason for reversing the decree of distribution in the case.” Griffin’s Appeal, 109 Pa. 150, was a bill in equity. The case was referred to a master whose finding of fact was reversed by the court without an opinion. In reversing the court below, it was said by this court (p. 154): “The court below reversed the Master’s finding upon one exception without any opinion, without any review of the testimony and without showing that the Master’s finding of fact was incorrect. It is to be regretted in this and in all cases where the court reverses the Master upon findings of fact without reviewing the testimony, that no opinion is filed pointing out the errors of the Master in his treatment of the facts. Such an opinion, besides being required by a just regard to the rights of the parties and to the character and dignity of the proceeding, greatly simplifies the work to be performed by this court, by directing our attention to the very points of difference between the Master and the court in the conclusions respectively reached by them. In this case the court below simply said they could not agree with the Master and therefore sustained the fourth exception.”

Scheppers’s Appeal, 125 Pa. 598, was the distribution of the proceeds of a sale made on a mortgage. The auditor appointed to make the distribution found the facts from conflicting evidence and recommended a decree logically proper as based upon his findings. The common pleas reversed the auditor. This court in reversing the common pleas said (p. 605): “The learned judge below has reversed him (the auditor) in a brief opinion without showing, or attempting to show, that his findings of fact are erroneous. We do not feel at liberty to dispose of them in this summary manner.” Morgan’s Appeal, 125 Pa. 561, was a bill in equity to abate a nuisance. A master was appointed whose findings of fact and law were set aside by a pro forma decree entered by the court without an opinion. This court in remanding the case requiring the trial court to place on record its reasons for reversing the master said (p. 563): “The findings of the master have been reversed without an opinion or a line to indicate upon what grounds or for what reason the reversal has taken place. To reverse a master’s findings without assigning any reason, is simply an act of arbitrary power, and practically leaves his findings in full force. . . . It is the duty of the (trial) court to give us all the assistance it can. . . . These remarks apply with peculiar' force to equity cases, where, as here, there is a master’s report, and a large amount of testimony. Every such case is entitled to the careful consideration of the court of common pleas in which it is heard, and we should have the views of the learned judge, who decided it, upon the facts and the law. This is useful and desirable in all cases; it is absolutely essential where the master is reversed by the court. We have time and again sent cases back where a pro forma decree has been entered, and as this is the equivalent of a' pro forma decree it must take the same course.” Scheppers’s Appeal and Morgan’s Appeal were followed and approved in Williams v. Concord Cong. Church, 193 Pa. 120.

Furth v. Stahl, 205 Pa. 439, was a case of distribution in the common pleas by an auditor appointed by the court. Exceptions to the auditor’s report were sustained by the court without an opinion. The present chief justice in reversing the court below said (p. 441): “It is to be regretted that the court did not file an opinion, or give reasons in any form for its decree. Where the decision of an auditor, referee or other officer acting in a judicial capacity is overruled by the court, justice to the court itself as well as to the officer and the parties, suggests that the reasons should be stated. In the present case to a careful and elaborate report made by the auditor, the court’s own officer, exceptions which went merely to the result without indicating the grounds were sustained. No reasons were given by the court and no sufficient ones are advanced by the appellee or perceived by this court.”

It is now ordered and directed that the record in this case be remanded that the court below may file an opinion and assign its reasons for reversing the master.


author: Me. Justice Mestrezat,

text:
    Black, Appellant, v. Baltimore & Ohio Railway Company.

      Negligence — Death—Damages—Actions—Acts oj April 15,1851, P. L. 669, and April 26, 1855, P. L. 309.
    Where a person is injured by the negligence of another and brings an action for the injuries sustained, but dies before the suit is concluded, his children have no right to maintain an independent action of their own under sec. 19 of the Act of April 15, 1851, P. L. 669. In such a case the pending suit must be prosecuted by the personal representatives of the deceased. It is not open for the children to elect to bring another action, and to disregard the pending suit or discontinue it.
    Argued March 24, 1909.
    Appeal, No. 77, Jan. T., 1909, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 3,081, for defendant non obstante veredicto in case of Alexander Black et al. v. Baltimore & Ohio Railway Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiffs’ father. Before Ralston, J.

      The opinion of the Supreme Court states the case.
    The jury returned a verdict for plaintiffs for $1,925. . Subsequently the court entered judgment for defendant non obstante veredicto on the ground that the plaintiffs had no right to discontinue the suit pending at their father’s death, and institute a new action for his death.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      S. Koons, for appellants. —
    The cases show clearly the difference in the two kinds of actions, viz.: under the act of 1851 on the one hand, and under the act of 1855 on the other. Under the act of 1851 recovery is for the wrong done to the injured person. Under the act of 1855, recovery is for the wrong done to the parties enumerated therein. Their right of recovery is not by succession: R. R. Co. v. Zebe, 33 Pa. 318; Deni v. R. R. Co., 181 Pa. 525; Maiorano v. B. & O. R. R. Co., 216 Pa. 402; Haughey v. Pittsburg Rys. Co., 210 Pa. 363.
    The acts of 1851 and 1855 being in derogation of the common law must be strictly construed: Gardner v. Kiehl, 182 Pa. 194; Becker v. Street Ry. Co., 25 Pa. Superior Ct. 367; Fitzpatrick v. Riley, 163 Pa. 65.
    There - is nothing in the statutes that compels the personal representatives of the decedent to continue his suit; or that prevents the parties enumerated in the act of 1855 from prosecuting their suit for their peculiar injuries where the personal representatives fail to press their case to a final recovery either by amicable settlement or by verdict and judgment.
    The only reasonable conclusion is that the legislature by the language of sec. 19, act of 1851, intended only to prevent a double recovery, or more than one adjudication of defendant’s .alleged default: McCafferty v. R. R. Co., 193 Pa. 339.

      William B. Linn, for appellee. —
    The question raised has been substantially decided in two cases growing out of the same accident: Birch v. Ry. Co., 165 Pa. 339, and Taylor’s Estate, 179 Pa. 254. See also Hill v. R. R. Co., 178 Pa. 223; McCafferty v. R. R. Co., 193 Pa. 339; Edwards v. Gimbel, 202 Pa. 30.
    April 19, 1909:
   Opinion by

Me. Justice Mestrezat,

This is an action instituted by the children of John Black, deceased, to recover damages for his death. Black was injured by one of defendant company's trains on December 27, 1906, at the Black Diamond Coal Yard in the city of Philadelphia, and died on January 7, 1907. This suit was brought January 16,1907. On the trial of the cause it appeared by the evidence that Black had brought suit against the defendant company on January 2, 1907, to recover damages for the injuries he sustained in the same accident for which the plaintiffs now seek to recover. In the present action the jury returned a verdict in favor of the plaintiffs. Subsequently, on motion of counsel, the court entered a judgment for the defendant non obstante veredicto.

The above statement of facts shows that the plaintiffs cannot recover in this action, and that the learned court below was clearly right in entering judgment in favor of the defendant. The right to recover here depends entirely upon statutory authority. The Act of April 26, 1855, P. L. 309, designates the parties entitled to recover in case of death resulting from negligence and provides that they shall take the damages recovered in the same proportion as they would take the personal estate of the deceased in case of intestacy. The fund recovered is not liable to the creditors of the party for whose death the action is brought. The right, however, to bring the action was not conferred by the act of 1855, but by the Act of April 15, 1851, P. L. 669. The eighteenth section of that act reversed the rule of the common law, provided for survivor-ship, and where the action had been brought by the injured party during his life permitted the substitution of his personal representatives in case of his death prior to the final disposition of the cause. This section of the act of 1851 is applicable to the facts of the case, at bar. After the accident, Black brought suit for the injuries which he had sustained. Five days thereafter he died, and, while the action was pending, the present suit was brought by the children of the deceased. This was a mistake. Instead of the children bringing an action, the personal representatives of Black should have been substituted as plaintiffs and they should have prosecuted the case to final judgment and satisfaction. This is the mode of procedure pointed out by the statute, and, hence, must be observed if a recovery is to be had for Black’s death.

The present action cannot be maintained under section nineteen of the act of 1851 as supplemented by the act of 1855. That section of the act of 1851 created a new cause of action and conferred the right of recovery in such actions upon the widow of the deceased, or if there was no widow, the personal representatives were authorized to bring the action. The act of 1855 changes the parties for whose benefit the action is brought, and gives to children the right to sue for the death of a parent. Before, however, an action can be brought under sec. 19 of the act of 1851 two facts must exist: (a) the death must have been occasioned by unlawful violence or negligence, and (b) there must have been no suit for damages brought by the party injured during his life. The existence of both of these facts is a condition precedent to the bringing of an action by children for the death of a parent. If either is absent no suit will lie. Here, as we have seen, Black himself brought an action for the injuries he sustained by the accident and this fact deprives the plaintiffs, the children of the deceased, of the right to maintain an action under this section of the act of 1851. The statute is so plain there can be no doubt as to its interpretation. Argument is unnecessary to show what the statute clearly declares, that an action for death caused by negligence can only be brought where no suit for damages has been instituted by the party injured during his life. As the plaintiffs seek to enforce a statutory right, they can only recover by complying strictly with the statute which creates the cause of action. Black having brought an action for the injuries he sustained, no recovery can be had for his death, except by his personal representatives who are authorized by the statute to “prosecute the suit to final judgment and satisfaction.” There is no discretion in the matter. It was not open for the children to elect to bring another action and to disregard the former suit of discontinue it. They had no authority to do either.

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


author: Mb,. Justice Stewart,

text:
    Keller’s Estate.

      Will — Accounting—Executors and administrators — Exemption from filing account.

    Where a testator gives his entire estate to his wife for life and after her death to his son, and appoints the widow and son executors, with a direction that they shall not be required to file any account, the representatives of the widow after the death of the son surviving the widow, cannot in the absence of fraud, or any allegation thereof, compel the representatives of the son to file an account on the ground that the son had converted the assets, and had not paid the income to his. mother during her life. In such a case if there is any right of recovery, the remedy is at law for the recovery of a debt.
    Argued Feb. 22, 1909.
    Appeal, No. 221, Jan. T., 1908, by Marshall Keller, from decree of O. C. Lackawanna Co., No. 543, of 1905, sustaining demurrer to petition for an account in Estate of Sydenham Keller.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for citation to file an account. Before Sando, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in sustaining the demurrer to the petition.

      A. A. Vosburg, with him B. Fenton Tinkham, for appellant.
    —The presumption of law is, that the assets of the original estate are in the hands of the administrators of the deceased executor, and the court in which the latter is accountable has ample authority to compel the filing of an account, both under the Act of June 16,1836, P. L. 784, and by virtue of its general powers: Bickley’s Est., 30 Pa. C. C. Rep. 382; Shoch’s Est., 11W.N.C.288.
    April 26,1909:
    The courts have been exceedingly liberal in the matter of compelling executors to file accounts. They will not stop to inquire into disputed claims, nor the validity of claims, but will order an account where a prima facie right is established: Smith v. Black, 9 Pa. 308; Disston’s Est., 14 Phila. 310; Clinton’s Est., 8 Pa. Dist. Rep. 661; Seeger’s Est., 6 W. N. C. 369; Kern’s Est., 11 Lancaster, 15.
    Jurisdiction of the court cannot be ousted by the direction of testator. A direction in a will, that the executors are to define its provisions and that their decision shall be final and conclusive, will not take away the jurisdiction of the court: Reilly’s Est., 200 Pa. 288; Friend’s Est., 209 Pa. 442.
    Even distributees are not bound by such a direction where fraud, mismanagement or bad faith is alleged: Young’s Est., 18 W. N. C. 95.

      James Gardner Sanderson and John P. Kelly, for appellee.
    —The presumption of law in this case, which the petition does not overcome, is that H. S. Keller fully accounted to Louisa Keller in his lifetime: Eavenson’s App., 84 Pa. 172; Knapp v. Griffin, 140 Pa. 604.
    The respondents are relieved from filing an account under the terms of the will of Sydenham Keller: Maurer v. Bowman, 169 Ill. 586 (48 N. E. Repr. 823); Randall v. Randall, 135 Ill. 398 (25 N. E. Repr. 780); Young’s Est., 18 W. N. C. 95.
   Opinion by

Mb,. Justice Stewart,

' The testator, Sydenham Keller, gave his entire 'estate to his widow for life, and at her death to his son, Ploratio Seymour Keller, and appointed these two beneficiaries executors of his will. They survived the testator several years, but both are now dead; the son having survived the widow a few- days only. No inventory of the estate or account was ever filed by either-. The executor of the widow now asks that the executors of the son be required to file an account, alleging that the son had been the acting executor, and as such had received and converted all the assets of the estate. A demurrer filed to the petition was sustained in the court below, and the appeal is from that decree. The will contains this provision: “Neither of my said executors shall be required to enter security, and no inventory nor appraisement nor account of any estate shall be filed by them.” Why shall not this direction be observed? A testator has quite as much right to direct how his estate shall be administered as he has to direct its distribution. He must be careful in either case not to interfere with the rights of creditors; but within this limitation his will is law. The parties represented by this petitioner are not creditors, but volunteers. The rights are not the same. Volunteers have only such rights as the will gives them; they take under and pursuant to the will, and as against their demands the will must prevail. The law will not be slow to interfere where the confidence a testator has reposed in his executors is being abused; and whenever a volunteer who has an interest which gives him standing, complains that executors are guilty of fraud in their office and asks that they be required to account, the court will so order if ground be shown, notwithstanding the will exempts them from the duty of accounting. The interference in such case defeats no provision in the will, for the exemption was intended to apply to faithful, not unfaithful, executors, and the only end to be accomplished by the interference is to secure honest administration of the estate in accordance with the testator’s wishes. In the present case fraud is not alleged. The only averments in the petition are that the son was the acting executor and as such he had received the assets and converted them; that for some of them he had realized a specified amount, and to the best of petitioner’s knowledge and belief none of the income therefrom had ever been paid to the said Louisa Keller (widow) in her lifetime, and that it is now due her estate. There is not a suggestion of fraud in any of these averments. The son had as much right to the possession of the assets as the widow; if he took them all into possession, presumably it was with her consent- and approval, since she acquiesced; if he failed to pay over to her the income, he was her debtor to that extent, and an action at law can be maintained for the recovery of the debt. It is not pretended that he fraudulently withheld anything from the widow. It is manifest that the only purpose here is to put over upon the son’s representatives the burden of showing affirmatively that the son in his lifetime paid to the widow the income of the estate. It is quite as manifest we think that it was to prevent proceedings of this kind by persons not beneficiaries under the will that the testator provided that neither of his executors should be required to account. He knew that the exemption would not prevail against the demands of creditors, and he was not providing against them. Excepting creditors no one could have asked for an accounting during the lifetime of the widow and son, for the estate in its entirety belonged to them; but on death of either, the heirs at law or legatees of the one dying would have an interest which in the absence of this exempting provision would give a right to demand an accounting. It was this event, sure to happen sooner or later, that testator had in contemplation when he directed that no account should be filed. No other purpose can be suggested. The citation asked for was properly refused.

The appeal is dismissed at the costs of the appellant.


author: Mr. Justice Stewart,

text:
    Commonwealth v. Snyder, Appellant.

      Criminal law — Murder—Insanity—Epilepsy.
    1. On the trial of an indictment for murder a mere offer to prove that the prisoner prior to the killing had been subject to attacks of epilepsy is properly overruled where there is no evidence produced or offered to show that the prisoner was in fact insane. The law derives no immediate presumption of insanity from the fact of epilepsy, but leaves the insanity to be proved as any other defense not by secondary evidence as proof of epilepsy would be, but by evidence establishing the direct fact; nor is evidence of epilepsy admissible even when the offer is accompanied by an offer to prove intoxication.
    2, It may be a physiological fact that one effect of epilepsy is to produce a state of mind easily excited by provocation, and that this state of mind is intensified by intoxication to a degree that would be unexpected in one not epileptic from the same amount of drink; but except as the epilepsy can be shown to have resulted in an unsoundness, which by itself would excuse an act, it cannot become a factor in determining the question of guilt or innocence. The epileptic who is not shown to be insane, can no more escape liability for his acts done while intoxicated, than can one not so affected.

      Criminal law — Confessions—Murder.
    3. On the trial of an indictment for murder the prisoner's pastor accompanied by the officer who made the arrest visited the prisoner, and the clergyman said to the prisoner that it would be better for him to tell the truth, adding that he, the speaker, could do more for him if he told the truth. Before the defendant had an opportunity to express himself at all, the officer interfered with the remark, “Reverend, as a detective, I wish you would not make a remark of that kind. I may be a witness against him, and I can offer him no promise of any kind, and I hope you don't mention that again.” It was after being thus cautioned that the defendant made a confession. Held, that the confession was admissible in evidence.

      Criminal law — Murder—Points for charge.

    4. On the trial of an indictment for murder, points predicated on a killing as the result of a sudden impulse or impetuous temper, are properly refused where there is no evidence whatever that the killing was the result of sudden impulse.

      Criminal law — Murder—Intoxication.

      5. On the trial of an indictment for murder an offer to show that the prisoner was under the influence of liquor at the time of the killing, is properly overruled where there is no offer to show the degree of intoxication, or that the prisoner was so much intoxicated that his mind was incapable of forming a deliberate intent or premeditated design to kill and carry it out.
    6. Where the prisoner and several of his witnesses have testified to the number of drinks he had taken, and he himself had testified fully as to the extent of his intoxication, it is not reversible error to ask the prisoner when recalled to the stand as to the amount of liquor he had drunk during the evening of the occurrence.
    Argued March 1, 1909.
    Appeal, No. 44, Jan. T., 1909, by defendant, from judgment of O. & T. York Co., Jan. T., 1908, No. 19, on verdict of guilty of murder of the first degree in case of Commonwealth v. Henry Snyder.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Indictment for murder. Before Wanner, J.
    At the trial it appeared that the prisoner was charged with the murder of William Hoover on November 16, 1907. There was evidence that William Hoover and his brother, Kerwin Hoover, were found unconscious on the morning of November 17, 1907, on a public road in the village of Pleasureville. Both were shot in the head and both died without gaining consciousness. A number of offers of evidence were made tending to show that the prisoner had been subject to epileptic fits from his youth, and that on the night of the occurrence he had been with the Hoovers, and that he was intoxicated at the time.
    Other facts appear by the opinion of the Supreme Court. Verdict of guilty of murder of the first degree, upon which j udgment of sentence was passed.
    ' Errors assigned were various rulings on evidence and instructions.
    ' John A. Hoober and Allen C. Wiest, with them Paul O. Menges and J. W. Gitt, Jr., for appellant. —
    The offers all showed a state of irresponsibility which our law recognizes as destroying the criminality of an act because they subjugated and controlled the will and took away the freedom of moral action: Ortwein v. Com., 76 Pa. 414, 424, 425; Taylor v. Com., 109 Pa. 262; Brown v. Com., 78 Pa. 122.
    All matters alleged to prove insanity prior to the homicide are valuable as presumptive proof that the defendant was insane at the precise moment of the homicide: Com. v. Shurlock, 14 Legal Int. 33.
    The Supreme Court has repeatedly approved the admission of evidence prior to the homicide: Com. v. Gerade, 145 Pa. 289; Com. v. Preston, 188 Pa. 429; Com. v. Hillman, 189 Pa. 548; Com. v. Bezek, 168 Pa. 603; Com. v. Eckerd, 174 Pa. 137; Laros v. Com., 84 Pa. 200; McMeen v. Com., 114 Pa. 300; Hopkins v. Com., 50 Pa. 9; Sayres v. Com., 88 Pa. 291; Com. v. Buccieri, 153 Pa. 535; Gross v. State, 62 Md. 179.

      William L. Ammon, district attorney, with him Harvey A:
      Gross, assistant district attorney, for appellee. —
    April 26, 1909:
    The authorities are clear that mere proofs of epilepsy, even in a severe form, are not sufficient to establish such insanity as excuses crime: Laros v. Com., 84 Pa. 200; Com. v. Buccieri, 153 Pa. 535; Com. v. Gerade, 145 Pa. 289; Ortwein v. Com., 76 Pa. 414; Com. v. Mosler, 4 Pa. 264.
    Mere drunkenness does not avoid responsibility. It is the universal rule that voluntary intoxication is no justification or excuse for crime: Keenan v. Com., 44 Pa. 55; Com. v. Cleary, 148 Pa. 26; Com. v. Hart, 2 Brewster, 546; Com. v. McFall, 1 Addison, 255; Com. v. McGowan, 189 Pa. 641.
    A confession procured by artifice is not for that reason inadmissible unless the artifice was calculated to produce an untrue confession: Com. v. Goodwin, 186 Pa. 218.
   Opinion by

Mr. Justice Stewart,

Six of the assignments of error have been abandoned. Of those remaining, eight have regard to rulings of the court on offers of evidence which in purpose and effect were substantially the same. In each instance the offer was to show that the defendant in the early years of his life was subject to frequent attacks of convulsions or spasms, which for the time being rendered him unconscious; that after his twelfth year the attacks became less frequent, much milder in form, never attended with unconsciousness; that he is still subject to these attacks in modified form, and that he suffered one as recently as the day before the crime was committed with which he is charged; this, to be followed by medical expert opinion predicated on the facts proposed to be shown as to the character and frequency of these attacks, that they were epileptic seizures, and further that because of this infirmity, and the added circumstance, already appearing in the evidence, that defendant had been drinking during the afternoon and evening of the occurrence, if it was he who killed Hoover, he was at the time acting under an uncontrollable epileptic impulse during which it was impossible for him’ to distinguish right from wrong, and during which it was impossible for him to deliberate or consider the nature and consequence of his act. The offers as we have said were substantially the same; they differed only in matter of detail. The same purpose, however, was not stated in connection with each. At one time it was to show insanity by way of defense; at another a condition of mind which should operate to reduce the grade of the crime. The learned trial judge rejected them all, and in this we think he was entirely right. The offers associated and combined two mental conditions which need always to be clearly distinguished where the effort is to refer an illegal act to their joint influence, insanity and intoxication. The former excuses the act; the latter at most can only mitigate its criminality. The unsoundness that excuses must be so great as to control the will of the subject and deprive him of free moral action. When this mental condition has been shown, the defense is complete and absolute, and it helps nothing to show in addition that the unfortunate subject was intoxicated as well. When the unsoundness is not of the degree which exempts from legal liability, it helps nothing to show intoxication by way of excusing. It may be a physiological fact that one effect of epilepsy is to produce a state of mind easily excited by provocation, and that this state of mind is intensified by intoxication to a degree that would be unexpected in one not epileptic from the same amount of drink; but except as the epilepsy can be shown to have resulted in an unsoundness, which by itself would excuse an act, it cannot become a factor in determining the question of guilt or innocence. The epileptic who is not shown to be insane, can no more escape liability for his acts done while intoxicated, than can one not so affected. Were it otherwise, it would follow that in every case where intoxication is set up, a necessary inquiry would be the susceptibility of the party to intoxicating influence; and the question of guilt would be made to depend upon peculiarity of individual temperament as affected by drink. The law knows no such doctrine; it does not divide men into classes according to temperament or intellect, judging some more favorably than others, but it judges all alike. It follows that in ruling upon the offers which were made to show mental condition which would excuse, the court could have no regard to what was therein included as showing intoxication. No more could the expert witnesses in forming their opinion. And yet the offers without the expert opinions could have served no purpose whatever. The facts proposed to be shown were to be introduced for no other purpose than to lay the foundation for such testimony based upon the concurrence of disease and intoxication. Any such opinion based on one or the other of these alone would not be within the offer. If based on intoxication alone, it would be valueless, for that in law does not excuse; it would be but little better if based on the testimony as to defendant’s epilepsy, for the court would have been bound to hold that whatever the medical expert might say, the law derived no immediate presumption of insanity from the fact of epilepsy, but leaves the insanity to be proved as any other defense, not by secondary evidence, which at best this would be, but by evidence establishing the direct fact: Laros v. Com., 84 Pa. 200. In the case cited it was said with respect to similar offers of testimony: “They were all offers collateral or secondary to the proof of insanity, and were not admissible until direct evidence of the prisoner’s insanity had been given. A court is not bound to hear evidence of the insanity of a man’s relatives, or evidence of his proper instruction in morals and religion, or of the kind treatment of his relatives and friends, as grounds of a presumption of possible insanity, until some evidence has been given that the prisoner himself has shown signs of his own insanity. Now when these offers were made, no evidence of his own insanity had been given. That he had at long intervals before the week of the murder suffered spasms or fits of some kind affecting him bodily is all that had been proved, but no mental unsoundness has been shown. These offers were not renewed after evidence was given of an affection resembling epilepsy, and a possible epileptic insanity. Indeed, the evidence of even a possible epileptic insanity was so weak it would scarcely have been substantial error to reject the evidence a second time. It must not be forgotten that according to the evidence, or even according to common observation, epilepsy is not commonly 'followed by insanity, until after a long time from the first attack, and that the proof of epilepsy furnishes no immediate presumption of insanity.” The offers of evidence in the present case were intended to raise hypothetical questions. They were all defective, some in embracing too much, others too little. We have said that what was proposed to be proved on the score of insanity was purely secondary. The case stood thus on the evidence: The defendant, a young man who had passed his majority, was shown to have lived his entire life in the district in which he was born, and was generally acquainted throughout the community. Many of his neighbors and acquaintances had been called to testify as to his reputation for peaceableness. Not one was asked a question touching his sanity, and not a single irrational act or speech during the whole period of his life had been shown. The first and only suggestion of insanity came with the offers to show epileptic seizures to the extent indicated, and this not by physicians who had ever seen the defendant when under an attack or while recovering therefrom, but by parties without professional skill, who it is said would testify that the physician who attended the defendant when a child had pronounced the attacks epileptic in character. Not only was the evidence proposed secondary, and for that reason properly excluded, but it did not in any reasonable way tend to prove the fact alleged. These assignments of error are overruled.

The twelfth and thirteenth assignments complain of the admission of evidence showing certain confessions made by the defendant to his pastor Dr. Stump and others. The evidence was objected to on the ground that the confessions were made in consequence of inducement held out by Dr. Stump. It does not appear that any of the other witnesses who testified to confessions offered any inducement whatever to defendant to admit his guilt. To some of them the admissions were made days after the interview between the defendant and Dr. Stump; but it was contended that nevertheless it was not shown that the influence of the promise or inducement extended by the latter had ceased to operate. We are unable to see the force of the objection even in its application to the testimony of Dr, Stump. While what he said may have induced the defendant to break silence, it certainly was no inducement to the defendant to confess guilt by speaking untruthfully in regard to the fact. It was because of his office as pastor that Dr. Stump sought the first interview. When he called the second time it was at the solicitation of the defendant. What occurred at this interview was in the presence of the officer who had made the arrest. Dr. Stump repeated what he had said to the defendant in the first interview, that it would be better for him to tell the truth, adding that he, the witness, could do more for him if he told the truth. Before the defendant had opportunity to express himself at all, White, the officer present, interfered with the remark, “Reverend, as a detective I wish you would not make a remark of that kind. I may be a witness against Henry, and I can offer him no promise of any kind, and I hope you don’t mention that again.” It was after being thus cautioned that defendant made the declarations in the presence of Dr. Stump and White which were offered to be shown. Later on the same declarations were made to others. To apply the rule which excludes confession made under the influence of threat or promise to a case like this would be stretching it to a most unreasonable limit. If what was said by Dr. Stump can be regarded as a promise calculated to induce a confession, certainly whatever influence it could have had in this direction must have been entirely neutralized or avoided by what the officer said in reply. If Dr. Stump’s testimony was admissible, and we think it was, the testimony of the other witnesses as to the confessions of course stood clear of all possible objections.

The assignments fifteen and eighteen, inclusive, charge error in answers to points submitted. These points were predicated on a killing as the result of a sudden impulse or impetuous temper, and asked instructions that the guilt in such case would be less than murder in the first degree. There was nothing in the case calling for any such instructions, however correctly the law may have been expressed in the points. The defendant had denied the killing and all knowledge of it. There was no living witness, unless himself, to testify to the circumstances under which the killing was done. Consequently there was nothing in the evidence upon which a finding that the killing was the result of sudden impulse could rest. On the other hand, such circumstantial evidence as was produced in regard to the occurrence warranted an inference that the shooting was a deliberate act, wholly consistent with the specific intent to take life. These assignments are without merit.

The ninth and tenth assignments relate to rulings of the court on offers of evidence to show that if defendant did the killing he was at the time of the commission of the act intoxicated. Lester Kauffman, a young man who had been in defendant’s company during the afternoon and evening until within a very short time of the tragedy, having testified for the commonwealth was recalled by the defendant in turn, and it was proposed to ask him what the defendant’s condition was with respect to sobriety when he parted from him. The purpose as stated was to show defendant’s intoxicated condition to rebut presumption of deliberation and premeditation. The ruling rejecting the offer was as follows: “In the form in which the offer has been made merely to prove drunkenness, we regard it as inadmissible, and overrule the offer and seal an exception for the defendant. Drunkenness is no valid defense.” The offer being renewed it was again rejected under the following ruling: “We understand this to be simply an offer to show that the defendant was under the influence of liquor and without any information in it as to what the degree of his intoxication may have been, and with no offer to show by this or any other witness that he was so much intoxicated that his mind was incapable to form a deliberate intent or premeditate a design to kill and carry it out. In the form in which the offer is made we reject it.” These rulings were correct. Mere intoxication does not imply loss of power to form specific intent; and therefore the evidence here offered was irrelevant. Intoxication is a matter of degree; it may be so mild as to disturb normal mental action but slightly; again, it may be so deep that the subject is almost, if not entirely, without consciousness. Between these two extremes there are many degrees. The offer in this case discloses nothing as to the degree of the defendant’s intoxication. The ruling of the court was based on this fact, and the reason was so clearly stated that it cannot for an instance be supposed that the learned counsel for the defendant, who have shown such zeal in their client’s cause, would not have enlarged their offer to bring it within legal requirements if the evidence had been at hand to warrant it. As it stood it came far short, for, as we have said, mere intoxication without more is insufficient to overcome the presumption of deliberation and premeditation which arises in cases of this character.

We think the question asked of the defendant when recalled to the stand as to the amount of liquor he had drunk during the evening of the occurrence, was not objectionable, unless on the ground that it led to unnecessary repetition, and should therefore have been allowed. But the defendant could not have been prejudiced by its disallowance. He had already testified, as had several of his witnesses) as to the number of drinks he had taken; and he'himself had testified fully as to the extent of his intoxication. The answer to the question would therefore have elicited no fact not already appearing in evidence; but would have been merely supplemental to those already adduced and not contradicted. The remaining assignments suggest nothing that calls for discussion.

A review of the whole record leaves us convinced that the case stands clear of error; that the defendant had a fair trial in all respects, with every right accorded him that he was entitled to and that the jury was adequately and correctly instructed as to the law governing the case. The record exhibits nothing that calls for our interference with the result reached.

The judgment is affirmed; and it is ordered that the record be remitted to the court below that the judgment may be carried into execution according to law.