author: Mr. Justice Moschzisker,

text:
    Trout v. Philadelphia Electric Company, Appellant.

      Negligence — Electric light company — Live wire — Proximate cause.

    1. In an action against an electric light company to recover damages for the death of a boy thirteen years old resulting from his contact with an electric wire where the insulation had worn off, a verdict and judgment for the plaintiff cannot he sustained where the evidence shows that the wire in question was stretched upon poles and swinging at a distance of about four feet six inches from the outside edge of the cornice of a house, that the boy went up to the top of his father’s house through a trap door, and from there over the house tops to another roof some four doors distant, where he lay down on the tin cornice about one foot from the edge; that he threw a corncob tied to the end of a string over the electric wire and pulled it toward him in order to detach his kite which had been caught on the wire; and that when the wire came within reach he touched it with one hand and immediately received the shock which killed him.
    2. In such a case the proximate cause of the injury was not the failure of the defendant to repair the defective insulation, but it was the boy’s own independent intervening act in voluntarily getting the wire within his reach in a manner and under circumstances which could not reasonably have been foreseen. Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, distinguished.
    Argued Jan. 15, 1912.
    Appeal, No. 162, Jan. T., 1911, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1908, No. 6050, on verdict for plaintiff in case of Amos Trout and Martba Trout v. Philadelphia Electric Company.
    Before Briown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.

      Trespass to recover damages for the death of plaintiff’s son killed at 1315 Brandywine Street, Philadelphia, on August 14,1908. Before Carr, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,765.00. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      R. Stuart Smith, with him Charles E. Morgan, for appellant.
    Assuming that the defendant was negligent in failing to keep its wire properly insulated, such negligence was not the proximate cause of the accident. The proximate cause was the independent intervening act of the boy himself in voluntarily getting the wire within his reach in a manner and under circumstances not reasonably to have been foreseen: Oil City Bridge & Pet. Co. v. Jackson, 114 Pa. 321; Guilmartin v. Philadelphia, 201 Pa. 568; Elliott v. Allegheny Co. Light Co., 204 Pa. 568; Marsh v. Giles, 211 Pa. 17; Everett v. Citizens’ Gas and Electric Co., 228 Pa. 241; Carpenter v. Miller, 232 Pa. 362.
    Judgment should be entered for the defendant non obstante veredicto on the additional ground that the boy was a trespasser on the property of the defendant, and the latter owed him no positive duty of protection: Thompson v. Balt. & Ohio R. R. Co., 218 Pa. 444; Rumovicz v. Scranton Electric Co., 44 Pa. Superior. Ct. 582.

      William T. Connor, with him John R. K. Scott, for appellees.
    The defendant knew or ought to have known this dangerous wire would reach over to the roof. Mullen v. Electric Co., 38 Pa. Superior. Ct. 3.
    The appellant here, being engaged in the business it was, was held to the highest degree of care, and was bound to exercise the greatest possible foresight to avoid injury of any kind to persons who might come or be expected to come in contact accidentally or otherwise with its wires: Kreiner v. Straubmuller, 30 Pa. Superior Ct. 609; Rachmel v. Clark, 205 Pa. 314; Corbin v. Philadelphia, 195 Pa. 461; Lynchburg Tel. Co. v. Booker, 103 Va. 594 (50 S. E. Repr. 148); Eagle Hose Co. v. Electric Light Co., 33 Pa. Superior Ct. 581; Fitzgerald v. Edison Elec. Illuminating Co., 200 Pa. 540; Daltry v. Electric Light, Heat & Power Co., 208 Pa. 403; Alexander v. Nanticoke Light Co., 209 Pa. 571; Dannehower v. Tel. Co., 218 Pa. 216; Haertel v. Light & Power Co., 219 Pa. 640; Griesemer v. Electric Co., 224 Pa. 328; Mullen v. Electric Co., 38 Pa. Superior Ct. 3.
    May 22, 1912 :
    The deceased boy was in no sense a trespasser: Fitzgerald v. Electric Illuminating Co., 200 Pa. 540; Mullen v. Electric Co., .38 Pa. Superior Ct. 3.
   Opinion by

Mr. Justice Moschzisker,

Harvey Trout, a thirteen-year-old boy, was engaged in detaching a kite from an electric light wire on which it had been caught, when he received a shock which resulted in his death. The wire was stretched upon poles and was swinging at a distance of about four feet six inches from the outside edge of the cornice of a house. The boy went up to the top of his father’s house, through a trap door, and from there over the housetops to another roof some four doors distant, where he lay down on the tin cornice about one foot from the edge. He threw a corn-cob tied to the end of a string over the electric light wire and pulled it toward him; when the wire came within reach he touched it with one hand and immediately received the electric shock. At that particular place the insulation was worn off the wire, leaving it exposed.

The parents of the deceased boy sued the defendant company, alleging negligence in the maintenance of the wire and recovered a verdict upon which judgment was entered; the defendant has appealed. At the trial of the case, counsel for the defendant contended that the failure of the company to repair the defective insulation on the wire was not the proximate cause of the injury; that the boy’s death resulted from his own independent intervening act in voluntarily getting the wire within his reach in a manner and under circumstances which could not reasonably have been foreseen; upon this ground they asked for binding instructions, the refusal of which they now assign for error.

The act of the boy in getting hold of the wire was wholly unrelated to any act of the defendant in connection therewith. Had the wire been so close to the house that the boy might naturally have come in contact with it while playing about the roof, it might be contended that its condition was the proximate cause of his death. But such was not the case; all of the defendant’s wires were so far out from the house that they could not possibly have been reached by a full grown man much less a boy of thirteen. The boy could have run and played all over the roof without the possibility of his coming in contact with these wires. It was an original independent act of the deceased which could not reasonably have been anticipated that brought about this most sad accident, and this act was not induced by or did not follow as a natural sequence to any negligence of the defendant in connection with its wires. Under such circumstances there could be no recovery, and the defendant was entitled to binding instructions as requested.

We have examined all the authorities cited by the appellee and conclude that the present case is not ruled by any of them. Mullen v. Wilkes-Barre Gas & Elec. Co., 229 Pa. 54, chiefly relied upon, was an instance where a boy, playing in a tree through which the defendant’s wires ran, received a shock by coming in contact with a bare wire. The fact was notorious that children were accustomed to play about and climb this tree. The Superior Court held that the defendant’s negligence in maintaining an' uninsulated wire running through the branches of the tree was the proximate cause of the accident, because it was bound to know that children might accidentally come in contact with such wire; and we affirmed per curiam, saying that the case was “admittedly close.” That case stands for and must be confined to its own facts.

The assignments of error are sustained, the judgment of the court below is reversed and judgment is here entered for the defendant.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Charles Eneu Johnson Company v. Philadelphia, Appellant.

      Negligence — Municipalities — Repair of streets — Independent contractor — Evidence — Two actions.

    1. A municipality is not always relieved from liability for injuries resulting from the work of an independent contractor in repairing its streets. If the city requires a street to be kept open for use by the public while the repairs are being made, the duty rests upon it to maintain the street in a reasonably safe condition for every purpose of a public highway, and this applies not only to travel upon the street and to injuries resulting to travelers thereon, but also to the burning of a building abutting on the street caused by inflammable rubbish which had been deposited in the street, and which the city had permitted to remain there for a long period of time.
    2. In such a case the city is liable not only upon the ground that it caused the inflammable rubbish to be placed in the street, but because it failed to remove what amounted to a dangerous menace to the property abutting on the street, and to anticipate a fire communicating from the inflammable rubbish to nearby buildings.
    3. In an action to recover damages for the burning of a building communicated from inflammable rubbish deposited in the street by a city contractor who was repairing the street, the trial judge commits no error in refusing to admit in evidence the record of a suit against the contractor for the same injury.

      4. The plaintiff was clearly within his legal rights in instituting two suits on the theory that one party or the other, or perhaps both had committed the negligent acts about which complaint was made. In such cases, it sometimes happens that two separate t judgments can be recovered, but there can be only one satisfaction.

      Argued March 19, 1912.
    Appeal, No. 100, Jan. T., 1912, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1909, No. 328, on verdict for plaintiff in case of Charles Eneu Johnson Company v. City of Philadelphia.
    Before Fell, C. J., Brown, Potter, Elkin Stewart, JJ.
    Reversed.
    Trespass to recover damages for the burning of a building.
    At the trial it appeared that plaintiff owned a building on Ritner street in the city of Philadelphia. Prior to the time of the fire, Ritner street was being repaired by Edwin H. Yare, a city contractor. There was evidence that the contractor had deposited large quantities of inflammable material in filling in the street, and that this had been permitted to lie exposed in the street for several weeks prior to April 21, 1908, when the material caught fire from a lighted cigar or match, and the fire was communicated to plaintiff’s building. The plaintiff brought suit both against the contractor and against the city. The court refused to admit in evidence the record of the contractor’s suit. Exception (3).
    Defendant presented the following points:

      4. “The uncontradicted evidence shows that whatever inflammable material was placed in the street, was placed there by an independent contractor with the city. If you believe this to be the fact, the city was not liable for the consequences of that act, and your verdict should be for the defendant.”
    Answer: Refused. (1)
    2. “If you find that the fire did originate in the bed of Ritner street, and that such fire was caused by the throwing upon ignitible material there of a lighted cigar or lighted cigarette by a third party, the proximate cause of the injury to the plaintiff was the throwing of the lighted cigar or cigarette, an act for which the defendant is not liable, and your verdict must be for the defendant.”
    Answer: Refused. (2)

      Plaintiff presented this point:
    8. “If you find defendant’s inspector inspected the grading of Bitner street in proximity to this property, and that he knew or ought to have known, that the street was being filled with large quantities of combustible materials, it is evidence of notice to the defendant of the condition of said street, and of the character of materials placed therein.”
    Answer: That I affirm. (4)
    Verdict and judgment for plaintiff for $30,781. Defendant appealed.

      Errors assigned, among others, were (1, 2-4) above instructions, quoting them, and (3) ruling on evidence, quoting the bill of exceptions.

      Joseph P. McCullen, with him James J. Breen, Asst. City Solicitor, and Michael J. Ryan, City Solicitor, for appellant.
    The city is not liable for the negligence of an independent contractor. Painter v. Mayor of Pittsburgh, 46 Pa. 213; Chartiers Valley Gas Coal v. Lynch, 118 Pa. 362; Welsh v. Parrish, 148 Pa. 599; Eby v. Lebanon County, 166 Pa. 632; Heidenwag v. Phila., 168 Pa. 72; White v. Philadelphia, 201 Pa. 512; Miller v. Merritt, 211 Pa. 127; Ginther v. Yorkville Boro., 3 Pa. Superior Ct. 403; Hooker v. Oakdale Borough, 5 Pa. Superior Ct. 404; Hunt v. Pennsylvania Railroad Company, 51 Pa. 475; Allen v. Willard, 57 Pa. 374; Ardesco Oil Company v. Gilson, 63 Pa. 146; Reed v. Allegheny, 79 Pa. 300; Wray v. Evans, 80 Pa. 102; Erie v. Caulkins, 85 Pa. 247; Erie School District v. Fuess, 98 Pa. 600; Smith v. Simmons, 103 Pa. 32; Edmundson v. Railroad Company, 111 Pa. 316; Susquehanna Depot Boro. v. Simmons, 112 Pa. 384.
    The alleged negligence of the city was not the proximate cause of plaintiff’s loss: Fairbanks v. Kerr, 70 Pa. 86; Allegheny v. Zimmerman, 95 Pa. 287; Peoria v. Adams, 72 Ill. App. 662; South Side Passenger Ry. Co. v. Trich, 117 Pa. 390.

      The record of the contractor’s suit should have been admitted: Emery v. Fowler, 39 Maine 326; Atkinson v. White, 60 Maine 396; Hill v. Bain, 15 R. I. 75 (23 Atl. Repr. 44); Emma Silver Mining Co. v. Emma Silver Mining Co., 7 Fed. Repr. 401; Anderson v. Fleming, 160 Ind. 597 (67 N. E. Repr. 443); Featherston v. Newburgh & Cochecton Turnpike Company, 71 Hun. 109 (24 N. Y. Supp. 603); Hayes v. Chicago Telephone Co., 218 Ill. 414 (75 N. E. Repr. 1003); Doremus v. Root, 23 Wash. 710 (63 Pac. Repr. 572); Portland Gold Mining Co. v. Stratton’s Independence, 158 Fed. Repr. 63.

      Fred. Taylor Pusey, with him Louis F. J. Hepburn, for appellee.
    It is a well-settled principle of law that where the employer reserves the right to control the work, the person by whom the work is performed stands, as to it, merely in the position of servant or agent, and the principle of respondeat superior applies: Sadler v. Henlock, 4 Ellis & Blackburn 570; Allen v. Willard, 57 Pa. 374; First Presbyterian Congregation v. Smith, 163 Pa. 561; Sipe v. R. R. Co., 222 Pa. 400; Foehr v. R. R. Co., 40 Pa. Superior Ct. 7; Stork v. Philadelphia, 199 Pa. 462.
    Whether or not the contract was independent the city is still responsible: Sanford v. Pass. Ry. Co., 16 Pa. Super. Ct. 393; Wyman v. Philadelphia, 175 Pa. 117; Norbeck v. Philadelphia, 224 Pa. 30; Beatrice v. Reid, 41 Neb. 214 (59 N. W. Repr. 770); Smith v. St. Joseph, 42 Mo. App. 392; First Presbyterian Congregation v. Smith, 163 Pa. 561; Berberich v. Ebach, 131 Pa. 165; Mahanoy Twp. v. Scholly, 84 Pa. 136; Burger v. Philadelphia, 196 Pa. 41; Drake v. Seattle, 30 Wash. 81 (70 Pac. Repr. 231); Birmingham v. McCary, 84 Ala. 469 (4 So. Repr. 630); Jefferson v. Chapman, 127 Ill. 438 (20 N. E. Repr. 33); Newman v. New York, 57 Misc. 636 (108 N. Y. Supp. 676).
    The record in Johnson v. Vare was properly rejected: Baker v. Small, 17 Pa. Superior Ct. 423; Pennebaker v. Parker, 33 Pa. Superior Ct. 458; Dutton v. Lansdowne Boro., 198 Pa. 563; Mehaffy v. Share, 2 P. & W. 361; Chandler’s App., 100 Pa. 262; Walker v. Philada., 195 Pa. 168; Lentz v. Wallace, 17 Pa. 412; Moser v. R. R. Co., 233 Pa. 259; Kelsey v. Murphy, 26 Pa. 78; Wiest v. Electric Traction Co., 200 Pa. 148; Rowland v. Philadelphia, 202 Pa. 50; Goodman v. Coal Township, 206 Pa. 621; Brookville Boro. v. Arthurs, 130 Pa. 501; Building Society of Manayunk v. Holt, 184 Pa. 572; Sutter v. Kansas City, 138 Mo. App. 105 (119 S. W. Repr. 1084); Nelson v. Illinois Cent. R. R. Co. 53 So. Repr. 619.
    May 22, 1912:
   Opinion by

Mr. Justice Elkin,

We have concluded that there must be a reversal of the judgment in this case. The case was not tried on a proper-theory, and as a result the rights and liabilities of the parties were not carefully defined. The liability, or non-liability of an independent contractor is not vital to the question here involved. A municipality is not always relieved from liability for injuries resulting from the work of an independent contractor in repairing its streets. If at the time of the commission of the negligent acts complained of, the contractor did not have the exclusive control of the street with the authority to prohibit the use of it by the public, the city may be liable for failure to perform its duty in exercising proper care in the supervision and control of that street as a public highway. If, as we understand the facts in the present case, the city required the street to be kept open for use by the public while the repairs were being made, the duty rested upon it to maintain the street in a reasonably safe condition for every purpose of a public highway: Wyman v. Philadelphia, 175 Pa. 117; Norbeck v. Phila., 224 Pa. 30. It is argued for appellant that this rule only applies to travel upon the street and to injuries resulting to travelers thereon. No reason is suggested for thus restricting the rule and we find no authority for so doing. In many jurisdictions it has been held that a municipality making improvements, or doing work upon its streets, whether by an independent contractor or otherwise, is bound to take notice, of the character of the work, and the condition of its streets, as affected by the prosecution and performance of such work, in so far at least as such streets may be rendered unsafe and dangerous by the work being done: Beatrice v. Reid, 41 Neb. 211; Smith v. St. Joseph, 42 Mo. App. 392; Birmingham v. McCary, 84 Ala. 469; Jefferson v. Chapman, 127 Ill. 438. If the city is bound to take notice of dangers occasioned by the repairs being made to the street, while it is being used by the public, it is its duty to exercise reasonable care in removing those dangers so as to avoid such injurious consequences as should have been reasonably anticipated. The evidence was not sufficient to sustain the charge that the city had negligently caused the inflammable materials to be placed on the street, and if this were the only ground upon which the right to recover depended, we would be compelled to say that no case had been made out. But, it is also charged that the city had “permitted said inflammable rubbish to be and remain in and upon said public highway in large quantities in close proximity to plaintiff’s establishment, unprotected and unguarded, for a long space of time prior to said April 21, 1908, to wit, for several weeks prior thereto,” and by reason of permitting such inflammable rubbish to be accumulated upon the public highway, a fire broke out and was communicated to the establishment of plaintiff, an abutting owner. If the city is liable at all in this case, it is not upon the ground that it caused the inflammable rubbish t.o be placed in the street, but because it failed to remove what amounted to a dangerous menace to the property of plaintiff; that it should have anticipated the consequences of a fire breaking out in the inflammable rubbish; and that failure to anticipate these dangers and remove them constitutes a negligent disregard of the rights of the complaining abutting owner. The vital question is, what duty did the city owe to the abutting property owner under the facts of this case? This question was entirely disregarded at the trial for the reason, no doubt, that the city defended upon the ground that the negligence charged was that of an independent contractor for which it was not liable, while the appellee, on the other hand, tried the case upon the theory that the duty of the city to an abutting property owner was substantially the same as to a traveler upon the street. Both theories are wrong. The rights of an abutting property owner on one hand, and the duty of the city, on the other, were not defined, and the case was not submitted to the jury in such manner as to afford an opportunity for intelligent consideration and correct conclusion upon these questions. What duty did the city owe the complaining abutting owner? In Nevins v. Peoria, 41 Ill. 502, it was said: “A city has no more power over its streets than a private individual has over his own land, and it cannot under the plea of public convenience, be permitted to exercise that dominion to the injury of another’s property in a mode that would render a private individual responsible in damages without being responsible itself. The same law that protects the property of one private individual against invasion by other individuals, must protect it from aggression on the part of municipal corporations.” Upon this question we quote with approval the following language taken from an opinion of the Supreme Court of New Hampshire, in Gilman v. Laconia, 55 N. H. 130: “Indeed, for all purposes of construction and repair towns stand in a position which differs in no substantial respect from that of an owner of the fee; their control of the premises is so far absolute and exclusive. This, as it seems to me, obviously imposes upon them a duty towards the owner of adjoining land which, so far as regards the consequences of their acts and omissions in building and repairing is not to be distinguished from the duty of an ordinary adjoining proprietor of land with respect to the premises of his neighbor. The purposes for which the land is taken is to build and maintain upon it a road for the use and accommodation of the public. To build and maintain such a road in a suitable and proper manner must, of course, always be held a reasonable use of the land, because this is the use to which it has been condemned...... But when it comes to a matter of an unsuitable and improper construction, or of a wanton or negligent disregard of the rights of the landowner in maintaining the highway, I see no reason why the maxim sic utere tuo ut alienum non laedas should not apply. To hold otherwise would, as it seems to me, be not only gross injustice but a palpable violation of legal principles that are quite fundamental and elementary.” These cases are authority for the rule that the duty of a city, in exercising control and supervision over its streets, to an abutting property owner is analogous to the duty which an individual land owner owes to the premises of his neighbor. This view also finds support in other jurisdictions where the question has been raised, and we find nothing in our own cases to the contrary. This rule seems to be sound and we see no reason why it should not be followed. Under this rule the city in the case at bar would only be liable for damages to an abutting owner if the facts warranted the inference that it had permitted large quantities of inflammable materials to be placed in the street in such close proximity to the property of appellee as to amount to a wilful, or wanton, or negligent disregard of the rights of such abutting owner. The city would not be liable to the adjoining property owner for injuries caused by the ordinary use of the street, or for damages indirectly resulting from the ordinary and usual accumulation of waste materials upon the street. To permit a recovery in this case it must be shown that the accumulation of inflammable materials was unusual, extraordinary and dangerous, and that the city should have anticipated the danger to the property of appellee as a consequence of a fire breaking out in the rubbish deposited so close to its property. While the city had certain duties to perforin, appellee company also had duties which could not be disregarded. It was its duty to make all reasonable efforts to protect its own property, to guard against fire, and the greater the danger, the more imperative the duty; and if it failed to perform its duties, it would be guilty of contributory negligence and there could be no recovery. All of these legal positions depend upon the facts, which if sufficient, must go to the jury. We have indicated at some length the legal principles which should govern at the trial because we find no precedent in our cases for the precise question involved in this controversy.

The learned court below was clearly right in refusing to admit in evidence the record of the suit against the contractor. When the record was offered no judgment had been entered and the suit was still pending. But aside from this, that was an independent action, and it in no way affected the case at bar. The plaintiff was clearly within its legal rights in instituting two suits on the theory that one party or the other, or perhaps both, had committed the negligent acts about which complaint is made. In such cases, it sometimes happens that two separate judgments may be recovered, but there can be only one satisfaction: Seither v. Traction Co., 125 Pa. 397; Thorp v. Boudwin, 228 Pa. 165. The fact that the plaintiff failed in its suit against the contractor will not defeat this action, if the charges of negligence against the city are sustained by sufficient evidence.

One of the assignments of error raises the question of proximate cause. We can not agree that the city is relieved from all liability unless it be shown that some of its officers, or employees, started the fire, because this is not the negligence charged. We do agree that the question of proximate cause as it relates to the charges of negligence in this case was not defined, or explained to the jury, so as to adequately instruct them upon the legal rights and duties of the parties.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Stewart,

text:
    Beihl v. Martin, Appellant.

      Husband and wife — Estate by entireties — Banhrwptcy of husband — Judgments against husband — Liens — Alienations by husband and wife.

    1. Where a husband and wife hold an estate in land by entireties their joint .deed is sufficient to pass title in the land free from the effect of bankruptcy proceedings and judgments against the husband, and free from any contingent interest or ownership therein by the trustee in bankruptcy in the event of the bankrupt surviving his wife.
    2. While the expectant interest of husband and wife, where they hold by entireties, may be the subject of lien, and upon the death of either, the lien against the survivor may be enforced, this does not mean that there may be a severance in ownership in any other way than by the death of one or other of the parties, or by voluntary alienation by both. Fleek v. Zillhaver, 117 Pa. 213, distinguished.
    3. While the estate by entireties continues it is utterly impossible for either party without the other joining, to sell or assign his or her interest therein, even the expectancy of survivorship.
    Argued March 21, 1912.
    Appeal, No. 119, Jan, T., 1912, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1911, No. 3548, for plaintiff on case stated in suit of Ernest H. Beihl and Clara Beihl, his wife, v. William J. Martin.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    The facts are set forth in the case stated as follows:
    1. That Ellwood Smith and wife, by deed dated May 20, 1903, and recorded in deed book W. S. V. 139, page 535, etc., and conveyed nnto Ernest H. Beihl and Clara L. Beihl, his wife (therein called the grantees — the form of grant being, to wit: “Do grant, bargain, and sell, release and confirm, unto the said grantees, their heirs and assigns”), all that certain lot or piece of ground with the brick messuage or tenement thereon erected, situate on the east side of Fifteenth street......
    2. That the habendum in said deed of conveyance provided as follows: “To have and to hold the said lot or piece of ground with the brick messuage or tenement thereon erected, hereditaments and premises hereby granted or mentioned and intended so to be with the appurtenances unto the said grantees their heirs and assigns; to and for the only proper use and behoof of the said grantees their heirs and assigns forever.”
    3. That by virtue of the said deed of conveyance the plaintiffs were vested with a good and marketable title in fee simple to said premises.
    4. That while the plaintiffs were so seized thereof the said Ernest H. Beihl was, on July 2, 1909, adjudged a voluntary bankrupt by the United States District Court for the Eastern District of Pennsylvania, the said Clara L. Beihl not joining in said bankruptcy proceedings nor giving, consent thereto, and on July 21, 1909, Charles J. Weiss was elected, and duly qualified, to be trustee in bankruptcy of the estate of Ernest H. Beihl, which trusteeship is still existing — there remaining unpaid an existing indebtedness on the part of the said Ernest H. Beihl of over $14,000.
    5. That while the plaintiffs were seized of said premises judgment for $1,307.23 was on July 2, 1909, and another judgment for $373.39 was on July 9, 1909, entered upon the proper index in Philadelphia county against the said Ernest H. Beihl, by creditors who subsequently filed their respective claims, as shown by said judgments, with the referee appointed in the said bankruptcy proceeding.

      6. That subsequently in September, 1911, while plaintiffs were seized of said premises in the manner herein-before recited, the defendant, William J. Martin, agreed to purchase the same for the price of $6,500, and the plaintiffs agreed with the said defendant that the deed to be delivered by plaintiffs shall convey a good and marketable title unto the defendant William J. Martin and shall vest in him the title to said premises in fee simple, clear of any and all judgments and defects of every kind, and particularly clear of any contingent claim of ownership or interest which might or could be enforced against the said premises subsequent to the proper execution, delivery and recording of said deed unto the said defendant.
    The court entered judgment for the plaintiff on the case stated, relying on Meyer’s Est., 232 Pa. 89 and 95, and Weiss v. Beihl, 232 Pa. 97.

      Error assigned was the judgment of the court.

      George P. Rich, with him Wm. B. S. Ferguson, for appellant.
    The cases relied upon by the court below fall far short of deciding that a husband who has parted with his interest, either to a purchaser or to his trustee in bankruptcy, or as against whom creditors have obtained judgment, may nevertheless join with his wife in conveying a valid title to a purchaser, free from any liability either to such previous purchaser, trustee in bankruptcy or judgment creditors, in the event of the husband surviving the wife.
    The questions involved in this case have been settled by the case of Fleek v. Zillhaver, 117 Pa. 213.
    All possible titles, whether vested, contingent or by executory devise, may be taken in execution and sold, provided there be a real interest in the defendant, either legal or equitable: Drake v. Brown, 68 Pa. 223; DeHaas v. Bunn, 2 Pa. 335; Kenyon v. Davis, 219 Pa. 585.

      May 22, 1912:

      Harvey Gourley, for appellees.
    The husband and wife have equal estates, but the Act of April 11, 1848, P. L. 536, disables the husband from so encumbering his title as to deprive the wife of the full enjoyment of her title: McCurdy v. Canning, 64 Pa. 39; Gillan v. Dixon, 65 Pa. 395; Holcomb v. People’s Sav. Bank, 92 Pa. 338; Dexter v. Billings, 110 Pa. 135; Alles v. Lyon, 216 Pa. 604.
    A substitution of another for the husband, destroys the “entirety”: Meyer’s Est., 232 Pa. 89; Fairchild v. Chastelleux, 1 Pa. 176; Stuckey v. Keefe, 26 Pa. 397; McCurdy v. Canning, 64 Pa. 39; Alles v. Lyons, 216 Pa. 604; Holcomb v. People’s Sav. Bank, 92 Pa. 338.
    When another steps in her husband’s place, to any degree of interest, the “entirety” is reduced to an estate in common, because no one is capable of owning the entirety excepting husband and wife.
   Opinion by

Mr. Justice Stewart,

It may be that because of modern innovations on the common law respecting the property rights of married women, the venerable estate known as estate by entireties has outlived the purpose of its creation and is out of harmony with present conditions. However this may be, if change is desired, it must come through legislative action and not through judicial construction. This estate is too well established and too well defined to be subject to judicial impairment. Recognizing its very anomalous character we have been careful, as all our cases show, to give effect to these peculiar incidents which naturally and logically attach, especially to its chief distinguishing incident which exempts it from the ordinary legal process to which all other estates are subject. Fundamentally the estate rests on the legal unity of husband and wife; it is therefore a unit, not made up of divisible parts subsisting in different natural persons, but is an indivisible whole, vested in two persons actually distinct, yet to legal intendment one and the same. Each is seized of the whole estate from its inception, and upon the death of one, while the right of survivorship remains to the other, that other takes no new title or estate. “A conveyance to husband and wife creates neither a tenancy in common nor a joint tenancy. The estate of joint tenants is a unit made up of divisible parts; that of husband and wife is also a unit; but it is made up of indivisible parts. In the first case there are several holders of different moieties or portions, and upon the death of either the survivor takes a new estate. He acquires by survivorship the moiety of his deceased co-tenant. In the last case, although there are two natural persons, they are but one person in law, and upon the death of either, the survivor takes no new estate. It is a mere change in the properties of the legal person holding and not an alteration in the estate holden. The loss of an adjunct merely reduces the legal personage holding the estate to an individuality identical with the natural person. The whole estate continues in the survivor the same as it would continue in a corporation after the death of one of the corporators. This has been the settled law for centuries”: Stuckey v. Keefe, 26 Pa. 397.

It is this striking peculiarity of the estate — the entirety alike in husband and wife — that operates to exempt it from execution and sale at the suit of a creditor of either separately. The enforcement of such process would be the taking of the property of one to pay the debt of another. But may not the interest of either be seized in satisfaction of his or her appropriate and exclusive debt? Before answering let us clearly understand what is here meant by interest. For convenience of illustration take the case of a husband. Towards everybody in the world except the wife he has exclusive possession during her lifetime, and his right to the enjoyment of the estate during this period may not be interfered with at the suit of his creditor. So much is conceded, and has been expressly decided by this court in a number of cases, notably in McCurdy v. Canning, 64 Pa. 39. With possession denied a purchaser at an enforced sale during the joint life of the parties to the estate, what is there to acquire by purchase? Nothing but a bare expectancy, a chance that the husband may survive the wife and have the entirety to himself. May that expectancy be made the subject of a judicial sale? Certainly never up to this time have we said that it can be. The case of Fleek v. Zillhaver, 117 Pa. 213, marks the extremest limit to which we have gone in subjecting estates of this character to demands of separate creditors. We cannot allow that that case was an attempt to modify or escape from conditions which up to that time had been universally recognized as necessarily resulting from the nature and character of this peculiar estate. On the contrary, the result there reached can be vindicated only as it can be shown to be in harmony with these conditions ; for it was along lines thought to be entirely consistent with these that the conclusion there expressed was reached. The controversy there arose after the death of the wife. During the continuance of the estate creditors of the husband obtained judgments against him. Later on husband and wife joined in a mortgage of the land. Upon survival by the husband execution was issued on the judgments that had been obtained against him and the land was sold thereunder. A sci. fa. on the first mortgage followed, in which the party holding purchaser at sheriff’s sale was served as terre tenant. The efficiency of the sheriff’s sale to pass title was the question in dispute, and this was the ruling of the court: “It was that kind of estate (entireties) which was bound by the lien of the mortgage given by Mary Holcomb; and it was the same kind of estate which was bound by the lien of the judgment against her husband. As against the wife, the mortgage was undoubtedly the first and indeed the only lien. As against the husband, the judgment was the first lien and the mortgage the second, simply because the judgment was obtained before the mortgage was given. Had the wife survived, the mortgage would certainly have had precedence to the exclusion of the judgment, because the estate bound by the lien of the judgment was defeasible by the death of the husband before the wife. For the same reason, if the husband survived the wife the estate of the latter was divested, and the mortgage only became operative against the husband because he had joined in its execution. But as to him it was not the first lien, he having become subject to a judgment at a time anterior to the giving of the mortgage.”

This case stands as authority with respect to what it expressly rules, viz: that the interest of husband and wife where they hold by entireties may be the subject of lien, and that upon the death of either the lien against the survivor may be enforced. It is to be observed that it does not rule that there can be a severance in ownership in any other way than by the death of one or other of the parties, or by voluntary alienation by both. So it will become apparent on a recital of the facts we have here, that the present case falls without the scope of that. Here the estate in the land as originally created continues, and what we have tó determine is the capacity of the parties, husband and wife, by their joint deed to convey the interest of both free and discharged of the lien of the husband’s judgments. The property was acquired by deed of conveyance to husband and wife in 1903. On the 2nd of July, 1909, the husband, Ernest H. Beihl, by the United States Circuit Court for the Eastern District of Pennsylvania, was adjudged a bankrupt, his wife not being a party to the proceeding or consenting thereto. On the same day several judgments were entered against the husband by creditors who subsequently filed their respective claims with the referee appointed in the bankruptcy proceedings. In September, 1911, Beihl and his wife entered into articles of agreement with William J. Martin, the defendant, whereby for consideration of $6,500 they covenanted to sell and convey the property so above acquired to said Martin, by good and sufficient deed in fee simple “clear of any and all judgments and defects of every kind, and particularly, clear of any contingent claim of ownership or interest which might or could be enforced against the said premises.” The matter is submitted on a case stated which provides that if the court shall be of opinion that a proper deed from plaintiffs to defendant will convey such title to the said premises as is stipulated for in the agreement, then judgment shall be entered for the plaintiff. The fact that we have here a referee or assignee in bankruptcy adds nothing to the complications. Any one claiming an interest in the premises through such an officer would be in exactly the same position as a purchaser at sheriff’s sale. The same results must follow whether the attempted severance of the title is by assignee or sheriff. We may therefore disregard the bankruptcy feature of the case, and address ourselves to the naked question whether under a joint conveyance from husband and wife, the purchaser will take the estate divested of separate liens acquired against either, if any. No case can be pointed to in our reports where the exact question has been raised and met. We are therefore thrown back on general principles so far as applicable to the peculiar features of this estate. We start in the discussion with an admission which the case of Fleek v. Zillhaver, supra compels, that the judgments here obtained against the husband were liens. But upon what? Certainly not upon the entirety that was in the husband, for the entirety of estate was in the wife equally with the husband, and being in its nature indivisible, it would follow necessarily that any encumbrance upon the estate of the one would rest upon that of the other, a result which of course could not be justified or allowed except as the inherent attributes of the estate are to be wholly disregarded. There remains to the husband a right of survivorship, by virtue of which, in case he survive the wife, while taking no estate, jet because the entirety in the wife is by her death extinguished, his entirety embraces every interest in the estate. Contingent though this ultimate divestiture be, the expectancy is nevertheless a vested interest, and as such may be the subject of lien. All possible titles, vested or contingent, in land, under our law may be taken in execution and sold provided it be a real interest, whether legal or equitable. “Accordingly,” says Tilgman, C. J., in Carkhuff v. Anderson, 3 Binn. 4, “it has been long settled that a judgment is a lien on every kind of equitable interest in lands. It is a lien on every kind of right vested in the debtor at the time of the judgment.” The right to such a lien is not dependent alone on statutory authority. At common law judgments were not liens upon land, but the lien resulted from lands being subjected by statute to be taken in execution, and from this right the land was held bound from the date of the judgment. Our statutes with respect to liens simply enlarge and extend them. It was this contingent expectant interest in the husband that was in contemplation when in Meek v. Zillhaver, supra, this court held that the judgment against the husband acquired a lien at its inception. Admitting then the lien on the expectant interest, the question occurs when is it enforcible? At once, or only upon the realization of the expectancy? A little reflection upon the nature of the estate by entireties should make it apparent, we think, that while the estate continues it is utterly impossible for either party, without the other joining, to sell or assign his or her interest therein, even the expectancy of survivorship. The rights of the parties are fixed by the deed of conveyance to them, and by that instrument each took an entirety made up of indivisible parts. Any alienation by one, the other not consenting, of any interest whatever in the estate, if allowed, would be an abridgment pro tanto of the rights of the other. By their joint act they admittedly have the right to sell and dispose of the whole estate; by their joint act they may strip the estate of its attributes and create a wholly different estate in themselves; but neither can divest himself or herself of any part without in some way infringing upon the rights of the other. The wife has the right to initiate as well as the husband. Suppose she desire to sell the land — a right which is hers — and the husband consent, what does his consent amount to if he has parted with his expectancy of survivorship to a stranger? Such circumstance would operate to deny to the wife the enjoyment of an inseparable incident of ownership, the right of alienation. Now, stating it broadly but correctly, nothing can be taken in execution and sold as the property of a debtor except property over which the debtor has the right of disposition by sale or otherwise. If then the husband cannot sell or dispose of his expectancy of survivorship, it follows that it may not be taken in execution. By this reasoning we reach the conclusion that the lien on the expectant interest of the husband becomes enforcible only when the expectancy ripens into a realized fact; then execution is not upon an expectancy but upon an actual existing estate. Another unavoidable conclusion results which must prove fatal to the appellant’s contention here. If the husband may not alien his right of expectancy, and if because of this the expectancy may not be taken in execution — since in either case it would be an appropriation of the wife’s right of property in that it would deprive her of the right to sell with the husband’s consent — for equal reason a judgment operating as a lien upon the husband’s expectancy would be an interference with the wife’s right of alienation with the consent of the husband, except as that lien is divested by such sale. The owner of such lien must hold it subject to its possible extinction in either of two events, the predecease of the husband, or the alienation of the estate by the joint act of the parties. The efficiency of the lien depends upon the nonhappening of either.

The effect sought to be given the case of Fleek v. Zillhaver, supra, has made this discussion seem necessary, But for that case we might well have rested this on what we regard as the decided weight of authority in other jurisdictions touching the questions here directly involved. We attempt no discussion of these conflicting decisions. They may be found cited and reviewed in a very carefully prepared annotation in the case of Jordan v. Reynolds, Maryland Court of Appeals, reported in 9 L. R. A. (N. S.) — page 1026, where the following conclusion is expressed by the learned editor. “The weight of authority founded as we think upon the better reasoning, is that such acts (the reference being to enabling acts with respect to rights of property in married women) do not in any way effect estates by entirety, except that they deprive the husband of the right to the possession and enjoyment of the property held by himself and wife in this manner, to the exclusion of the wife. That such acts have the effect of freeing the wife’s property from any liability to his creditors, and that, therefore, her rights to the possession and enjoyment of property held in common with her husband by entirety cannot in any way be interfered with by his creditors; and hence the entire property, during their joint lives, is free from judgment or execution lien directed against either of them?” In this conclusion we entirely concur, saving, however, whatever exception may be required to give effect as above indicated to the doctrine asserted in Fleek v. Zillhaver.

The decisions holding to a different view than that we here express would seem to rest largely upon considerations of policy; the governing consideration in each seeming to be that the exemption of the estate from executions and liens directed against husband or .wife would be an invitation to fraud, and would operate as a shield of protection against the just demands of creditors. And this view has been strongly pressed upon our attention in the present case. But fixed rules of law do not give way to expediency or policy. If they did, and the question here was one of policy, our conclusion would be the same; for as between the poli cies suggested, we would incline to that which would prevent a husband’s expectancy in cases like this from being huckstered about and made the subject of wagering contracts of dangerous character, rather than to one which would permit such traffic in order that creditors might have a security upon which they had no right to rely when they extended credit.

The learned court below adjudged the deed in this case from husband and wife sufficient to pass title free from the effect of the bankruptcy proceedings and the judgments against the husband, and free from any contingent interest or ownership therein by the said trustee in bankruptcy in the event of the bankrupt surviving his wife. In this the court was correct. The exceptions are overruled and the judgment is affirmed.


author: Mr. Justice Potter,

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

      Negligence — Street railways — Blind men — Collision with street car — Contributory negligence.

      1. In an action by a blind man against a street railway company to recover damages for personal injuries sustained by a collision •with a street car at a crossing, a verdict and judgment for the defendant will be sustained, where the plaintiff testified that he did not hear the car when he started across the street, and the motorman testified that as he approached the crossing at slow speed he saw plaintiff standing in the roadway near the curb apparently looking towards the car, that he did not know plaintiff was blind, that when the car was about its own length from him, plaintiff started swiftly across the street in front of it, that the witness put on his brake hard, but the fender struck plaintiff’s leg just as he was clearing the track, and that the car only ran about three feet after it came in contact with plaintiff.
    2. In such a ease the trial judge cannot be charged with error in saying to the jury that he saw nothing in the testimony to indicate that the car in question ran at an unusual rate of speed; nor was it error fo'r the court to say that if the plaintiff had been a person with normal eyesight his action would, under the law, have been probably considered contributory negligence; nor was it error to say that it was the duty of plaintiff even though not able to see to exercise as much care as possible for his own protection under the circumstances.
    3. An ordinance is properly rejected where its subject matter does not appear, and its relevancy to the issue being tried is not made apparent.
    Argued March 22, 1912.
    Appeal, No. 206, Jan. T., 1911, by plaintiff, from judgment of C. P. Pbila. Co., June T., 1907, No. 2628, on verdict for defendant in case of Thomas H. Ervin v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Tresspass to recover damages for personal injuries. Before Magill J.
    The facts are stated in the opinion of the Supreme Court.
    At the conclusion of plaintiff’s case plaintiff’s counsel made the following offer:
    Mr. Cadwalader: I offer in evidence the two X-Ray plates.
    I want to offer also the Ordinance of 1895.
    (Objected to.)
    (Ob j ection overruled.)
    (Exception to defendant.)
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) ruling on evidence; (2-6) portions of the charge.

      May 22, 1912:

      John Cadwalader, Jr., for appellant.

      Owen J. Roberts, for appellee.
   Opinion by

Mr. Justice Potter,

The plaintiff in this case is blind, but has been trained to go about the streets of the city alone. He brought this suit to recover damages for injuries resulting from a collision with a street car, while he was crossing Columbia avenue, on the morning of November 17, 1906. He charged the motorman with negligence in failing to stop his car in time to avoid the collision. The trial judge submitted to the jury the' question of defendant’s negligence, and the plaintiff’s contributory negligence. Upon both of these issues the verdict was in favor of the defendant. The plaintiff could not of course see the car, and he testified that he did not hear it, when he started to cross the street. It was in fact approaching, and was quite near him. The motorman testified that as he approached at slow speed, he saw plaintiff standing in the roadway near the curb, apparently looking towards the car. He did not know plaintiff was blind. When the car was about its own length away from him, plaintiff started swiftly across the street in front of it. The motorman put on his brake hard, but the fender struck the plaintiff’s leg just as he was clearing the track. The jury evidently ¡credited this statement. There is no evidence that the car was not under proper control or that the motorman neglected his duty in any way. Not satisfied with the verdict, plaintiff has appealed from .the judgment entered thereon. With much earnestness and great pains, his counsel has sought to show that the trial judge erred in the rejection of some testimony, and in charging the jury.

In the first assignment of error, complaint is made of the rejection of a portion of a city ordinance. The record shows the expression of a wish to offer an ordinance, but its subject matter did not appear, nor was its relevancy to the issue being tried made apparent. The negligence alleged was in bringing the car up to the crossing without notice or warning of its approach. This charge was met by evidence which satisfied the jury that the motorman had done everything in his power to avoid the accident after its possibility became apparent to him. The provisions of the ordinance could have had no bearing upon this question.

In the second assignment the court is charged with error in saying to the jury that he saw nothing in the testimony to indicate that the car in question ran at an unusual rate of speed. The record fully sustains this statement, as the car only ran about three feet after it came in contact with plaintiff.

In the third assignment it is alleged that the court erred in explaining the difference between affirmative and negative testimony, and in further intimating that the testimony of plaintiff was negative. Here again the record fully bears out the statements of the judge, and his instructions to the jury were timely, and well adapted to aid in securing a proper understanding of the real question at issue. The effort which he made in this respect was most commendable. The jury were rightfully instructed that if the plaintiff had been a person with normal eyesight, his action would, under the law, have been properly considered contributory negligence. Nor do we see any fair grounds for criticising the instruction that it was the duty of plaintiff, even though not able to see, to exercise as much care as possible for his own protection under the circumstances. It was left squarely to the jury to determine whether, in view of his blindness, the plaintiff exercised due care in walking the streets. The sixth point was as follows: “If the jury believe that the blind man was physically and mentally fit to go about alone; and that on the occasion of his injury he was exercising all the care that a reasonable and prudent blind man should exercise under the circumstances, they cannot find him guilty of contributory negligence.” This point was affirmed.

In none of the assignments do we find anything set forth which in any way approaches reversible error. The charge as a whole carefully and impartially sets forth the respective rights and duties of both plaintiff and defendant, and it is evident, from the record of the questions asked by the jury, and the further instructions which they of their own accord requested from the court, that the jury gave unusual and discriminating attention to the just and proper determination of the questions of fact submitted to them.

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


text:
    Roth v. Cohn, Appellant.

      Wills — Construction — Estate in fee simple — Rule in Shelley’s Case.

    Where a testator devises all of his real estate to his five children “for and during the term of their natural lives respectively, and on the decease of any of them leaving issue then I give and devise the share of such child So dying (supposing that he or she had an equal share in fee of my real estate aforesaid) to such issue in fee simple,” each of the five children takes an estate in fee simple in his or her share.
    Argued March 26, 1912.
    Appeal, No. 113, Jan. T., 1912, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 5951, for plaintiff on case stated in suit of Claude L. Roth, master, v. Harry Cohn.
    Before Fell, C. J. Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.

      Case stated to determine title to real estate. Before Willson, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for plaintiff on case stated.

      Henry Arronson, with him Max Hersherg, for appellant.
    The intention of testator should control: Biddle’s App., 99 Pa. 525; McKee’s App., 104 Pa. 571; Osbourn’s App., 104 Pa. 637; Webb v. Hutchins, 105 Pa. 91.
    The will fixes a definite time within which the failure of issue must happen. Robins v. Quinliven, 79 Pa. 333; Grimes v. Shirk, 169 Pa. 74; Dufour v. Bubb, 199 Pa. 107; Oliver’s Est., 199 Pa. 509; Hill v. Giles, 201 Pa. 215; Gernet v. Lynn, 31 Pa. 94; Powell v. Board of Domestic Missions, 49 Pa. 46; Taylor v. Taylor, 63 Pa. 481.
    A limitation over to survivors or persons in being after the death of the first taker without issue, raises a strong presumption that the testator did not contemplate an indefinite failure of issue: Stoner v. Wunderlich, 198 Pa. 158; Franci’s Estate, 4 Pa. D. R. 694.
    Testator refers to a definite failure of issue: Abott v. Jenkins, 101 S. & R. 296; Way v. Gest, 14 S. & R. 40.
    On the death of any of the testator’s children, without issue, or having issue, who should die in their minority, there is a further limitation over to Ms other child or children in the same manner as he had given and devised his real estate. Powell v. Board of Domestic Missions, 49 Pa. 46; Taylor v. Taylor, 63 Pa. 481; Eichelberger v. Barnitz, 9 Watts 447.

      Frederick J. Shoyer, for appellee.

      May 22, 1912:
   Opinion by

Mr. Justice Stewart,

The appeal is from, judgment on a case stated, and the question we have to decide is one of title to land acquired under the last will of Charles Brechemim, deceased. The language of the devise was as follows: “I give and devise all my real estate situated in Philadelphia to my five children for and during the term of their natural lives respectively, and on the decease of any of them leaving issue, then I give and devise the share of such child so dying (supposing that he or she had an equal share in fee of my real estate aftersaid) to such issue in fee simple. But if any of my children shall die without issue, or having issue, and such issue shall die before arriving at the age of twenty-one years, then it is my will, and I hereby order and direct that the share of such child so dying (supposing that he or she had an equal share in fee of my real estate) shall be disposed of and enj'oyed in the same manner as I have given and devised my real estate aforesaid. And should all my children die without issue, then it is my will, and I hereby order and direct that my said real estate shall go to my heirs in fee.” If those to whom the estate over was given were to take derivatively as heirs through the first takers, then, notwithstanding the words “for and during life” occurring in the devise to them, the estate in each first taker would be an estate in tail which by our statute would be enlarged into a fee simple. A clear presumption arises from the language employed in connection with the gift over, viz, “on the decease of any of them leaving issue, then I give and devise the share of such child so dying to such issue in fee simple,” that this was the intention of the testator. Not only so, but where as here the gift over is to persons standing in the relation of heirs general of the tenant for life, designated in the will as issue, the presumption of intention on part of testator that they shall take as heirs, is strengthened to a degree that it can be overcome only where the intent not to use the word in its legal sense is so unequivocally shown that no one can misunderstand it. McKee v. McKinley, 33 Pa. 92; Guthrie’s App., 37 Pa. 9; Arnold v. Muhlenberg College, 227 Pa. 321. We discover nothing in this will that indicates any other intent than that which the law presumes from the language used, and that, as we have said, clearly imports an estate of inheritance in the first takers, and that the remaindermen are to take through them. The gift over in the event of the first takers dying without issue. Under all our authorities these words in the absence of language disclosing a different intent, import a general indefinite failure of issue. Here again, the intent to use the words in a different sense than that the law implies must unequivocally appear before the legal presumption yields. Arnold v. Muhlenberg College, supra. The case last cited is so recent and contains such a full and satisfactory discussion of the questions raised that any further discussion of them ’here is unnecessary. We are of opinion from an examination of this will that it points, not to individual acquisition by those succeeding to the first takers, but, on the contrary, that heritable succession was intended. It follows that the children of testator each took an estate in fee simple under the devise. This was the determination of the court below, and in that we concur. The assignments of error are overruled and the judgment is affirmed.


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    Van Duzer, Appellant, v. Commonwealth Telephone Company.

      Negligence — Master and servant — Telephone companies — Evidence — Case for jury.

    In an action against a telephone company to recover damages for personal injuries, the case is for the jury where there is evidence that the plaintiff was employed by the defendant to aid in the construction of its lines, although he was without experience in this kind of work; that the company furnished him for the purpose of climbing poles, an appliance in the nature of a harness which fitted to the body; that attached to the harness were snaps which passed around the pole, and were fastened at the ends to the harness by means of metallic snaps; that these snaps were an important factor in the safety of the climber; that at the time of the accident one of the snaps which was out of order came open with the result of the strap dropping away from the hole, and letting the plaintiff fall to the ground; that the defect in the snap was not apparent at a glance; that it had existed for some time; and that no notice of its condition had been given to the plaintiff.
    Argued April 10, 1912.
    Appeal, No. 64, Jan. T., 1912, by plaintiff, from order of C. P. Luzerne Co., May T., 1909, No. 545, refusing to take off nonsuit in case of D. C. Yan Duzer v. Commonwealth Telephone Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzischer, JJ.
    Reversed.
    Trespass to recover damages for personal injuries before Ferris, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      Error assigned was refusing to take off nonsuit.

      Paul J. Sherwood, for appellant.
    The case was for the jury; McDermott v. Ice Co., 44 Pa. Superior Ct. 445; Cosgrove v. Ogden, 49 N. Y. 255; Broderick v. R. R. Station and Depot Co., 22 N. W. Repr. 802; Sheetram v. Lumber Co., 13 Pa. Superior Ct. 219; Lininger v. Air Brake Co., 210 Pa. 62; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Carr v. Fire Extinguisher Co., 224 Pa. 346.
    May 22, 1912:
    P. F. O’Neill, with him A. T. Walsh and F. W. Wheaton, for appellee,
    cited; Alexander v. Water Co., 201 Pa. 252; Price v. R. R. Co., 202 Pa. 176; Baker v. R. R. Co., 95 Pa. 211; Bomisch v. Roberts, 143 Pa. 1; Lee v. Dobson, 217 Pa. 349; Pittsburgh & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276; Brossman v. R. R. Co,, 113 Pa. 490.
   Opinion by

Mr. Justice Potter,

In this action of trespass, the plaintiff, an employee of the defendant company, sought to recover damages for injuries resulting from the alleged negligence of defendant in failing to provide the plaintiff with a reasonably safe harness or appliance to be used in climbing telephone poles. Upon the trial in the court below, at the close of the testimony offered in behalf of the plaintiff, judgment of compulsory nonsuit was entered, and from the refusal to take it off this appeal has been taken. There was evidence tending to show that plaintiff, who was without experience in this line of work, was employed by the defendant to aid in the construction of its telephone lines. There was testimony that the company furnished the tools, belts and appliances which were required for the work. In climbing poles an appliance was used which consisted of a harness fitted to the body of the climber, to which was attached straps which passed around the pole and were fastened at the ends to the harness by means of metallic snaps, which when in proper condition were kept closed by springs. These snaps were an important factor in the safety of the climber. At the time of the accident, the plaintiff was working upon a pole at some distance from the ground, when, owing to the movement of his body, or for some other reason, one of the snaps which it is alleged was out of order, came open, the encircling strap dropped away from the pole, and the plaintiff fell to the ground, receiving severe injuries. Such an accident would not have happened had the snaps been in proper working condition.

From the opinion of the trial judge, refusing the motion to take off the nonsuit, it appears that he regarded the harness, including the safety snaps, as being a simple contrivance which was very liable to get out of order, and he apparently considered that the entire responsibility for its inspection was cast upon the employee. He regarded the failure of the plaintiff to detect the defect in the appliance as constituting contributory negligence, which would in itself prevent the recovery of damages. We are not able to agree with the conclusion thus reached and acted upon by the trial judge. It appears from the evidence that the plaintiff had very little experience with this appliance before the accident. He had used it for a few hours only. The defect in the snaps does not appear to have been something which was apparent at a glance. Manual examination and testing of the springs was necessary. The trouble seems to have been in the springs which were weakened, and did not hold the tongue of the snap firmly in position when closed, so that while in so far as appearance went, it might be safe, the weakness in the spring was liable to permit the tongue of the snap to fall down upon slight pressure or an accidental touch. The testimony showed that this weakness in the springs had existed for some time, but no notice of any such condition was given to the plaintiff, when he was asked by the foreman to make use of the harness. Yet his safety evidently depended upon the integrity of the appliance in question.

Under these circumstances, we do not feel that the trial judge was justified in saying as a matter of law that the failure of plaintiff to observe this rather minute, yet most serious, defect in the appliance which was furnished to him by his employer, was such negligence as would defeat his right to recover. The simplicity of the device was not in itself enough to exempt the employer from all responsibility under the circumstances; and in judging of the conduct of the plaintiff, his lack of experience and the slight opportunity which he had under the circumstances for knowing and detecting any defect in the appliance, are factors which should have been taken into account. We cannot say that the only inference which could properly be drawn from these circumstances would be that of contributory negligence upon the part of the plaintiff. Where more than one inference may fairly be drawn from the evidence, the case is for the jury.

The judgment is reversed with a procedendo.


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    McDonald, Appellant, v. Lehigh Valley Railroad Company.

      Negligence — Railroads — Locomotive firemen — Contributory negligence — Question for fury.

    In an action against a railroad company by a locomotive fireman, one of its employees, for personal injuries, it appeared that it became necessary for the plaintiff in the discharge of his duty to get off his engine after dark for the purpose of changing a 'switch. He had a light, but as he stepped down from the engine the wind blew it out. He expected to alight upon level ground between the two main tracks of the railroad, directly opposite the switch stand which the trainmen were required to manipulate, which would have meant a distance of not more than eighteen inches. Instead of that his foot dropped into an excavation of a depth which nearly doubled the distance from the step of the engine to the ground. The space between the two tracks was used as a footway for trainmen and other employees. Held, that the question of the defendant’s negligence and the plaintiff’s contributory negligence was for the jury, and that the court below was guilty of error in entering a nonsuit.
    Argued April 10, 1912.
    May 22, 1912:
    Appeal, No. 145, Jan. T., 1912, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1908, No. 1430, refusing to take off nonsuit in case of John McDonald v. Lehigh Valley Railroad Company.
    Before Fell, C. J. Mestrezat, Potter, Stewart and Mosci-izisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries before Carman, J.
    The opinion of the Supreme Court states the case.

      Error assigned was the refusal to take off nonsuit.

      Thomas E. Farrell, with Mm John R. Halsey, for appellant,
    cited; Phila. & Reading R. R. Co. v. Schertle, 97 Pa. 450; Kerrigan v. Penna. R. R. Co., 194 Pa. 98; Kaylor v. R. R. Co., 216 Pa. 134; Clegg v. Steel Casting Co. 34 Pa. Superior Ct. 63; Whitcker v. R. R. Co., 70 N. H. 242 (46 Atl. Repr. 740); Ill. Cent. R. R. Co. v. Cozby, 174 Ill. 109 (50 N. E. Repr. 1011).

      J. B. Woodward, of Wheaton, Darling & Woodward, with him P. F. O’Heill, for appellee,
    cited; Phila. & Reading R. R. Co. v. Schertle, 97 Pa. 450; Brossman v. R. R. Co., 113 Pa. 490.
   Opinion by

Mr. Justice Potter,

This is an appeal from the refusal to take off a judgment of nonsuit. The plaintiff was a locomotive fireman, and in the discharge of his duty it became necessary for Mm to get off his engine after dark for the purpose of changing a switch. He had a light, but as he stepped down from the engine, the wind blew it out. He expected to alight upon level ground between the two tracks, directly opposite the switch stand, which would have meant a distance of not more than eighteen inches. Instead of that his foot dropped into an excavation which considerably increased the depth, and caused him to fall against the truck of the tender of the engine, permanently injuring his arm.

At the close of plaintiff’s testimony, the trial judge directed the entry of judgment of compulsory nonsuit In his opinion refusing to take off the judgment he said, “We must confess that under the circumstances of this case, we should have sustained plaintiff’s contention were it not for the fact that we interpret the rulings of the Supreme Court in the cases of Philadelphia & Reading R. R. Co. v. Schertle, 97 Pa. 450, and Kerrigan v. Penna. R. R. Co., 194 Pa. 98, to govern the case now before us.”

Plaintiff has appealed, and his counsel urge that the facts brought out in the testimony in this case take it out of the scope of the decisions above noted. The defect under consideration, in the cases cited, was in the roadbed itself, between the ties, and between the rails of the track, where a portion of the ballast had been washed out, or dug out at a place where the brakemen would be rarely required to go in the discharge of their duty. In addition to this, the defect was comparatively slight. In the present case, the negligence charged upon the defendant company was the maintenance between the two main tracks of an excavation of a depth which nearly doubled the distance from the step of the engine to the ground, and which was located at a point where the ground was ordinarily smooth and level, and which was used as a footway for trainmen and other employees. This excavation was immediately opposite a switch which the trainmen were required to manipulate. The excavation was perhaps of a temporary nature, but it seems to have been left without proper lights or danger signals to give notice of its existence.

We agree with the contention of appellant’s counsel, that the evidence of these facts does distinguish the present case from those upon which the judgment of this court was based in the cases which the trial judge deemed controlling. The defendant company was bound to use reasonable care to see that the approaches to the switch were kept in such condition that the trainmen who had occasion to approach this switch in the discharge of duty, could do so with safety provided they used due care for their own protection. Whether or not the conduct of. the company in excavating the trench, and in its subsequent care of it, was consistent with this duty, was a question of fact to be determined by the jury. So with regard to the conduct of the plaintiff, and as to whether he was negligent in the manner in which he stepped from his engine in the attempt to alight at the place in question for the purpose of turning the switch. This was for the determination of the jury. With respect to neither of these questions were the inferences to be drawn from the evidence so clear as to enable the court to properly dispose of them as matter of law. The whole case was one for the jury, to be submitted under careful and proper instructions.

The judgment is reversed with a procedendo.


author: Mr. Justice Mestrezat,

text:
    McElwee, Appellant, v. McCreight.

      Vendor and vendee — Suit for purchase money — Fraud — Actions.
    An action of assumpsit cannot be maintained to recover a balance of purchase money due on a contract for the sale of land, where the pleadings and evidence show that the purchase money was paid and settled for, either in money or bonds, accepted by the grantor in the deed, and retained by him, if it appears that the ground of the plaintiff’s action was that certain of the bonds were worthless, and had been accepted by the grantor under false representations. Under such circumstances the plaintiff’s remedy is an action in tort for the fraud.
    Argued April 16, 1912.
    Appeal, No. 230, Jan. T., 1912, by plaintiffs, from order of C. P. Clearfield Co., Dee. T., 1909, No. 224, refusing to take off nonsuit in case of Elizabeth Ann McElwee and Mary E. Carroll, Executrices of Thomas McElwee v. M. I. McCreight.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Mosohzisker, JJ.
    Affirmed.
    Assumpsit to recover balance of purchase money under a contract for the sale of land. Before A. O. Smith, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      H. C. Campbell, with him J. C. Long, for appellant.
    The action was properly brought: Duffield v. Rosenweig, 144 Pa. 520; Miller v. Rapid Transit Co., 181 Pa. 622; Rumsey v. Shaw, 25 Pa. Superior Ct. 386.

      A. L. Cole, with him L. E. Boyer, for appellee.

      May 22, 1912 :
   Opinion by

Mr. Justice Mestrezat,

Thomas McElwee, a man of seventy-two years of age, gave a six months’ option on his one hundred and twenty-seven acre farm to J. S. Ross and J. A. Mc-Creight, who subsequently assigned the option to M. I. McCreight, the defendant. The option was accepted and on October 24, 1903, a deed was delivered to M. I. McCreight conveying the land optioned by the decedent. Twenty dollars were paid at the time of the option, and on delivery of the deed the balance of the purchase money was paid as follows: forty-nine hundred and eighty dollars by a check, and the remaining five thousand dollars by the delivery to the decedent of three thousand dollars of the B. & S. Railroad Company bonds, and two thousand dollars of the Continental Leather Company bonds.

Thomas McElwee died on November 4, 1904. In October, 1909, his executrices brought this action. The statement avers, inter alia, that the consideration for the land sold was to be paid in cash, that at the time the bonds were offered as part payment McElwee objected to receiving them because he was ignorant, unacquainted with business, and had no knowledge of the value of the bonds, that defendant represented and stated that the bonds were as good as gold and were better to him than the money, that in order to induce McElwee to take the bonds, the defendant, “guaranteed the bonds of the Continental Leather Company, Nos. 314, 316, 317 and 319 for five hundred ($500.00) dollars each, dated July 1, 1903, to be as good as gold,” that relying upon the truth of these representations McElwee accepted the four bonds in part payment for the land, and that the bonds were at that time and are utterly worthless. It is further averred in the statement that as soon as the plaintiffs learned the facts attending the delivery of the bonds to McElwee, they offered to return them to the defendant and demanded payment of the two thousand dollars, being the balance of the consideration for the land sold by McElwee to the defendant. Finally, it is averred in the statement that the snm of two thousand dollars with interest thereon from the date of the delivery of the deed remains due and unpaid, and “that the plaintiffs bring this action against the defendant, M. I. Mc-Creight, to recover the sum of two thousand dollars, being balance of purchase money due on said land, together with interest thereon from the date of the delivery of the deed, which sum the plaintiffs claim still remains due and unpaid.”

On the trial of the cause the plaintiffs sustained the averments in the statement as to the land sold, the price to be paid, the delivery of the deed, and the payment of the consideration, partly in money and partly by the bonds. There was also evidence offered by the plaintiffs which would have warranted the jury in finding that McCreight made the representations and guaranty of the bonds as alleged in the statement. While there was proof that the Continental Leather Company bonds were worthless, the evidence failed to show that McCreight had knowledge of their worthlessness at the time they were negotiated to McElwee in 1903. At the close of the plaintiffs’ case the defendant moved for a compulsory nonsuit alleging as one of the reasons that the plaintiffs having declared for a balance of purchase money due on a contract for the sale of land and having proven that the purchase money was paid and settled for, either in money or bonds accepted by the grantor in the deed and retained by him, there could be no recovery in this case by his personal representatives. A nonsuit was granted which the court subsequently refused to take off. The plaintiffs have appealed.

While the statement avers sufficient matters on which an action for tort would lie, it is clear that the present suit in assumpsit was brought, as the statement declares, to recover the balance of the purchase money due on the land sold. The statement clearly and distinctly avers that McElwee tendered and delivered a deed to McCreight conveying the land, that the consideration was paid partly by check, partly by the delivery of B. & S. Railroad Company bonds, and partly by the four Continental Leather Company bonds which McElwee “did accept in part payment for said land.” These averments were supported by the evidence and were not contested by the defendant. It is, therefore, manifest that the entire transaction as to the sale of the land was completed and closed, the consideration was paid, and the deed was delivered. The plaintiffs, therefore, are not now in a position to deny, what they aver in their statement and support by their evidence, that the Continental Leather Company bonds were accepted in part payment of the land sold, which made the consideration in full agreed to be paid by the defendant to the deceased. It needs no further consideration or argument to show that under the facts averred in the statement and supported by the uncontradicted evidence, that this action, brought to recover a balance of the purchase money, cannot be sustained.

If the allegations in the statement as to misrepresentations and warranty of the value of the bonds by Mc-Creight are true, it is apparent that the plaintiffs misconceived their action. The present action, as suggested by the court below, was not brought for a breach of contract of guaranty or warranty, nor for a tort for fraudulent misrepresentations. If such were the basis of the plaintiffs’ claim on which they relied to recover the two thousand dollars, their action should have been in the proper form. The difference between such an action and that to recover a balance due for purchase money is well understood by every lawyer. The learned court below seems to think that there was no proof of fraudulent misrepresentations. Be this as it may, or whatever cause of action the plaintiffs may have arising out of the sale of the land in question, it is clear that under the pleadings and evidence they have shown no right to recover for any balance of the purchase money of the land sold by their decedent to the defendant. If, as the learned counsel for the plaintiffs allege, Thomas McElwee, by reason of his advanced age and ignorance of business matters, was defrauded by McCreight in the manner complained of, there was an appropriate action by which the plaintiffs could have been fully compensated for the alleged injury. We must deal with this action upon the pleadings and proofs as presented. . The nonsuit was properly granted.

The judgment is affirmed.


text:
    Commonwealth to use v. Taylor, Appellant.

      Bond — Trust and trustees — Future liability — Demurrer to statement.

    In an action against sureties upon a bond given to answer for a trustee’s faithful discharge of duty and to properly account for a trust estate, the sureties cannot on a demurrer to the statement, claim exemption from liability because the bond presumptively covered only future losses, where it appears that the trustee was appointed in 1881, filed his seventh account in 1904, gave the bond in suit in 1905, was surcharged as trustee in 1901, and there is nothing in the record to show whether there had been, a default prior or subsequent to the giving of the bond.
    Argued April 17, 1912.
    Appeal, No. 202, Jan T., 1911, by defendant, from judgment of C. P. Hunting-don Co., Sept. T., 1910, No. 22, for plaintiffs on demurrer to statement in suit of Commonwealth to use of Cornelia I. Ashman et al. v. Isaac Taylor, et al.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Assumpsit on a trustee’s bond.
    The plaintiffs filed separate statements of claim. The statement of G. H. Ashman was as follows:
    For that, Whereas, the defendants by their certain writing obligatory, sealed with their seals, duly executed and filed the court here shown (see copy of bond hereto attached and filed in this case, marked exhibit “A”), the date whereof is the 15th day of July, A. D. 1905, according to the act of assembly in such case made and provided, did on the day and year aforesaid, acknowledge themselves held and firmly bound unto the said Commonwealth of Pennsylvania, in the sum of six thousand dollars, for the uses, intents and purposes appointed by law, which writing obligatory was and is subject to certain conditions thereunder written, whereby after reciting to the effect following; that “the condition of this obligation is such, that if the above bounden, Isaac Taylor, Trustee, as above stated, shall and do faithfully execute the powers committed to him by the Orphans’ Court of Huntingdon County, as said trustee, and shall make faithful appropriation of the estate and effect committed to him, and in all things comply with acts of assembly in such case made and provided, then this obligation to be null and void and of non effect, otherwise to be and remain in full force and virtue”; which writing obligatory with the conditions aforesaid therein stated, was duly received by the Commonwealth of Pennsylvania as other and further security of the said Isaac Taylor, who on June 11th, A. D. 1881, had been appointed by the Orphans’ Court of said county, trustee of the estate of Mary Jane Ashman, late of Clay township of said county, deceased, and said bond was duly approved on the 19th day of July, A. D. 1905, with the said W. T. Bell and John C. Taylor, as his sureties in the premises; and after the said Isaac Taylor had been appointed trustee as aforesaid, and the said estate and trust committed to him, he the said trustee took upon himself the discharge of the duties of said trustee, and was then and thereafter trustee of the estate and effects of the said Mary; Jane Ajshman, deceased, and so continued as such trustee on and after the date of the execution and delivery of said additional bond; and thereafter the said Isaac Taylor, as aforesaid, to wit, on January 2, ■1904, filed the 7th account of his said trust in the register’s office of said county, and on which said 7th account an auditor was appointed by the Orphans’ Court of said county, and that said auditor on the 5th day of February, A.' D. 1906, made his report to the said Orphans’ Court; and on May 14, 1906, said auditor’s report having been referred back to the auditor, the auditor presented a supplemental report on said account to said court, under and by which supplemental report the said auditor awarded the sum of $11,156.08% to said G. H. Ashman, which said supplemental report of the auditor was duly confirmed by decree of said court, dated June 30, 1906, and upon appeal to the Supreme Court, from said decree, the Supreme Court on June 3, 1907, affirmed said decree; and finally adjudicated said sum found due the said G. H. Ashman. After said Orphans’ Court, by decree of June 30, 1906, confirmed said supplemental report of the auditor, the said G. H. Ashman on July 19, 1906, procured a certificate from the clerk of the Orphans’ Court of said county of the said amount of $11,156.08%, and filed the same as a lien, in the Court of Common Pleas of Huntingdon County, to No. 128, May Term, 1906, against the real estate of said Isaac Taylor, and after voluntary credits had been entered thereon by the plaintiff, the said plaintiff issued a scire facias on said lien to No. 11, February Term, 1908, against the said Isaac Taylor and Isaac Taylor, Trustee, and on which scire facias, judgment was entered thereon on January 22, 1909, in favor of the plaintiff therein, and against the said Isaac Taylor, and Isaac Taylor, trustee, for the sum of $1,508.61, with interest from date, and costs, which, judgment was unappealed from a final adjudication of the amount due the plaintiff. After the entry of which judgment as aforesaid, a credit of $1,035.-40, out of the proceeds of sheriff’s sale of real estate of said Isaac Taylor was entered thereon.
    Yet the said plaintiff in fact says that the said Isaac Taylor, did not faithfully .discharge all the duties required of him as trustee, as aforesaid, but on the contrary thereof has broken the conditions of said writing obligatory in this, that the said Isaac Taylor, trustee as aforesaid, did not make faithful appropriation of the estate and effects committed to him and in his hands and custody, as said trustee, before, at the time and after the execution and delivery of said writing obligatory; and that said trustee did not pay over or cause to be paid over to the plaintiff the moneys due and owing to him, on said judgment No. 11, February Term, 1908, entered in said court in favor of the plaintiff, and against the said Isaac Taylor and Isaac Taylor, trustee, for the sum of $1,508.61, with interest and costs thereon, (less said credit of $1,025.40) upon and after the entry of said judgment on January 22, 1909, as aforesaid, for said sum. And he the said plaintiff has been injured by the neglect and refusal of said Isaac Taylor, trustee, to pay over to the plaintiff, the money due and owing on said judgment and the nonperformance by him, said trustee, in that behalf.
    Wherefore an action has accrued to the Commonwealth of Pennsylvania, to demand and have of and from the defendants to the use of the plaintiffs the sum of six thousand dollars. Yet the said defendants, or either of them, though often requested thereto, have not paid said sum (except said credit) to the damage of the plaintiff of the sum of $1,508.61, with interest from January 22, 1909, and costs, subject to the following credit, September, 17, 1909, $1,025.40.

      May 22, 1912:
    The court entered judgment for plaintiffs on del murrer to statements.

      Error assigned was the judgment of the court.

      Thomas E. Bailey and B. W. Williamson, for appellants.
    The sureties were not liable for past losses. Howe v. White, 69 N. E. Repr. 684; State v. Elliott, 57 S. W. Repr. 1087; Lamar v. Walton, 27 S. E. Repr. 715; Montgomery v. Hughes, 65 Ala. 201; Webster County v. Hutchinson, 60 Iowa 721 (9 N. W. Repr. 901); Stern v. People, 96 Ill. 475.

      L. E. Beers and E. E. Waite, for appellees,
    cited: Bennett v. Haley, 142 Pa. 253; Bridgeman Bros. Co. v. Swing, 205 Pa. 479; Fidelity Ins. Tr. & Safe Deposit Co., v. Bldg. & Loan Assn., 17 Pa. Superior Ct. 270.
   Opinion by

Mr. Justice Elkin,

This suit was brought against the principal and sureties on the bond of a trustee. The record does not satisfactorily explain the conditions under which the bond was given, but in view of the pleadings this does not become a vital question in the case. The sureties demurred to the statement without filing an answer. They stand upon the legal position that the averments in the statement of claim do not disclose a cause of action against the sureties. This position is asserted upon the ground that the facts averred do not show a default by the principal after the execution and approval of the bond, and that the sureties are not liable for defaults which may have occurred prior to that time. To this contention there are two answers: First, it is averred that the trustee “did not make faithful appropriation of the estate and effects committed to him and in his hands and custody, as said trustee, before, at the time and after the execution and delivery of said writing obligatory”; and, second, such a defense, if good at all, depends upon the facts, which should be set out in an affidavit of defense. The facts averred in the statement made out a prima facie cause of action, which required a defense to be set up. This was not done. The demurrer admitted the facts and gave sufficient warrant for the entry of judgment by the court below. The learned counsel for appellants invoke the rule that bonds of the character involved in this case should be construed as intended presumptively to cover future losses, and not past defaults, unless there is something in the bond itself, or in the surrounding circumstances to indicate a different intention. The bond was conditioned for the faithful discharge by the trustee of his duties, and the sureties undertook to answer for failure of the trustee to “make faithful appropriation of the estate and effects committed to him.” As hereinbefore stated, it was averred that the trustee, before and after the execution of the bond, had failed to make faithful appropriation of the estate committed to him. There is nothing in this record to show when the default in fact occurred. The trustee was appointed in 1881 and filed in 1904 his seventh account. The bond in suit was given in 1905. The litigation which resulted in surcharging the trustee did not terminate until 1907. There was no adjudication of the rights of the parties up to that time, and no one could say whether there had been a prior default. In this state of the record, the sureties are not in position to deny their liability upon a bond given to answer for the trustee’s faithful discharge of duty and to properly account for the trust estate. This view makes it unnecessary to discuss the general liability of sureties on bonds of this character.

Judgment affirmed.