text:
    Dale, Appellant, v. City of Scranton.

      Municipal contracts — Payment by assessments — Laches in collection— Interest.

    1. Where a city enters into a contract with a contractor for the paving and grading of streets, and it is provided in the contract that the fund for the payment at the contract price is to be derived from assessments on property benefited “and that the city is to be liable to the contractor only for the amounts actually collected from said assessments as the same are collected,” and the city delays for four years and more after the work is completed in making the collections, it will be liable to pay the contract price out of its general funds although it may have filed liens and issued writs of scire facias within the time prescribed by law.
    2. In such a case the contractor is entitled to interest from the date of the completion of the work.
    Argued Feb. 22, 1911.
    Appeal, No. 341, Jan. T., 1910, by plaintiffs, from order of C. P. Lackawanna Co., Jan. T., 1908, No. 983, in sustaimng exceptions to report of referee in case of H. G. Dale and Sarah Allis Grant, Admimstrators of M. H. Dale Estate, v. City of Scranton.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Exceptions to report of H. R. Yandeusen, Esq., referee.
    The referee found the facts, inter alia, as follows:
    A contract was entered into by the city of Scranton with M. H. Dale on July 30, 1902, for the paving and curbing, including other work incidental thereto, of the portions of certain streets under the provisions of an ordinance.
    The contract between M. H. Dale and the city of Scranton contained the following provisions: “In consideration whereof the City of Scranton agrees so far as collections shall be made from assessments as hereinafter mentioned to pay the said contractor for said work as follows: [Here follows schedule of prices for various items of work as set forth in the proposal of said contractor.] It is further expressly understood and agreed that the fund for the payment of the above contract price is to be derived from assessments on property benefited by the work; and that the city is to be liable to the contractor only for the amounts actually collected from said assessments as the same are collected.”
    M. H. Dale simultaneously with the execution of said contract executed and delivered to the city of Scranton his bond in one-half the sum of the contract price with approved sureties conditioned upon the faithful performance of the work contracted for and keeping said paving in repair for a period of five years from its completion.
    Dale, July 28, 1901, commenced work under this contract under the supervision of the Department of Public Works, and all of said work was completed and accepted by the city on January 25,1904.
    The ordinance provided by secs. 4, 5 and 6 that assessments to pay for the work should be made by the chief engineer against abutting properties according to the foot front rule; and that said assessments should be payable in five equal installments, the first installment to become due and payable thirty days after the commencement of the work and the balance in four equal annual installments thereafter; said installments to bear interest at the rate of six per cent per annum, commencing thirty days after the commencement of the work until paid.
    The proper officers of the Department of Public Works proceeded to make assessments against the abutting properties in accordance with secs. 4 and 5 of the ordinance, and the schedule of assessments as finally ascertained and determined show a total assessment to pay the cost of the work amounting to $43,791.63.
    The city treasurer and afterwards the city solicitor of the city of Scranton, proceeded to make collections of said assessments as authorized by the ordinance.
    The city solicitor on June 28, 1904, filed liens against all properties, the assessments against which for said work had not been paid at that time.
    The city controller was furnished estimates by the chief engineer showing that the amount of work done under the contract was as follows: Partial estimate, June 30, 1903, $19,554.18, final estimate, January 25, 1904, $23,382.45; that the sum of $855 was charged to the contractor’s account as costs of inspection; and that the total amount due contractor for all work was $42,936.63.
    Prior to January 25, 1904, payments were made to . M. H. Dale on account of said contract aggregating $9,804.50; that from January 25, 1904, to July 8, 1909, inclusive, $22,111.95 has been paid to M. H. Dale or his representatives and all of the amounts collected by the city from the assessments levied have been so paid over to the contractor, or his representatives.
    • The liens filed for all of the assessments not yet collected have been duly revived by writs of scire facias and the lien thereof continued against the abutting properties, the last sci. fa. being issued June 10,1909.
    The referee reported in favor of the plaintiff; but on the subject of the claim of interest reported as follows:
    ' It is contended by the plaintiff that inasmuch as the contractor was to be paid from the assessments levied for the work, and as these assessments bore interest from thirty days after the commencement of the work, the contractor is therefore entitled to interest on the total contract price dating thirty days after the commencement of the work.
    This position seems untenable. The city agreed to pay the contractor a specific sum of money to be afterwards determined. It provided that this sum should be payable only from a certain fund, to wit, the assessments levied under this same ordinance. If the city by prompt collection of assessments had created a fund sufficient to pay the contractor and had then paid the same over, its obligations thereunder would have been discharged.
    It seems that if the contractor is to receive all and only such sums as the city collects from these assessments, then there is no basis at all for the present action. The plaintiffs by bringing this suit have virtually abandoned their claim against the assessments as a fund for payment, and say that inasmuch as the city has failed to get money into this fund sufficient to pay the contract price, it should pay them from the general revenues the balance due on the contract, irrespective of any amounts or the interest thereon which the city may hereafter collect from these assessments.
    Accordingly the question of interest on the assessments is in no way involved in this case, it being a matter exclusively between the city and the assessed property owners. The fact that the amount collected from this source is designated as a fund for the payment of the amount due the contractor cannot alter the other provision of the contract that nothing was due the contractor until the completion of the work, and the legal conclusion to be drawn from the same that the balance due ought to bear interest only from that date.
    The referee directed judgment to be entered in favor of the plaintiffs in the sum of $16,625.13, with interest from July 8, 1909.
    The court sustained defendant’s exceptions to the referee’s report and directed judgment to be entered for the defendant. Plaintiffs appealed.

      May 17, 1911:

      Errors assigned were in sustaining defendant’s exceptions and overruling plaintiffs’ exceptions to the report and in directing judgment for the defendant.

      M. J. Martin and A. D. Dean, for appellants.
    The city was liable for the unpaid assessments: Barber Asphalt Paving Co. v. Harrisburg, 64 Fed. Repr. 283; Gable v. Altoona, 200 Pa. 15; O’Hara v. Scranton, 205 Pa. 142.
    A municipal corporation which contracts to pay for street improvements by assessments on abutting property, is primarily liable to pay the contract price itself, if it is in its power to make such assessments, or if it fails to make them, or if the assessments it attempts to make are void: Barber Asphalt Paving Co. v. Denver, 72 Fed. Repr. 336 (36 U. S. App. 499); Cummings v. Brooklyn, 11 Paige, 596; Commercial Nat. Bank v. Portland, 24 Ore. 188 (33 Pac. Repr. 532); Denny v. Spokane, 79 Fed. Repr. 719.
    There is nothing in the ordinance which authorizes the city treasurer or solicitor to waive the payment of the interest accrued from thirty days after commencement of the work. Nothing to indicate any person or object to which this interest shall be paid other than to the contractor.

      David J. Davis, city solicitor, for appellee.
   Opinion by

Mr. Justice Elkin,

This suit ivas brought to recover the balance due upon a municipal contract for the paving and grading of certain city streets. An ordinance, duly passed and approved, provided for the street improvement. A contract was entered into between the contractor and the city specifying the terms and conditions upon which the work was to be done and how payment should be made. It was expressly provided in the contract that the city should only be liable to the contractor for the amounts actually collected from assessments upon property benefited by the improvement. The language of the contract in this respect is as follows: “It is further expressly understood and agreed that the fund for the payment of the above contract price is to be derived from assessments on property benefited by the work; and that the city is to be liable to the contractor only for the amounts actually collected from said assessments as the same are collected.” The defense is that the city has not yet collected all of the assessments from the property benefited and that to the extent of the uncollected assessments there was no obligation upon the city to pay at the time the suit was instituted. The ordinance was passed and approved in 1901. The contract was executed June 30, 1902, and the work commenced the following month. It was completed in a manner satisfactory to the city authorities in July, 1904. It is conceded that a large balance remains unpaid but it is contended that this suit was prematurely brought because under the terms of the contract the city was not liable to pay until the assessments are collected from the owners of the properties benefited. The contractor is now dead and the administrators of his estate brought suit to recover the balance due on the contract upon the theory that the city by its negligence in collecting the assessments made itself liable for the entire contract price. In their essential features these facts present a case similar in principle to a number of cases decided by this court. The city solicitor concedes that under our decisions the city would be liable to the contractor under the following circumstances: (1) In the event of failure to make valid assessments; (2) upon failure to file liens within the proper time; (3) failure to issue writs of scire facias within five years. The cases do so hold. Where a city issued bonds to pay the cost of paving, and it was provided that the bonds shall be payable only out of assessments levied on and collected by the city from property owners, the city is liable to the bondholders for loss resulting to them by reason of negligence in filing liens, or in failing to issue writs of scire facias upon the liens when filed: Dime Deposit & Discount Bank v. Scranton, 208 Pa. 383. See also Gable v. Altoona, 200 Pa. 15, and O’Hara v. Scranton, 205 Pa. 142. We think the principle of these cases rules the case at bar. The, answer óf the city is that in the present cáse liens were filed and writs of scire facias issued within the time prescribed by law. This, it is asserted, was a technical compliance with the rule and nothing more is required. We cannot adopt this view. Such an adherence to the letter would destroy the spirit of the rule. The primary duty rested upon the city to file the liens and collect the assessments, and the contracting parties covenanted upon this basis. The contractor who in good faith completed the work had a right to insist that the city be diligent in collecting the assessments, which means colléction within a reasonable time. If the city had neglected to file the claims within the statutory period, or had failed to issue writs of scire facias within the time prescribed by law, it would have been liable under the authorities cited. So, too, if the liens were not pressed to collection within a reasonable time, the city failed in the performance of a duty resting upon it as the basis of the contractual relation existing between the parties, and the contractor under such circumstances may sue for the balance due upon the contract. It would be most unconscionable to permit the city- to stand idly by for a period of four years and more, either refusing or neglecting to do its duty in the collection of the assessments, and then to say to the contractor you have no redress except to await the pleasure of the municipal authorities who in their own good time may of may not press the claims to collection. While the contract provided that the city was only liable to the extent of the assessments as they were collected, the positive duty, from which nothing but performance will absolve it, rested upon the city to file the claims and make the collections. The city, and not the contractor, had this power. It must be held to the utmost good faith in dealing with such a situation. Failure to collect for four, five or six years without reasonable excuse does not show such diligence or good faith as the law requires, and was in violation of its duty to collect within a reasonable time. Under these circumstances the city must be held to have waived its right to withhold payment until the assessments are collected and became liable to pay upon demand by the contractor. When payment was refused suit was properly brought.

The interest question is not free from difficulty, but after a careful review of the findings of the referee we have concluded in view of all the circumstances that the conclusion reached by him should not be disturbed.

Judgment reversed and record remitted with instructions to the court below to enter judgment as recommended by the referee


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Merritt, Appellant, v. Poli.

      Mechanics’ liens — Subcontractor—Notice of intention to file lien — Service on architect outside of county — Act of June 4,1901, P. L. 431 — Person in possession of building.

    1. Service by a subcontractor of notice of an intention to file a mechanic’s lien upon the architect of the owner outside of the county where the building is situate is not a sufficient service to meet the requirements of sec. 8 of the Act of June 4,1901, P. L. 431.
    2. On the trial of a scire facias sur mechanic’s lien by a subcontractor where the plaintiff claims that he served notice of intention to file a lien upon the person in possession of the building, all the evidence tending to show the service of the notice, upon whom the service was made, and as to whether the party served was in possession, should be received. Evidence of this character must of necessity be introduced step by step; and it is error to exclude offers bearing on the question as a whole on the theory that it is necessary to first establish the fact that the party served was in actual possession before proof of service and other incidental matters can be admitted in evidence.
    Argued Feb. 22, 1911.
    Appeal, No. 366, Jan. T., 1910, by plaintiffs, from order of C. P. Lackawanna Co., March Term, 1908, No. 983, refusing to take off nonsuit in case of Merritt & Company v. Sylvester Z. Poli, reputed owner of the Poli Theater and Frank T. Ricca, contractor.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Scire facias sur mechanic’s lien. Before O’Neill, J.7
    At the trial the case turned on whether a notice of an intention to file a lien by the plaintiff, a subcontractor, had been served either upon the architect of the owner in accordance with the requirements of the act of 1901, or upon a person in possession of the building.
    When William Ingram, a witness for plaintiff, was on the stand, the following questions were asked him:
    “Q. I show you a paper and ask you if you had that paper with you at that time, or if that is an exact copy of the paper that you had? ” 1
    Judge Kelly: We object to the question as incompetent.

      “A. This is a copy of the paper.”
    Judge Kelly: We ask that the answer may be stricken out.
    The Court: It may be stricken out.
    Judge Vosburg: “Q. Can you tell whether this is one of the papers that you had with you? A. Yes, this is a copy of the notice.”
    Judge Kelly: We ask that that be stricken out.
    The Court: It may be stricken out.
    Exception [4].

      “Q. What efforts did you make to find Mr. Poli when you got to Scranton, Sylvester Z. Poli?”
    Mr. O’Malley: We object to that.
    The Court: The objection is sustained.
    Exception [5].
    “Q, Did you inquire from Frank Ricca, one of these defendants, as to the whereabouts of Mr. Poli that day?”
    Mr. O’Malley: We object to that as grossly leading and asking for hearsay testimony.
    The Court: The objection is sustained.
    Exception [6].
    “Q. Did you talk'with Frank Ricca that day? A. I did. Q. Did you ask him anything about Mr. Poli? A. I did.”
    Mr. O’Malley: We object to that as immaterial, irrelevant and incompetent.
    The Court: The objection is sustained.
    Exception [7].
    Judge Vosburg: I offer to show by the witness that he made inquiries at the theater from the person in charge and from Frank Ricca as to the whereabouts of Sylvester Z. Poli, and was told by them that he was then absent from the state and was in Connecticut.
    Judge Kelly: That is objected to as incompetent, irrelevant and immaterial, vague and indefinite, especially that part of it which refers to somebody in charge, which is a statement of a conclusion by the counsel rather than an offer to show facts by the witness.
    The Court: Objection sustained.
    Exception [8].
    “Q. Go on and tell what else you did? A. He said Mr. Poli—
    Mr. O’Malley: We ask that this witness be cautioned about giving the conversation.
    The Court: He cannot tell what was said by some person unknown.
    Exception [9].
    “Q. Omitting the conversation, what did you do? A. I handed this paper to the gentleman in charge.”
    Judge Kelly: I move to strike that out, the words “in charge,” as incompetent.
    The Court: That may be stricken out.
    Exception [10].
    The plaintiff made the following offers:
    Judge Vosburg: We now offer in evidence the notice identified by the witness:
    Judge Kelly: The offer of the paper is objected to as incompetent, irrelevant and immaterial, there being no proof that it is a copy of the paper left at the Poli Theater, and there being no proof that there was any paper at the Poli Theater .served in the manner required by the act of assembly.
    Judge Vosburg: We offer to follow this by the testimony of Mr. Merritt showing that this is an exact copy of the paper.
    The Court: The objection is sustained. As I understand the witness he does not know the contents of the alleged paper he left with somebody, and he does not know the contents of the copy of the paper.
    Exception [11].
    Judge Vosburg: I now offer in evidence the paper identified by the witness.
    Judge Kelly: We object to the offer for the reason that the paper offered has not been proven to be a copy of the paper left at Mr. Westover’s or at least alleged to have been left at his office, or a copy of the paper left at the Poli Theater; for the further reason that it is irrelevant, immaterial and incompetent, because the leaving of a paper at the architect’s office in Philadelphia, or the leaving of a paper in the manner testified to by the preceding witness, does not constitute a notice under the requirements of the acts of assembly.
    The Court: The objection is sustained.
    Exception [12].
    The following questions were asked the witness, James S. Merritt:
    “Q. Mr. Merritt, from the examination you made of those three papers, are you prepared to state as a fact whether or not they are correct copies, whether this is a correct copy of the two papers you signed and handed to Mr. Ingram?”
    Judge Kelly: We object to that as asking the witness for a conclusion, and incompetent.
    The Court: The objection is sustained.
    Exception [13].
    “Q. Will you from your examination state to the court and jury whether or not this paper is a correct copy of the two papers that you gave to Mr. Ingram? ”

      Judge Kelly: That is objected to for the same reason.
    The Court: Objection sustained.
    Exception [14].
    The plaintiff made the following offer of proof while witness Edward Wager-Smith was on the stand.
    Judge Vosburg: We offer to show by the witness on the stand that he was well acquainted with Albert E. Westover, the architect named in the contract offered in evidence in this case; that he had in 1907 throughout the whole year an office in the Keith’s Theater Building in the city of Philadelphia; that the location described by Mr.. Ingram is the correct location of the office.
    Judge Kelly: We object to that as immaterial and irrelevant.
    The Court: I sustain the objection.
    Exception [15].
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned among others were (1, 2) refusal to take off nonsuit; (4-15) rulings on evidence, quoting the bill of exceptions.

      George Quintard Horwitz and A. A. Vosburg, with them Clarence Ballentine, for appellant.
    The following cases express the views of this court upon the dangers of going far afield to get other than a clear meaning out of an act, whose language is so plain that there can be no misunderstanding: Pittsburg v. Kalchthaler, 114 Pa. 547; Haddock v. Com., 103 Pa. 243; Thirsk v. Evans, 211 Pa. 239; Este v. R. R. Co., 27 Pa. Superior Ct. 521; Day v. Penna. R. R. Co., 224 Pa. 193; Thaler v. Construction Co., 40 Pa. Superior Ct. 331; Com. v. Hufnal, 4 Pa. Superior Ct. 301; Corry v. Corry Chair Co., 18 Pa. Superior Ct. 271; Lofink v. Schuette, 14 Pa. Dist. Rep. 558; Langenheim v. Anschutz-Bradberry Co., 2 Pa. Superior Ct. 285; Stoner v. Hileman, 27 Pa. C. C. R. 513; Haas v. Hay, 16 Pa. Dist. Rep. 504.

      May 17, 1911:
    The service upon the person in possession at Scranton was good, sufficient and legal: Vandevort & Co. v. Wheeling Steel & Iron Co., 194 Pa. 118; Dixon v. Daub, 17 Pa. Superior Ct. 168; Mason v. Ammon, 117 Pa. 127; Stull v. Weigel, 20 W. N. C. 98; Walker v. Converse, 148 Ill. 622 (36 N. E. Repr. 202); Walters v. People, 21 Illinois, 178; Webb v. Rhodes, 28 Ind. App. 393 (61 N. E. Repr. 735).

      J. P. Kelly, of O’Brien & Kelly, with him Welles & Torrey, Warren, Knapp & O’Malley and John Memolo, for appellees.
   Opinion by

Mr. Justice Elkin,

The answer to the question involved in this controversy depends upon whether there was proper service of notice of an intention to file a lien by a subcontractor. Section 8 of the Act bf June 4, 1901, P. L. 431, requires a subcontractor, intending to file a claim, to give the owner written notice to that effect. What the notice shall contain and when it shall be served are provided for in the statute, which also contains the following provision: "Service may be made personally on the owner anywhere; but, if. he cannot be served in the county where the structure or other improvement is situate, such notice and statement may be served on his architect or agent, or the party in possession of the structure or other improvement, and if there be no architect, agent or party in possession, it may be posted on the most public part of the structure or other improvement.”

In the present case there was no personal service upon the owner and this question may therefore be eliminated. There was service of notice upon the architect while in the city of Philadelphia outside of the county in which the building is located. In addition to the service upon the architect there was service in the county upon a person alleged to be in possession, and the appellants rely upon one or both of these services of notice as meeting the statutory requirements. The learned court below held that service upon the architect must be made in the county where the building is located and that service in Philadelphia was not sufficient. Appellants contend that service upon the architect may be made anywhere just as it can be upon the owner. This is a sharply defined issue and there is no decided case squarely ruling the question. The act does not provide for service upon the architect anywhere as it does in the case of the owner. In such cases it is important to keep in mind the fact that we are dealing with statutory liens against real estate. The proceeding is in rem and not in personam. The records of the county contain the information and data upon which the lien depends. It is true that an exact copy of the notice required by sec. 8 need not be set out in the claim, but such notice is an essential prerequisite to the filing of the lien and may always be inquired into upon the trial: Thirsk v. Evans, 211 Pa. 239. Service of this notice must be made in the manner prescribed by the statute, and failure to do so defeats the right to recover upon the claim filed. Inasmuch, therefore, as the lien is against the structure, the situs of which fixes the jurisdiction in which it becomes operative, it is but reasonable to hold that the legislature intended that the acts and things required to be done should take effect in the county where the building is located unless it is expressly provided that they may be done outside of the county. This is especially true as to the service of notice of an intention to file a lien. The act of 1901 does expressly provide for the service of notice upon the owner anywhere he may be found, but there is no such provision as to the architect, or agent or party in possession. The act provides that the service may be made on the architect, or agent or party in possession, “if he (the owner) cannot be served in the county where the structure or other improvement is situate.” It would do violence to the legislative intention as indicated by the language used to hold that service might be made upon the architect or agent anywhere. The architect, agent and party in possession are all coupled together in the same phrase and should be treated in the same way. It could scarcely be .seriously argued that the party in possession could be served outside the county, and, if he could not be so served, why should a different rule be applied to the architect or agent who stand upon the same statutory plane with respect to the service of notice? If the legislature intended to authorize the .service of notice upon the architect or agent outside of the county, it is not too much to require that it be done by language so plain as to leave no doubt about its meaning. We therefore hold that service of notice of an intension to file the lien upon the architect in the city of Philadelphia was not sufficient to meet the requirements of the act in this respect.

It is contended for appellants that there was service of notice upon a person in possession of the building. If such a service was in fact made, it would be sufficient. The proofs show that the notice was served upon a person in the building and the question to be determined is whether the person so served was “a party in possession” within the meaning of the act. This is largely a question of fact for the jury although when all the facts are ascertained it may be that the court would be warranted in saying that the service was not made upon the party in possession. It goes without saying that it is not every person in and around a building who may be regarded as a party in possession. However, in the present case appellants were denied the opportunity to prove the facts upon which they rely to show service upon a party in possession. The trial judge upon objection refused to admit many offers of testimony tending to establish the necessary facts. In this respect we think there was error. These offers were excluded largely on the theory that it was necessary to first establish the fact that the party served was in actual posesssion before proof of service and other incidental matters relied on could be admitted in evidence. Holding to this strict rule many of the offers were excluded. Evidence of this character must of necessity be introduced step by step. It might very well be that the testimony excluded in each offer would be insufficient standing alone to show service upon a proper person, but when supplemented by other evidence it might be sufficient to warrant a finding that service was made on a party in possession. At least appellants were entitled to prove all the facts tending to show that notice had been in fact served and that upon a party in possession. As we review the record this opportunity was not given appellants. As the record stands, with so many offers of testimony excluded, we cannot say as a matter of law whether the person served was a party in possession or not. Under these circumstances it will be necessary to reverse the judgment in order that appellants may be afforded an opportunity to prove their case. When the proofs are all in it will then be for the court or the jury, as the ease may be, to say whether the service of notice was made upon a proper person. These observations apply to the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth assignments of error. In so far as any of these offers relate to service upon the architect, they were properly excluded, but they should have been received as bearing upon the question of service upon the party in possession. When the case is again tried all offers of testimony should be confined to the one question of showing service of notice upon a party in possession. In this connection it is competent to show what efforts were made to serve the owner, and why these efforts were not successful.

Judgment reversed and a venire facias de novo awarded.


author: Per Curiam,

text:
    Moyer v. Rentschler, Appellant.

      Wills — Estate in fee simple — “Children”—“Descend.”
    Testatrix directed as follows: “I do hereby bequeath and devise all my real estate and personal property unto my two grandsons,” adding that they “are to receive all my property both personal and real estate, share and share alike with the desire and wishes that they are to take good care of the same until the time of their death.” In the next paragraph she directed, “After the death of my grandsons, as aforesaid, said property is then to descend or go into the possession of their children .... provided they have some.” The grandsons had no children at the date of the will, but did have “children” living at the time of testatrix’s death. Held, that the grandsons took a fee simple estate in the realty.
    Argued Feb. 27, 1911.
    Appeal, No. 220, Jan. T., 1910, by defendant, from judgment of C. P. Berks Co., May T., 1910, No. 49, for plaintiffs on case stated in suit of William D. Moyer and Oscar A. Moyer v. John F. Rentschler.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    It appeared from the case stated that plaintiffs were the grandsons of Veronica Klahr, and that they had agreed to sell the real estate in question to John F. Rentschler, the defendant.
    Endlich, P. J., filed the following opinion:
    By her will Veronica Klahr gave to her grandsons William D. and Oscar A. Moyer all her realty and personalty, adding that they “are to receive all my property, both personal and real estate share and share alike with the desire and wishes that they are to take good care of the same until the time of their death.” In the next paragraph she says, “After the death of my grandsons, as aforesaid, said property is then to descend or go into possession of their children .... provided they have some.” They had none at the date of the will, but did have children living at the time of the testatrix’s death. The question submitted is whether the grandsons took a fee simple in the realty or not.
    The words, “I do hereby bequeath and devise all my real estate and personal property .... unto my two grandsons,” certainly import an absolute gift, not to be restrained by the precatory language superadded to it: Boyle v. Boyle, 152 Pa. 108; Bellas’s Est., 176 Pa. 122. What if anything is the effect upon it of the succeeding paragraph above quoted? That question seems to be ruled by Potts v. Kline, 174 Pa. 513. Doubtless, the word “children” is ordinarily a word of purchase; so that the direction that at the death of the first takers the estate is to go to their “children” may be regarded as evincing an intent that the first takers are to have a life estate only: Oyster v. Oyster, 100 Pa. 538. But it may be construed as a word of limitation if the language of the will so requires. Any form of words sufficient to show that the remainder is to go by way of descent to those whom the law points out as the general or lineal heirs of the first takers will enlarge their estate for life to an estate tail by implication, a fee simple under our statute: Pifer v. Locke, 205 Pa. 616. It is to be observed that here there is no gift over should there be no children. Manifestly the gift to them was intended to include the whole line of succession. Moreover, the estate is to “descend” to them. Under Haldeman v. Haldeman, 40 Pa. 29, and other cases, this phrase indicates the character in which they are to take, viz., by inheritance from their parents, and not as a new stock, and thus points to the first takers as vested with an estate of inheritance and to the construction of the word “children” as a word of limitation. It is argued that this effect of the term “descend” is destroyed by the addition “or (i. e., that is to say) go into possession.” But to “descend and go” is the language passed upon in Haldeman v. Haldeman, 40 Pa. 29, and there would appear to be no room for a decisive distinction between the two forms of expression. It cannot be considered that the phrase “descend or go into possession” means anything else than “descend and go to.” Both signify that the estate is to become the property of the persons designated.
    May 17, 1911:
    We have then, in this will, an absolute gift to the grandsons, followed by language which, properly interpreted, confirm the fee simple estate originally given, but which, in no view, can be regarded as effective to destroy it. It is settled by many decisions, in part enumerated in Hie-stand v. Meyer, 150 Pa. 501, 505, and followed in Jeremy’s Est., 178 Pa. 477; Yost v. Ins. Co., 179 Pa. 381; Cassidy’s Est., 224 Pa. 199, and other cases, that where there is a clear gift in a will it is not to be treated as cut down by a subsequent provision not equally clearly and necessarily manifesting a purpose so to do.
    It follows upon every ground that under the will of Veronica Klahr the plaintiffs have a fee simple estate in the realty left by her and involved in this action, and that therefore, according to the stipulation of the case stated, they are entitled to judgment.
    And now, June 25, 1910, judgment is directed to be entered upon the case stated in favor of plaintiffs and against defendant for $2,278.80.

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

      Frank S. Livingood for appellant.

      John M. Frame, with him Charles K. Derr, for appellees.
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the common pleas.


text:
    Urban, Appellant, v. Focht.
    , Negligence — Contractor—Employee of subcontractor.

    An employee of a subcontractor cannot maintain an action against tbe contractor to recover damages for personal injury suffered by the fall of an elevator, installed by the contractor, but not intended for plaintiff’s use, and which he had no right, springing from any relation with the contractor, to use, and which he did use merely as a licensee by permission of the contractor’s foreman.
    Argued Feb. 27, 1911.
    Appeal, No. 34, Jan. T., 1911, by plaintiff, from order of C. P. Berks Co., Aug. T., 1902, No. 83, refusing to take off nonsuit in case of Charles E. Urban, by his next friend and father, Clemens Urban, v. Levi H. Focht.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Endlich, P. J., filing the following opinion:
    The Colonial Trust Co. contracted with defendant for the erection of a building which involved certain work subsequently, by mutual consent, taken out of his hands and given to another party, who engaged the firm of Remppis & Co. to perform a part of it. In the course of its performance by this firm the plaintiff, one of its employees, was injured while using an elevator constructed and operated by the defendant in the prosecution of the work done by him for the use of his employees. The occasion for this was the circumstance that a rope and pulley used by Remppis & Co.’s men for hoisting bolts to the upper floors had been drawn up because the bricklayers had laid boards across the beams, loaded with brick and interfering with the manipulation of the rope. For the purpose of themselves getting to the upper floors Remppis
      & C.o.’s men had been in the habit of using ladders, available for that purpose at the time of the accident. Permission was given plaintiff at his request by defendant’s foreman to use the elevator in this instance to take up the bolts. It was designed only to raise materials. But there is testimony that in order to take up the bolts it was necessary for some one to go along to hold them in position. There were several loaded wheelbarrows on the elevator at the time. Three of Remppis & Co.’s men got on with the bolts. When part of the way up, the elevator broke. The theory upon which this action was brought against defendant is rather vaguely indicated by the declaration as amended the second time, in the allegations that, being the contractor for the entire structure and engaged in its erection, he “maintained and operated an elevator;” that plaintiff, “in pursuance of his occupation in connection with the erection and construction of the building .... was lawfully upon said elevator within the scope and performance of the duties of his employment in connection with the .... erection and construction of said building;” that thereupon it became defendant’s duty safely to construct and maintain the elevator; that it was improperly constructed and maintained; and that plaintiff’s injury resulted from this circumstance. The nonsuit was asked for and entered on the ground of nonproof of any relation between plaintiff and defendant upon which the responsibility sought to be fastened upon the latter in favor of the former could be legally predicated. „
    It is certain that the relation of employer and employee did not exist between them. It is contended, however, that the firm employing plaintiff was a subcontractor under defendant in the erection of the building. Suppose that to be so. Then, under the doctrine of Johnston v. Ott Bros., 155 Pa. 17, there was a duty resting upon the defendant to do his part of the work in the erection of the building in a manner consistent with the safety of the employees of Remppis & Co., and for an injury occurring to one of them through defendant’s failure to live up to that duty a recovery might be had against him. But there was no obligation upon him by law, and no evidence of any by contract (see Hoffner v. Prettyman, 6 Pa. Superior Ct. 20), to furnish the subcontractor’s employees with special conveniences, such as an elevator, in the performance of their work, or to put at their disposal for that purpose conveniences of that sort provided for his own workmen. Accordingly, had the plaintiff, while on his proper and accustomed way to his work, been hurt by the fall of the elevator, it may be that he would have had a cause of action against defendant: see Alexander v. Steel Co., 189 Pa. 582; Kitchen v. Mfg. Co., 207 Pa. 558. But that was not at all this case. On the contrary, the plaintiff was hurt while using an appliance of defendant’s which was not there for plaintiff’s use, and which the latter had no right, springing from his relation to defendant, to use. True, the defendant’s foreman allowed him to use it. But in making use of that permission plaintiff was a mere licensee, assuming as such the risks involved in the use of the elevator just as it was. It is in the nature of a mere license that its grant creates no duty and imposes no obligation upon the licensor to provide against danger or accident: Batchelor v. Fortescue, L. R. 11 Q. B. Div. 474; Sweeney v. R. R. Co., 92 Mass. 368; Pelton v. Schmidt, 97 Mich. 231 (56 N. W. Repr. 689); Gillis v. R. R. Co., 59 Pa. 129, 141; Maguire v. Magee, 22 W. N. C. 159; Weaver v. Steel Co., 223 Pa. 238, 240.
    In obedience to these principles and authorities it is not seen how the defendant’s application for a nonsuit could properly have been refused; and therefore the rule to show cause is discharged.

      Error assigned was refusal to take off nonsuit.

      W. B. Bechtel, for appellant,
    cited: Johnston v. Ott Bros., 155 Pa. 17; Alexander v. Steel Co., 189 Pa. 582; Kitchen v. Mfg. Co., 207 Pa. 558.

      May 17, 1911:

      Jefferson Snyder, of Snyder & Zieber, with him Wm. J. Bourke, for appellee,
    cited: Gillis v. R. R. Co., 59 Pa. 129; Lygo v. Newbold, 9 Exch. Rep. 302; Ivay v. Hedges, L. R. 9 Q. B. Div. 80.
   Per Curiam,

The judgment is affirmed for the reasons stated in Judge Endlich’s opinion, discharging the rule to take off the nonsuit.


text:
    Hower, Appellant, v. United Traction Company.

      Negligence — Street railways — Alighting from moving car — Contributory negligence — Nonsuit.
    In an action by a woman against a street railway company to recover damages for personal injuries a nonsuit is properly entered on the ground that plaintiff was guilty of contributory negligence in stepping off a moving ear, where the plaintiff testifies that she did not know whether the car was in motion when she reached the back platform, and her witnesses testify that it was then in motion and had gone about thirty feet from the place where it had stopped to receive and discharge passengers.
    Argued Feb. 27, 1911.
    Appeal, No. 36, Jan. T., 1911, by plaintiff, from order of C. P. Berks Co., Jan. T., 1908, No. 53, refusing to take off nonsuit in case of Minerva' Hower, by her father and next friend, Frank B. Hower, and the said Frank B. Hower v. United Traction Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wagner, J.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      May 17, 1911:

      B. Morris Strauss, for appellant.

      C. H. Ruhl, with him R. L. Jones, for appellee.
   Per Curiam,

The plaintiff was injured by stepping off a moving electric car. She testified that she did not know whether the car was in motion when she reached the back platform; her witnesses testified that it was then in motion and had run about thirty feet from the place where it had stopped to receive and discharge passengers. There was nothing to take the case out of the rule that it is negligence per se to step on or off a moving car: Hunterson v. Traction Co., 205 Pa. 568; Boulfrois v. Traction Co., 210 Pa. 263. The nonsuit was properly entered, and the judgment is affirmed.


author: Mr. Chief Justice Fell,

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

      Negligence — Street railways — Summer car — Standing on running board — Contributory negligence.

    1. In an action against a street railway company to recover damages for death of plaintiff’s husband killed by falling from the running board of a summer car, a verdict and judgment for plaintiff will be sustained where the evidence tends to show that the deceased was either thrown from the car by its rapid motion when it entered a switch, or that he was knocked off by striking a standing car on the main track; that the track and switch were so jiear each other that there were but twenty-eight inches between the sides of the cars and but two inches between the running boards; that the car started as soon as the deceased stepped on the running board, and that he fell within eight or ten seconds after-wards, while he was endeavoring to get into the car, which was crowded with passengers.

      Practice, C. P. — Trial—Remarks of counsel — Continuance.
    2. On the trial of an accident case against a street railway company, a witness for the plaintiff was charged with having made false statements to the defendant’s employees in order to obtain information from them and to secure an opportunity to make measurements. Plaintiff’s counsel in his address to the jury used these words: “We had to go to the enemy’s camp to get the evidence; to get justice from this powerful, wealthy and rich corporation.” The trial judge warned the jurors against letting these words have any prejudicial effect upon their minds. Held, that there was no error in refusing to withdraw a juror and continue the case under the circumstances.
    Argued Feb. 28, 1911.
    Appeal, No. 168, Jan. T., 1910, by defendant, from judgment of C. P. Delaware Co., June Term, 1909, No. 72, on verdict for plaintiff in case of Margaret Miller v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,662.50. Defendant appealed.

      Errors assigned were (1) refusal to withdraw a juror; (2) refusal of binding instructions for defendant.

      Thomas Learning, with him E. A. Howell, for appellant.
    It was the duty of the court to withdraw a juror and continue the case upon counsel transgressing the rule so often laid down by this court forbidding inflammatory and improper suggestions to the jury: Saxton v. Pittsburg Rys. Co., 219 Pa. 492; Wagner v. Hazle Twp., 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226; Com. v. Swartz, 37 Pa. Superior Ct. 507.
    Binding instructions for the defendant should have been given because there was no proof of negligence in the mere fact that the man fell from the car: Cline v. Rys. Co., 226 Pa. 586.
    Binding instructions for the defendant should have been given because the decedent was guilty of contributory negligence: McDade v. Phila. Rapid Transit Co., 215 Pa. 105; Burns v. Pass. Ry. Co., 213 Pa. 143.

      May 17, 1911:

      William C. Alexander, with him Frank B. Rhodes, for appellee.
    The appellate court will not reverse a judgment on a verdict because the trial judge refused to withdraw a juror and continue the case on account of improper remarks of counsel to the jury, where it appears that the verdict was not excessive or unreasonable, and that the judge warned the jury not to be influenced or affected in any way by any improper and questionable remarks of counsel: Brenisholtz v. Penna. R. R. Co., 229 Pa. 88; Com. v. Sarves, 17 Pa. Superior Ct. 407; Moore v. Neubert, 21 Pa. Superior Ct. 144; Com. v. Striepeke, 32 Pa. Superior Ct. 82; Shaffer v. Coleman, 35 Pa. Superior Ct. 386; Behrens v. Mountz, 37 Pa. Superior Ct. 326.
    Where a person, without fault on his part, is suddenly placed in a position of difficulty or danger he is not bound to the use of the best judgment in his efforts to extricate himself: Cannon v. Traction Company, 194 Pa. 159; Stover v. Penna. R. R. Co., 195 Pa. 616; Cohn v. May, 210 Pa. 615; McCurdy v. Traction Co., 15 Pa. Superior Ct. 29; McCaw v. Traction Co., 205 Pa. 271; Reber v. Traction Co., 179 Pa. 339; Malone v. R. R. Co., 152 Pa. 390; Bumbear v. Traction Co., 198 Pa. 198.
    There was negligence on the part of defendant: McCurdy v. Traction Co., 15 Pa. Superior Ct. 29; McCaw v. Traction Co., 205 Pa. 271; Reber v. Traction Co., 179 Pa. 339.
   Opinion by

Mr. Chief Justice Fell,

The plaintiff’s husband was killed by falling from the running board of a trolley car. No witness saw him at the moment that he fell, but there was testimony tending to show that he was thrown from the running board by the motion of the car when it entered a switch at a rapid rate of speed or that he was knocked off by striking a standing car on the main track. This track and the switch track were so near each other that there were but twenty-eight inches between the sides of the cars and but two inches between the running boards. The car started as soon as the deceased stepped on the running board and the accident happened within a very brief space of time after-wards, estimated by some witnesses as eight or ten seconds. During this time the deceased was endeavoring to get into the car which was crowded with passengers. This testimony would have justified an inference of negligence on the part of the defendant and it disclosed no negligence on the part of the deceased. It was submitted with the distinct instruction, that a passenger who remains on the running board of a car an unnecessary length of time, when there is room inside, is negligent and there can be no recovery for his injury or death.

The court was asked to withdraw a juror because of the use of the following language by the plaintiff’s counsel in addressing the jury: “We had to go into the enemy’s camp to get the evidence; to get justice from this powerful, wealthy and rich corporation.” The reversals in a number of recent cases where there was an attempt at the trial to obtain an unfair advantage, by offers of irrelevant testimony; by getting before the jury the amount claimed in the plaintiff’s statement; by the use of intemperate language and by appeals to passions and prejudices should be notice to counsel that no verdict obtained by unfair means will be allowed to stand. Among these cases are Wagner v. Hazle Township, 215 Pa. 219; Saxton v. Railways Co., 219 Pa. 492; Hollis v. Glass Co., 220 Pa. 49, and Carothers v. Railways Co., 229 Pa. 558. But where remarks of counsel are objected to as prejudicial, the circumstances under which they were made should be considered. A witness for the plaintiff was charged with having made false statements to the defendant’s employees in order to obtain information from them and to secure an opportunity to make measurements, and the remarks of plaintiff’s counsel were in reply to this charge and in justification of the witness and in comparing the difficulty the plaintiff had in ascertaining the facts with the ease with which they could be presented by the defendant. It does not appear that the remark was made for the purpose of exciting antagonism, and the learned trial judge carefully guarded against any prejudicial effect it might have on the minds of the jurors.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    McGrath v. Thompson, Appellant.

      Negligence — Master and servant — House painter — Safe appliances— Ropes — Tying knot in rope — Duties of foreman.

    1. In an action by a house painter against his employer to recover damages for personal injuries, a verdict and judgment for the plaintiff cannot be sustained where it appears from the testimony that the plaintiff was directed to paint a small circular roof, having a radius of only about eleven feet, that he selected a rope himself from defendant’s shop; that the rope was in good condition; that he asked the foreman to make a loop in the end of the rope and tie a knot for him, and the foreman did so; that he then took the rope, fastening the loop over the knob at the apex of the roof, and continued to paint around the roof for two or three hours, holding the rope in his left hand to support himself, and that in some unexplained manner the knot came untied, and plaintiff fell from the roof, suffering the injuries of which he complained.
    2. An employer is not bound to supervise every detail of the labor of his employee, to prevent injury in the ordinary course of the work, from dangers which might be avoided by the use of ordinary care. The workman must use his own judgment as to the manner of handling appliances which are properly provided, and the use of which is obvious.
    Argued Feb. 28, 1911.
    Appeal, No. 209, Jan. T., 1910, by defendants, from judgment of C. P. No. 4. Phila. Co., June T., 1908, No. 1,954, on verdict for plaintiff in case of John T. McGrath v. James Thompson and William T. Owen, trading as the Philadelphia Iron Works.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Audendried, J.

      May 17, 1911:
    The facts of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,500. Defendants appealed.

      Error assigned was in refusing binding instructions for defendants.

      W. W. Smithers, with him H. A. Talbot, for appellants.—
    There is no evidence that the knot in question was improperly or negligently tied: Staebler v. Warren Ehret Co., 223 Pa. 129; McHugh v. Steel Co., 219 Pa. 644.
    The defendants performed their whole duty to the plaintiff :. Prescott v. Engine Co., 176 Pa. 459; Cregan v. Marston, 126 N. Y. 568 (27 N. E. Repr. 952).
    Wood’s act was the act of a fellow servant: New York, Lake Erie & Western R. R. Co. v. Bell, 112 Pa. 400; Staebler v. Warren Ehret Co., 223 Pa. 129; Miller v. Bridge Co., 216 Pa. 559; Kinney v. Corbin, 132 Pa. 341.
    The plaintiff was guilty of contributory negligence in failing to inspect the knot in the rope he was using, and in failing to see whether or not it was becoming unfastened during the course of work: O’Dowd v. Burnham, 19 Pa. Superior Ct. 464.

      Augustus T. Ashton, with him Jay R. Grier, for appellee.
    Wood was a vice principal at common law: Butterman v. McClintic-Marshall Const. Co., 206 Pa. 82.
    . Whether Wood tied the knot was a question of fact for the jury: Bond v. Penna. R. R. Co., 218 Pa. 34; Dalmas v. Kemble, 215 Pa. 410.
    Plaintiff’s contributory negligence was a disputed question of fact for the jury.
   Opinion by

Mr. Justice Potter,

It is well settled that it is the duty of an employer to .provide suitable appliances with which his employee, exercising due care for his own protection, can perform his duty without being exposed to unnecessary danger. If the appliance be intricate or complicated, and the employee be young or inexperienced, proper instruction in the use of the appliance should be given. But we know of no authority which holds that the employer is bound to supervise every detail of the labor of the employee, to prevent injury in the ordinary course of the work, from dangers which might be avoided by the use of ordinary care. The workman must use his own judgment, as to the manner of handling appliances which are properly provided, and the use of which is obvious.

In the present case it appears that the plaintiff was injured by falling from the roof of a tank which he was painting. The record shows that he made a written statement of the facts of the accident, a few weeks after it occurred. In that statement he says: “On November 19, 1907, we were ordered to go to Twelfth street and Washington avenue to paint a tank there. I took my own rope down from the shop and rigged it myself on top of the tank. We had gotten down to the place about 9 A. m. and worked then until about 11.30 a. m., and I had finished almost all the top of the tank and at that time in some manner unknown to me, I fell from the top of the tank to the roof below. I do not know exactly how the thing happened, as I had almost finished and everything had worked all right up until the time the accident happened.” If the plaintiff had repeated this story exactly on the witness stand, he would have disclosed no right to recover against his employers, the defendants. But at the trial, while admitting everything else contained in the written statement, he denied that he had rigged the rope himself, and said that he asked the foreman to make a loop in the end of the rope, and tie a knot for him; and that the foreman did so. He further testified that he then took this rope to the roof of the tank, and fastened the loop over the knob at the apex of the roof, and that he held the rope in his left hand to support himself as he lay on the roof while painting with his right hand. He continued at this work between two and three hours, when in some unexplained manner the knot came untied or slipped, and the rope came away from its fastening, permitting plaintiff to fall from the roof. No fault was found in the rope; it was sound and in good order; the knot had merely come untied. The theory upon which counsel for plaintiff based his claim to recover was that the defendants were bound not merely to furnish a good rope, but that they were also responsible for the use made of it; that is, for the character of the knot which it was alleged was tied in it by the foreman. If Mr. Wood, the foreman, did tie the knot, which is more than doubtful, under the testimony, he did not, in so doing, represent the defendants as a vice principal, for the act of tying a knot was not incidental to the duties of superintendence, but was merely the performance of a manual act, within the scope of the duties of any workman. This case falls within the principle of Ross v. Walker, 139 Pa. 42, which established the doctrine that it is not the employer’s duty, after having provided materials ample in quantity and quality, to supervise the selection of a part therefrom or its use for some particular purpose. The defendants here were bound to furnish a good sound rope suitable for the purpose. But the manner in which the rope was used, arid the character of knot which might be tied in fastening the rope safely, to meet the needs of the employee, was a matter for himself. Whether he tied the knot in the rope himself, as was set forth in the written statement, or whether it was done by the foreman at his request, as he stated in his oral testimony, made no special difference. In either case the tying of a secure knot was a simple manual act, obviously required, to insure the safety of the plaintiff. While there was a dispute as to who tied the knot in the rope, yet by whomsoever it was tied, the evidence clearly shows that plaintiff took the rope and with his own hands placed it over the knob at the apex of the roof, and continued to use it for more than two hours, during which time it supported him in safety, while he moved about over the roof, in the process of painting. No method has been discovered by which inanimate things will remain precisely as arranged, in any particular position; especially is this true where, as here, the rope in the hands of plaintiff while painting a circular roof, was continually being turned and shifted in its position. Common experience shows that in order to secure safety in the use of appliances, there must be frequent inspection during the process of use, by those who handle them, and adjustments of temporary fastenings may frequently be needed. Knots very commonly and naturally tend to loosen and become untied. The circular roof upon which plaintiff was working was small, and had a radius of only about eleven feet, so that he was working within about six feet of the knot in question most of the time, and it was literally within arm’s reach part of the time. Even a rigid ladder laid flat upon the roof, for the same purpose as that served by the rope, might, as the result of shifting and moving, have slipped from fastenings or supports, at first secure. No one could reasonably doubt that the duty of watching the position of the ladder, for his own protection, would lie upon an employee in such a case. An accident resulting from the misuse, or careless use of rope, or ladder, or any such appliance, is properly chargeable to the failure of the person using it, to exercise proper care for his own safety. We have carefully considered all the evidence in this case, and we find nothing to support the charge of negligence against defendants, or to justify the submission of the question to the jury.

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


text:
    Beck v. Dech, Appellant.

      Church law — Joint ownership of property by two congregations— Trusts and trustees — Corporations.
    Where the possession and management of the joint property of two religious corporations are by their charters and agreement vested in trustees, who are the directors of the corporations, a committee appointed at a meeting of the members of the two congregations has no authority to erect a building on the joint property in opposition to the will of the trustees.
    Argued March 6, 1911.
    May 17, 1911:
    Appeal, No. 242, Jan. T., 1910, by defendants, from decree of C. P. Northampton Co., Dec. T., 1909, No. 2, on bill in equity in case of William P. Beck et al. v. Erwin J. Dech et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Stewart, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree awarding injunction.

      John D. Hoffman, for appellants.

      Calvin F. Smith, of Smith, Paff & Laub, with him Thomas D. Danner for appellees.
   Per Curiam,

The findings of fact which cover twenty-five pages of the record, may in so far as they are material in considering the question raised by the appeal be stated in as many lines. Two unincorporated religious associations became the owners for their joint use of a tract of land on which a church was erected. They adopted rules for the management of the joint property which provided for the election by each annually of trustees and that “Should it become necessary to build a school house or to improve such a building it shall become the duty of both congregations to jointly build or maintain it.” Subsequently each association was incorporated and by the charter of each the management of the corporation was vested in a board of four trustees, and rules were adopted which left unaltered the power and authority of the trustees. In 1908, a movement was started to erect a Sunday school building and the trustees of both churches, acting jointly, called a congregational meeting to ascertain the opinion of the members in regard to the movement, at which meeting it was resolved to procure plans and solicit subscriptions. Other meetings were called in 1909, and it was found the building and improvements would cost about $12,000, and that the subscriptions were less than $4,000. The trustees then decided that it was inexpedient to build. When their action became known, a joint meeting of the congregations was called, at which there was an attendance of seventy-five members out of a total membership of 800, and it was decided to ignore the action of the trustees and to proceed to build, and a building committee was appointed to erect a building. This bill was filed by the trustees of both corporations to restrain the building committee from interfering with the joint property.

The conclusion of law by the court was that the possession and management of the joint property of the corporations was by their charters and agreement vested in the trustees, who were the directors of the corporations, and that a committee appointed at a meeting of members of the congregations was without authority to erect a building. An injunction was accordingly issued. This finding is so manifestly correct, that discussion of it is needless.

The decree is affirmed at the cost of the appellant.


text:
    Mouer, Appellant, v. Cumberland Valley Railroad Company.

      Negligence — Railroads—“Stop, look and listen” — Contributory negligence — Nonsuit.
    Where a man driving a wagon approaches a grade crossing in a borough, stops twenty-four feet from the tracks from which point he had a clear- view for 640 feet in the direction from which a train was approaching, and then starts, and without again stopping, and notwithstanding the warning of the flagman who waved his flag, drives upon the tracks, and is struck and killed by the train which came from the direction in which he looked, no damages can be recovered for his death.
    Argued March 8, 1911.
    May 17, 1911:
    Appeal, No. 29, Jan. T., 1911, by plaintiffs, from order of C. P. Franklin Co., Dec. T., 1909, No. 140, refusing to take off nonsuit in case of Melvin H. Mouer et al. v. Cumberland Valley Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiffs’ father and mother. Before Gillan, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      John W. Hoke, with him J. A. Strife, for appellants.

      Irvin C. Elder, with him D. Watson Rowe, O. C. Bowers and Walter K. Sharpe, for appellee.
   Per Curiam,

In the afternoon of a clear day, a man and his wife seated in a wagon drawn by one horse approached a grade crossing of the defendant’s road in the borough of Chambers-burg, where there were two tracks. They saw a flagman standing in the middle of the street on the opposite side of the tracks with his flag elevated as a warning. The man was familiar with the crossing and stopped his horse when twenty-four feet from the tracks and looked in the direction from which the train came, from which place he had a clear Anew for 640 feet. He then turned his face towards the flagman, smiled or nodded, struck his horse with his whip and attempted to cross. As soon as he started, the flagman waved his flag from side to side. The hind wheel of the wagon was struck on the second rail of the first track by an engine running thirty or thirty-five miles an hour. Both the man and his wife sustained injuries from which they died, the woman on the day of the accident, and the man three days later.

This action was brought by the children of the deceased to recover for the death of both parents. A non-suit was entered because of the contributory negligence of the driver. His negligence was manifest. If it be assumed that the train was not in sight when he started, it was in sight before he reached the tracks and it was his duty to look as he advanced. Moreover, he went on in spite of warning. Two questions were argued on this appeal, one by the appellant, whether the negligence of the driver could be imputed to his wife who was a passenger and one by the appellee, whether the right of action for the death of a wife, given by the Act of April 26, 1855, P. L. 309, to the husband, passes to her children, he having survived her and died without bringing action. The case, however, never reached a stage where the decision of either question became necessary because the plaintiffs failed to establish a cause of action. There could be no recovery without proof of the defendant’s negligence. None was shown. The full measure of its duty was to give timely and adequate notice of the approach of its trains to the crossing. This it did by stationing there a competent flagman, who fully performed his duty. It gave notice in a most effective way to everyone intending to use the crossing. More than this could not be required of it: Custer v. Railroad Co., 206 Pa. 529.

Judgment affirmed.


text:
    Woodruff v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads—“Stop, look and listen” — Death—Presumption — Evidence.
    Where a man is killed at a railroad crossing on a dark night, and no one sees him struck, the presumption is that he stopped, looked and listened at the proper place before attempting to cross. In such a case where there is persuasive testimony that he failed to do so, but no direct proof on the subject by witnesses who saw him continuously as he walked towards the tracks, and the presumption is not rebutted by the circumstances, the question of the deceased’s contributory negligence is for the jury.
    Argued March 13, 1911.
    Appeal, No. 43, Jan. T., 1911, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1909, No. 198, on verdict for plaintiff in case of Lucy B. Woodruff v. Lehigh Valley Railroad Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Fanning, P. J.
    At the trial it appeared that plaintiff’s, husband, John W. Woodruff, was killed on the evening of July 11, 1908, in the borough of Laceyville, Wyoming county, while crossing defendant’s track at a public streét called Church street.
    The facts relating to the accident are set forth in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,340. Defendant appealed.

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

      Wm. Maxwell, for appellant.

      C. M. Culver, with him Paul J. Sherwood, for appellee.

      May 17, 1911:
   Per Curiam,

The single question raised by this appeal is whether the court should have withdrawn the case from the jury. The plaintiff’s husband was killed at night at a street crossing of the defendant’s road where there were three tracks. No one saw him struck by the engine, but a number of witnesses saw him walking towards the crossing and some when very near it. The first track from the side from which he approached was a siding, the second on which he was killed was used for west-bound trains, and the third for east-bound trains. The plaintiff produced testimony tending to show that the night was so dark that objects could not be distinguished at a greater distance than fifty feet, that the train was running at the rate of .thirty miles an hour, without a headlight on the engine and that no notice of its approach was given by bell or whistle or flagman or safety gate or in any manner; that a few seconds before the engine which struck the deceased reached the crossing, a train had passed in the opposite direction on the third track, the noise of which was mingled with that made by the train on the second track. This testimony established the defendant’s negligence without disclosing negligence on the part of the deceased. The presumption was that he stopped, looked and listened at the proper place before attempting to cross, and while there was persuasive testimony that he failed to do so, there was no direct proof on the subject by witnesses who saw him continuously as he walked towards the tracks. Nor was the presumption rebutted by the circumstances. He might have stopped close to the track and have been struck by an engine that was moving ten times as fast as he was walking, which he could not have then seen because of the darkness, nor heard so as to distinguish it from the train on the third track. It is only in clear cases where neither the facts nor the inferences to be drawn from them are in0 doubt that the court may direct a verdict.

The judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Kaufman v. National Lumber Insurance Company, Appellant.

      Appeals — Assignments of error — Failure to answer point — Certificate of trial judge.

    1. Where an assignment of error complains that a point submitted was not answered, and the trial judge files a certificate that the point was actually affirmed by him, and this is not controverted by the appellant, the appellate court will not consider the assignment, if it finds that the point was substantially covered in the general charge.

      Evidence — Photograph—Inspection by jury — Locus in quo.

    2. The appellate court will not review the discretion of the trial judge in refusing to admit in evidence photographs of the locus in quo where the evidence was objected to on the ground that the pictures were taken without proper care by an inexperienced amateur photographer, and that, as the jury had personally visited the ground, the photographs were unnecessary for a proper understanding of the case.

      Appeals — Assignments of error — Evidence—Reference to page of paper-book.

    3. The appellate court will not consider an assignment of error relating to the admission or rejection of evidence, where the appellant has failed to give in the assignment a reference to the page of the paper-book where the matter may be found, in its regular order, as required by rule 31.
    Argued March 13, 1911.
    Appeal, No. 53, Jan. T., 1911, by defendant, from judgment of C. P. Bradford Co.-, Sept. T., 1910, No. 117, on verdict for plaintiffs in case of M. Kaufman and C. Obenauer v. National Lumber Insurance Company.
    Before Fell, C. J., Brown, Potteb, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance.
    Verdict in favor of plaintiffs for $2,309.50.
    Fanning, P. J., in refusing judgment for the defendant, non obstante veredicto, filed the following opinion:
    Plaintiffs purchased a quantity of timber in Wysox township of C. S. Jakway, and caused the same to be manufactured into lumber. Insurance .... was procured thereon January 5,1910, in the National Lumber Insurance Company of Buffalo, N. Y., “for a period of three months from the 6th day of January, 1910, at noon to the 6th day of April at noon, to an amount not exceeding three thousand dollars upon the said plaintiff’s stock of sawed lumber while piled in field on easterly side of road from Gillette bridge to Mercur on Jakway farm in Wysox Township, Bradford County, Pennsylvania,” which said lumber consisting of hemlock, ash, birch, beech, basswood and maple and a small amount of chestnut aggregating 151,000 feet with a market value as claimed of 13,400, was on March 23, 1910, totally destroyed by fire. No question is raised as to notice, proofs of loss, or other preliminary requirements. The principal grounds of defense interposed are: First, that the lumber was not located easterly of the highway leading to Mercur on lands of C. S. Jakway, as set forth in the policy, and, second, that the same was piled in the woods and not in a field. There are two highways leading from Gillette bridge to Mercur, one passing by the Jakway farm buildings, through his improved lands and coming out at the four corners at Mercur where there is located a blacksmith shop, store, post office and dwellings; and the other, easterly of which the lumber was piled, also leading to Mercur, but intersecting the State road about one-half mile west of that place. The court could not hold as a matter of law to which road reference was made in the description, even though the first in some particulars seemed to answer more closely the requirements. It was urged that we were requested to charge that if Jakway owned no field on the road, on the east side of which this lumber was piled, the plaintiff could not recover. We understand this request to mean, and it was urged in the argument, that to meet the requirements of the description, the cleared field must come up to and be immediately adjacent to or abutting on the highway. We do not so understand the wording of the policy. If there was a field easterly of the highway, answering the description even though not abutting, the requirement in that respect would be met. The question whether the highway easterly of which the lumber was piled accorded with the description and was the one designated in the policy was, we think, under all the evidence for the jury to determine. There was testimony that a portion of the lumber piles, varying from a few inches to about one-half of the space occupied by the lumber, projected over on lands of one Gorslina. With reference to this there was a conflict of testimony, and the question of the location of the lumber with reference to the line, if material, was for the jury. Relative to the reasons for a new trial, because of the exclusion of the defendant’s offer to prove that lumber piled in the woods, brush or slashing would not have been insured or was a prohibited risk, would merit serious consideration, but for the fact that in the general charge, and in answer to defendant’s points, the court unequivocally instructed the jury if the lumber was so located the plaintiff could not recover. The use of the general term “field” in the policy was indefinite. Numerous witnesses familiar with the situation described minutely the location of the lumber and character of the surroundings, and the jury were allowed the opportunity of determining this important question by personally viewing the locus in quo. Under the circumstances disclosed we do not feel justified in holding that the conclusion reached by the jury was not warranted by the evidence. The rule for judgment non obstante verdicto is discharged and rule for judgment on the verdict of the jury made absolute, and judgment is directed to be entered thereon.

      Errors assigned were (1) refusal of binding instructions for defendant; (2) qualified answer to point of defendant in which it was left to the jury to determine “the nature of the ‘field’ contemplated by the parties considering the subject of the contract and in the light of all the surrounding circumstances and the sense in which that word is commonly used and understood;” (3) qualified answer to point of defendant as to location of field; (4) alleged failure to answer a point for charge submitted by the defendant, viz., “The burden is upon the plaintiffs in this case, to establish by the preponderance of testimony every ingredient necessary to entitle them to recover in this case, and if the plaintiffs fail to satisfy you by a preponderance of testimony, that the lumber destroyed was located in a field on the easterly side of the road leading from Gillette bridge to Mercur, on the lands of Jakway, and they were the unconditional sole owners of all the lumber claimed to have been burned, then and in that case, your verdict would be for the defendant;” (5, 6, 7) refusal of judgment n. o. v. for defendant, and entry of judgment for the plaintiff; (8, 9) particularly referred to in the opinion of the Supreme Court.
    May 17, 1911:

      Wm. Maxwell, with him Potter & Potter, for appellant.

      Rodney A. Mercur, with him David E. Kaufman and Lilley & Wilson, for appellees.
   Opinion by

Mr. Justice Moschzisker,

The opinion of the court below states the material facts in this case and adequately covers all of the questions raised by the first, second, third, fifth, sixth and seventh specifications of error; it is sufficient to say that we see no merit in any of these assignments; they are all overruled.

The fourth specification complains that the court below failed to answer one of the points for charge submitted by the defendant. Although the record does not contain any reply to the point in question, the trial judge has filed a certificate to the effect that the request was actually affirmed by him. The fact thus certified to is not combated by counsel for the appellant; they simply stand upon the record as sent to this court. It is not necessary to consider this assignment further than to say that so far as the defendant was entitled to have the point answered it was substantially covered in the general charge. Under the circumstances the assignment will not be sustained.

The eighth, specification calls attention to the refusal to admit in evidence certain photographs of the locus in quo offered by the defense. The offer was objected to op the ground that the pictures were taken by an inexperienced amateur photographer, that they were not taken with care, and further, that since the jurors had personally visited the ground and observed the conditions themselves, the photographs were unnecessary for a proper understanding of the case. This was a matter .peculiarly for the trial judge to pass upon in the exercise of his discretion. The assignment is overruled.

The ninth specification goes to the refusal to admit certain evidence offered by the defense for the purpose of showing that the plaintiffs were not the “unconditional and sole owners of the property in dispute.” The offer was objected to for several reasons, one of which was, “the defendant having based his defense specifically upon other grounds is estopped to set up the one claimed in the offer.” This specification as printed in the paper-book is in violation of our rule 31, which provides, “When the error assigned is to the admission or rejection of evidence, the specification must quote the questions or offers, .... together with a reference to the page of the paper-book where the matter may be found in its regular order in the printed evidence or notes of trial. . . . Any assignment of error not according to this rule will be disregarded.” The appellant fails to give a reference to the page where the matter may be found in the printed evidence. When it is considered that each justice of this court is obliged to examine about 400 sets of paper-books during the course of a court year, it will readily be seen that the rule is a highly necessary and important one which the profession must regard. This faulty specification will not be ruled upon, but in passing we will say that we are not at all convinced that the trial judge fell into error in making the ruling complained of: Western & A. Pipe Lines v. Home Ins. Co., 145 Pa. 346.

In considering the various assignments we have not overlooked the terms of the policy, particularly the provision that the property insured was not to be located elsewhere than in the field referred to in the contract, and we have given consideration to the contention of the appellant that the lumber was not piled in a “field.” But we are satisfied that the question of the situation, and whether or not the place could be properly termed a field, were both for the jury, and that they were correctly submitted.

The judgment of the court below is affirmed.


text:
    Hood v. Connell Anthracite Mining Company, Appellant.

      Mines and mining — Anthracite mining — Acts of June 2, 1891, P. L. 176, and May 15, 1898, P. L. 52 — Mine foreman — Superintendent— Foreman acting in dual capacity.

    1. The Act of June 2, 1891, P. L. 176, regulating mining operations in the anthracite field, and the Act of May 15, 1893, P. L. 52, relating to bituminous mines, in so far as they relate to the duties of a mine foreman are practically the same. Protection to the health and lives of those employed in mining operations is the primary purpose of both statutes.
    2. The character of the duties of a mine foreman is not necessarily changed because he may hire or discharge men working under him, or suggest where and in what capacity the men shall work, or how the entries shall be driven, or the mine be developed.
    3. Where a mine foreman does not have the exclusive charge of the interior workings, as a mine foreman, but acts as superintendent of the mine without reference to his duties as mine foreman, and he is negligent while acting in the latter capacity, the owner of the mine may be held liable for the consequences of such negligence. If the evidence is conflicting as to whether a person acts in the dual capacity of mine foreman and superintendent, the question as to the capacity in which he acts is for the jury.

      Argued March 14, 1911.
    Appeal, No. 49, Jan. T., 1911, by defendant, from judgment of C. P. Sullivan Co., Feb. T., 1909, No. 50, on verdict for plaintiff in case of Emma C. Hood v. Connell Anthracite Mining Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband. Before Terry, P.' J.
    At the trial it appeared that Paul Hood, a certified miner, was killed on March 14, 1908, while working in defendant’s mine. His death was caused by the falling in of the roof of one of the chambers. The plaintiff claimed that the accident was caused by the negligence of William E. Johnson as mine superintendent. There was evidence that Johnson, who was the mine foreman, was also employed as general superintendent of the mine.
    The court charged in part as follows:
    Now we are going to leave it to you, gentlemen, to say what the fact is as to whether William E. Johnson was employed in these mines solely in the capacity of a mine foreman, performing only the duties pertaining to that position, or whether in addition to that he was employed by and was acting for the defendant company in a representative capacity, other than the position of mine foreman. Whether he was performing duties for the company, we say, in addition to his statutory duties, in the nature of supervising the work there, and such service as devolves upon the superintendent of the mine. If he was acting solely in his statutory capacity as mine foreman, then the company was not responsible for any negligence upon his part; and if you find that he was employed there simply as mine foreman under the statute that is the end of this case and the plaintiff., cannot recover and you need not consider anything else. If, however, you find that in addition to his statutory duties he was acting in a representative capacity for the company, performing additional and other duties for it, then you will consider whether the company has been guilty of such negligence as will authorize a recovery against it.
    Now this act of assembly which provides for the appointment of a mine foreman, and under which the mining company is not responsible for the mine foreman’s negligence, does not relieve the mine owner of his liability for the unsafe condition of his mine, except when he complies with the act. It does not relieve him if he has knowledge, through his superintendent, that the mine foreman is incompetent and that the mine is unsafe.
    The statute provides the remedy, and it is incumbent upon the owner when, through his superintendent, he finds the existence of unsafe conditions in the mine, to proceed to have those conditions remedied in the manner pointed out in the statute; and if this man W. E. Johnson was acting for the defendent company in a representative capacity, in addition to his statutory duties as mine foreman, then notice to him of the unsafe or dangerous condition of a place in which a miner was working would be notice to the company.
    If W. E. Johnson was acting in this twofold capacity that we have mentioned, as mine foreman under the statute and in a representative capacity for the company, then it was his duty, upon being notified of the unsafe condition of the roof, to take steps to remedy it.
    Verdict and judgment for plaintiff for $4,750. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant and (2) in refusing judgment for defendant non obstante veredicto.

      Seth T. McCormick and E. J. Mullen, for appellant.—
    The case of Wolcutt v. Erie Coal & Coke Co., 226 Pa. 204, is the authority upon which the court submitted this question to the jury. The Wolcutt case does not rule this case for two reasons: (a) The Wolcutt case was one involving the bituminous mining act while the present case arises under the anthracite mining act. (b) The facts in the Wolcutt case were entirely dissimilar to the facts of the present case.
    The failure of Hood to obey the positive mandate of the statute forbidding work to be done, under dangerous conditions, as proved by the appellee’s own evidence, was negligence per se and absolutely bars a recovery in this case: Young v. Railway Co., 100 Iowa, 357 (69 N. W. Repr. 682); Voshefskey v. Coal & Iron Co., 21 N. Y. App. Div. 168 (47 N. Y. Supp. 386).
    The general rule is that where the negligence of the defendant consists of a violation of a statutory duty and hence is called negligence per se, the contributory negligence of the plaintiff or person killed or injured, appears as a defense to an action for damages as in other cases: Krause v. Morgan, 40 N. E. Repr. 886; Queen v. Dayton Coal & Iron Co., 95 Tenn. 458 (32 S. W. Repr. 460, 30 L. R. A. 82); Field v. Chicago, etc., Ry. Co., 14 Fed. Repr. 332; Taylor v. Carew Mfg. Co., 143 Mass. 470 (10 N. E. Repr. 308).

      Chas. M. Culver, with him John G. Scouten and David E. Kaufman, for appellee.
    Johnson was acting in a dual capacity as the evidence clearly showed and as the jury found: Durkin v. Coal Co., 171 Pa. 193; Golden v. Coal Co., 225 Pa. 164; Dempsey v. Coal Co., 227 Pa. 571; Wolcutt v. Coal & Coke Co., 226 Pa. 204.
    Hood relying upon the superior "judgment of this mine foreman and" superintendent, believed that the roof was safe and continued working; each morning before beginning his work Hood tested the roof and found no change for the worse, but thought it was getting better. He was not guilty of contributory negligence: Lake v. Weber, 6 Pa. Superior Ct. 42; Max Meadows Land & Imp. Co. v. Mendinhall, 4 Pa. Superior Ct. 398; Mohney v. Cook, 26 Pa. 342; Reese v. Clark, 198 Pa. 312; Schiglizzo v. Dunn, 211 Pa. 253.

      May 17, 1911:
   Opinion by

Mr. Justice Elkin,

If the rule applicable to bituminous mines as laid down in Wolcutt v. Coal & Coke Co., 226 Pa. 204, applies to anthracite mines, then the question whether Johnson was acting in the dual capacity of mine foreman and superintendent was properly submitted to the jury. The learned counsel for appellant insist that there is a distinction between the Act of June 2,1891, P. L. 176, regulating mining operations in the anthracite field, and the Act of May 15, 1893, P. L. 52, relating to bituminous mines, in so far at least as the duties of a mine foreman are prescribed. A careful examination of the two acts has satisfied us that there is no substantial basis for the distinction attempted to be made. It is a distinction without a difference when the purpose to be served by the statutory requirements of each act is taken into consideration. Protection to the health and lives of those employed in mining operations is the primary purpose of both statutes. Indeed, the phraseology and provisions of both acts in many of their essential and important features are almost identical. Difference in mining conditions in the two fields required the legislation to be adapted to the necessities of mining operations existing in each field. Aside from the provisions relating to these different conditions there is but little, if any, real distinction between the anthracite and bituminous acts. As to the protection intended to be afforded to the health and safety of the men so employed, the duties of the mine foreman are practically the same under both statutes. Certainly there are no such distinguishing features as to justify a court in laying down one rule for a mine foreman in the bituminous field, and an entirely different rule for a mine foreman in the anthracite region. After all, this is more a question of fact than of law. Both statutes clearly contemplate that the underground workings shall be under the exclusive charge and supervision of a mine foreman, and when the mine foreman has the exclusive supervision of the inside workings, the owner is relieved from responsibility for anything that may .occur in the mines. In other words, the mine foreman with a certificate of competency from the commonwealth, and a knowledge of the statutory duties, imposed upon him, is answerable for the safe conduct of the mining operations. He should be, and in contemplation of law is, the absolute master of the interior workings of the mine over which he has charge as mine foreman. The character of his duties as mine foreman is not necessarily changed because he may hire or discharge men working under him, or suggest where and in what capacity the men shall work, or how the entries shall be driven, or the mines be developed. He may do all of these things and still be acting in his capacity as mine foreman. Indeed, if he is a competent mine foreman, which the law presumes him to be, he is better qualified to do all of these things’ than anyone else. The test is not the particular acts he may do in connection with the underground workings, but whether he has the charge, control and supervision of these workings to the exclusion of any other authority. When he has this exclusive supervision no one can dispute his authority as mine foreman, and even the owner cannot interfere with the performance of his duties. It is the duty of the mine foreman to see that all the statutory requirements intended to safeguard the health and lives of the men are properly enforced. What the law contemplates is not always done and for this reason confusion sometimes arises on account of divided authority. It sometimes happens that the mine owner does not commit the exclusive charge of the interior workings to the mine foreman, but acting through his superintendent undertakes to exercise authority over certain parts of the interior workings without reference to the duties of the mine foreman. When this is done the owner may be held liable for the negligent acts of his superintendent or those acting under his direct authority. Again, mine owners in some instances, presumably to avoid expense, make use of the same person in the dual capacity of superintendent and mine foreman. This results in a divided responsibility and may affect the question of liability in negligence cases. It has already led to an exception to the general rule pointed out by this court in Wolcutt v. Coal & Coke Co., supra. It is always safer and wiser for all concerned to follow the statutory rule which requires the underground workings to be in charge of the mine foreman. However, when this is not done, questions of fact arise which must as a rule be determined by a jury. In the case at bar we have concluded that whether Johnson acted in the dual capacity of mine foreman and superintendent was for the jury and we discover no reversible error in its submission. We cannot agree that the Act of May 29, 1901, P. L. 342, changes the status of a mine foreman. There is nothing in the language used to indicate such an intention on the part of the legislature. The questions of negligence, and of contributory negligence, as well as the credibility of the witnesses, were all for the jury.

There are but two assignments of error, one that the learned court below erred in not giving binding instructions for the defendant, and the other in refusing to enter judgment non obstante veredicto for appellant upon the whole record. There is no assignment as to the manner in which the case was submitted to the jury or as to any specific instruction given by the trial judge. We think the case was for the jury and that all the questions involved in the controversy were fairly and impartially submitted.

Judgment affirmed.


text:
    Girardi, Appellant, v. Laquin Lumber Company.

      Amendments — Statute of limitations — New parties.

    1. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party, or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused.
    2. Where suit was brought against the “Laquin Lumber Company, - a corporation, ” the record cannot be amended after the statute has run, so as to name as defendants a partnership, composed of six persons, trading as the Laquin Lumber Company.
    Argued March 14, 1911.
    Appeal, No. 72, Jan. T., 1911, by plaintiff, from judgment of C. P. Bradford Co., Sept. T., 1908, No. 460, on verdict for defendant in case of Mary Girardi v. Laquin Lumber Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Fanning, P. J.
    From the record it appeared that suit was begun against the “Laquin Lumber Company, a corporation.” The cause of action arose on April 22,1908. In February, 1911, the plaintiff made the following motion:

      The plaintiff moves the court that the record in this case be amended in all particulars as it may be affected thereby by changing the designation of the defendant to the Laquin Lumber Company, a partnership composed of W. L. Barclay, C. F. Barclay, G. B. Barclay, M. F. Quinn, F. H. Quinn and F. S. Sherman, trading as copartners.
    The court overruled the motion.

      Error assigned was in overruling motion to amend.

      M. Lilley, of Lilley & Wilson, with him David E. Kaufman, for appellant.

      Wm. Maxwell, for appellees.
    May 17, 1911:
   Per Curiam,

This appeal is from an order discharging a rule to amend the record by making new parties defendants after the statute of limitations had become a bar to a new action. The action was brought against the Laquin Lumber Company, a corporation. The amendment proposed was to name as defendants a partnership, composed of six persons, trading as the Laquin Lumber Company. The allowance of the amendment would have brought new parties on the record. Under the rule established by our cases this cannot be done. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused: Wright v. Copper Co., 206 Pa. 274.

The order discharging the rule is affirmed.