author: Per Curiam,

text:
    Long’s Estate.

      Wills — Vested and contingent estates — Construction—Children.
    1. In cases of doubtful construction the law leans in favor of an absolute, rather than a defeasible estate; of a vested, rather than a contingent one; of the primary, rather than the secondary intent; of the first, rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.
    2. The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment; for that would make the character of the estate depend, not upon the terms of its creation, but on the form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession; for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested, if it is certain to take effect in possession, by enduring longer than the precedent estate.
    3. In Pennsylvania a person sui juris owning a contingent interest in land or in personal property, may sell the same to one who does not stand towards him in a trust relation and who does not impose upon him for any sum agreed upon between them.
    4. It is the well established rule of construction in this state, as well as elsewhere, that the word “children” in a will does not include grandchildren, unless it appears from the context to have been so intended by the testator, or such meaning is necessary to carry out his manifest intent.
    5. Testator gave all the residue of his estate, real and personal, to a trustee in trust for the period of twenty years with large and ample powers in the trustee to manage, invest and reinvest the same. He also directed as follows: “I further provide and direct that when there is a greater accumulation than he deems necessary for the purposes of this trust he shall divide the same into six equal shares, paying one share to each of my five children and one share to be divided amongst the children of my deceased son. And if any of my children should die without leaving lineal descendants before the expiration of twenty years after my decease, then such share shall go to the other legatees share and share alike — parties taking per stirpes and not per capita. At the termination of twenty years the said trustee shall sell said real and personal property and divide the same in six shares to be distributed as is provided with reference to income of same.” Held, (1) that the residuary estate went to the person interested, as personalty; (2) that all the legacies were vested; (3) that the legacies to the “children” of the testator were subject to be divested by death within twenty years without leaving lineal descendants, and (4) that the legacies to the children of the deceased son were vested absolutely and unconditionally and that the administrator of a deceased daughter of the deceased son was entitled to share in a distribution of income.
    Argued April 25, 1910.
    Appeal, No. 181, January T., 1909, by Ella L. Miller, Christian L. Long and Frederick W. Long, from decree of the Superior Court, reversing decree of O. C. Cumberland Co., sustaining exceptions to report of auditor in Estate of Christian Long, deceased.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of J. M. Rhey, Esq., auditor.
    The facts are stated in the following opinion by Morrison, J.:
    Christian Long died January 16, 1892, leaving to survive him one son and four daughters, and, among other grandchildren, four who were children of a deceased son, Ira L. Long. His estate was large, consisting of both real and personal property. His will, in seventeen items, bears evidence upon its face of having been drawn by one who was an expert in legal expression, makes careful and elaborate provision for each of his children and for the children of his deceased son, varying in quantity and in form, sometimes giving directly and at others in trust, sometimes in fee and at others for life, but in the main setting apart a portion of his estate in the form of life trusts for his children and the children of his deceased . son, with remainders over to their respective children.J, After making these particular provisions, the testator disposed of the residue of his estate — sufficiently large in 1907 to produce a net annual income of over $18,000— by creating a trust to last for twenty years as shown by item fourteen of his will, which reads as follows:

      "Item. All the rest and residue of my estate, real, personal and mixed, I give, devise and' bequeath to J. L. Barner, in trust, for the period of twenty years— during which period he shall manage the same as he conceives for the best interest of all concerned in the same. He shall have full power to lease or sell the same, to make the necessary contracts, agreements and conveyances. He may purchase any parcels of land which he may deem necessary in order to secure debts due to my estate at either private or public sale, or when the same is sold under judicial proceedings. He is hereby given full power to improve my realty by using the income of the residuary estate to improve the same by erecting buildings thereon, to repair buildings or to fertilize or otherwise do what he may deem desirable, as well as to pay taxes, insurances, etc. When any sales of real or personal property are made he may reinvest the proceeds in realty or personalty. I further provide and direct that when, there is a greater accumulation than he deems necessary for the purposes of this trust he shall divide the same into six equal shares, paying one share to each of my five children and one share to be divided amongst the children of my deceased son, Ira L. Long. And if any of my children should die without leaving lineal descendants, before the expiration of twenty years after my decease, then such share shall go to the other legatees share and share alike— parties taking per stirpes and not per capita.
    “At the termination of twenty years the said J. L. Barner shall sell said real and personal property and divide the same in six shares to be distributed as is provided with reference to income of same.”
    It is upon the construction of this residuary clause that the present case turns.
    One of the children of Ira L. Long, Florence R. Rettew, died August 28, 1907, intestate, leaving to survive her no children, but a husband, C. Yernon Rettew, the appellant here, to whom letters of administration were granted on her estate. On January 31, 1908, the executor and trustee filed his fourteenth partial account of his several trusts, showing in his hands an undistributed accumulation of the income of the residuary estate of $18,265.30. Of this amount the children of Ira L. Long were entitled to one-sixth, or $3,044.21, which an auditor was appointed to distribute. Before the auditor the three surviving children of Ira L. Long claimed the entire fund for distribution, contending that the legacy to Florence R. Rettew in the residuary clause of the will was contingent, or, if vested, was divested by her death, and that the income of the residuary estate was not apportionable between them and Mrs. Rettew’s administrator. The latter claimed one-fourth of the fund going to Ira L. Long’s children, upon the ground that the legacy was vested in Mrs. Rettew during her lifetime, to wit: at the death of the testator, and was not divested by her death. The learned auditor, in an exhaustive and careful opinion, sustained the latter contention and submitted a table of distribution accordingly.' Upon exceptions filed by the three surviving children of Ira L. Long, the court held that Mrs. Rettew’s legacy was contingent, but that, so far as the fund was income from the rents of real estate and interest on mortgages and other loans, it was apportion-able between the life tenant and the remainder-men in the proportion of seven to five, Mrs. Rettew having lived about seven months out of the twelve covered by the account. From this decree of the court below Mrs. Rettew’s administrator appeals.
    The learned court below having reached the conclusion that Mrs. Rettew’s legacy was contingent, held that it was not material whether the last sentence but one in item fourteen of the will included the testator’s grandchildren or not. But the learned court expressed the opinion that the language of said sentence might embrace the testator’s grandchildren. We here quote it: “And if any of my children should die without leaving lineal descendants, before the expiration of twenty years after my decease, then such share shall go to the other legatees share and share alike — parties taking per stirpes and not per capita.”
    The learned counsel for the appellee, as if not having entire confidence in the position taken by the court that the legacies were contingent, argues earnestly that even if they were vested, the language above quoted embraced the grandchildren of testator, children of Ira L. Long, and, therefore, the death of Florence R. Rettew divested her legacy and it should be distributed to the surviving children of Ira L. Long. We will discuss this proposition further along.
    1. In our opinion, the residuary estate goes to the persons interested as personalty. The will of Chrstian Long directs the executor “at the termination of 20 years” to sell the real and personal property and divide the proceeds among the beneficiaries named in the will. The direction to sell works as conversion, notwithstanding the fact that the sale is postponed: Leiper v. Thomson & Castner, 60 Pa. 177; McClure’s App., 72 Pa. 414; Roland v. Miller, 100 Pa. 47; Bright’s App., 100 Pa. 602; McWilliams’s App., 117 Pa. 111; Mellon v. Reed, 123 Pa. 1; Thomman’s Est., 161 Pa. 444. We, therefore, consider the residuary estate as personalty. Mrs. Rettew’s interest in it was a legacy and if C. Vernon Rettew has any interest in it or its income, he takes as administrator of-the estate of his deceased wife.
    2. Was the interest of Florence R. Rettew vested? In item fourteen.we find: “I further provide and direct that when there is a greater accumulation than he deems necessary for the purposes of this trust he shall divide the same into six equal shares, paying one share to each of my five children and one share to be divided amongst the children of my deceased son, Ira L. Long.” As to the principal, the will directs that it be sold at the end of twenty years and to be divided “in six shares, to be distributed as is provided with reference to the income of same.”
    The controlling question then is, Does this will, taken as a whole, give vested legacies to the children of Ira L. Long? In our opinion, the will gives vested legacies to the testator’s children and grandchildren provided for in the residuary clause. In oi'der to hold that these legacies were contingent places upon the person so asserting the burden of establishing by fair and reasonable construction of the will that the legacies are contingent without doubt. To the writer it seems quite clear that these legacies were vested at the death of the testator, but to convict the court below of error, and to sustain the learned auditor, only requires us to conclude that the question is doubtful. The rule of law is that a legacy must be assumed to be vested unless the contrary intention of the testator clearly appears. In Smith’s App., 23 Pa. 9, our Supreme Court said: “In cases of doubtful construction the law leans in favor of an absolute, rather than a defeasible estate; of a vested, rather than a contingent one; of the primary, rather than the secondary intent; of the first, rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.”
    In Manderson v. Lukens, 23 Pa. 31, it is said: “The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment; for that would make the character of the estate depend, not upon the terms of its creation, but on the ’ form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession; for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested, if it is certain to take effect in possession, by enduring longer than the precedent estate.”
    In Fitzwater’s App., 94 Pa. 141, it is said (p. 146): “Where the intendment of the will is doubtful, the law leans in favor of an absolute estate; of the primary, rather than the secondary intent; of the first taker as the primary object of the testator’s bounty; and of a distribution conformable to the general rules of inheritance.”
    In Letchworth’s App., 30 Pa. 175, our Supreme Court, on page 179, said: “The law always and naturally inclines to attribute the real and substantial ownership of property to some existing person, even in the case of a trust and never to leave any part of it in abeyance. In other words, it always inclines to treat the whole interest as vested, and not as contingent; and therefore, in case of doubt or mere probability it declares the interest vested.” To the same effect is Ryon’s App., 124 Pa. 528. See also Jackson’s Est., 179 Pa. 77; Wengerd’s Est., 143 Pa. 615; Fulton v. Fulton, 2 Grant, 28; Carstensen’s Est., 196 Pa. 325.
    In Menoher’s Est., 18 Pa. Superior Ct. 335, in an opinion by Rice, P. J., we said: “They are familiar principles that in the construction of wills, the law, in doubtful cases, leans in favor of a vested, rather than a contingent estate.”
    In Thran v. Herzog, 12 Pa. Superior Ct. 551, Rice, P. J., in delivering the opinion of this court (p. 555), said: “In doubtful cases the courts favor that construction which, consistently with the words of the instrument, will give an absolute rather than a defeasible estate, a vested rather than a contingent one and which will result in a disposition in conformity to the general rules of inheritance rather than one which will disinherit an heir-at-law.” We think the legacy is vested because present beneficial enjoyment is given. Time is annexed, not to the substance of the gift, but merely to the payment, and, while the gift of the legacy is in the form of direction to pay, the direction to pay to the legatees the income not needed for the purposes of the trust shows the intention of the testator that the beneficial enjoyment should begin at once and that payment only of the principal should be postponed. The legacy, therefore, vested from the time of the testator’s death.

      In Schriver v. Cobeau, 4 Watts, 130, the provision in the will was: “I give unto my nephew the interest arising from one share of 5% state stock; and when the principal is paid off by law, then I give the principal arising from such share.” Held, that this is an absolute bequest of the stock, which may be disposed of by the administrator of the legatee at any time.
    In Roberts’s App., 59 Pa. 70, it is held prima facie, the gift of a product of a fund is the gift of the product in perpetuity, and consequently is a gift of the fund itself. Held further that the legacy to the nephew was vested and on his death, although under twenty-one, passed to his representatives. See also Little’s App., 117 Pa. 14; Reed’s App., 118 Pa. 215.
    Where “a testator provided that his executors should keep the proceeds of land sold invested at interest and pay over to each of his nine grandchildren one-ninth of the interest thereof annually, ‘or if any of them have died, leaving heirs, then pay the same to said heirs, and at the full expiration of twelve years from the time of my decease, shall in like manner pay over the principal; but neither interest nor principal shall be liable to attachment.’ Held, that the legacies to grandchildren were substantive gifts with time of payment postponed but certain and unconditional, and, therefore, vested at the death of the testator.” See also Provepchere’s App., 67 Pa. 463; Middleton’s Est., 212 Pa. 119; Schwartz’s App., 119 Pa. 337; Safe Deposit & Trust Co. v. Wood, 201 Pa. 420. We think the above cases and many others that might be cited fully sustain the proposition that the legacies provided in item fourteen of the will vested at the death of the testator.
    It does not appear from this will that the testator intended that the legacies to the children of Ira L. Long should be divested by death prior to the time fixed for the payment of the principal. The will makes no disposition of their shares of the residuary estate in case of the death of any of them prior to the time fixed for final distribution, and this circumstance of itself “is a very influential consideration” in support of the vested and absolute character of the legacies: Burd’s Exr. v. Burd’s Admr., 40 Pa. 182; McCall’s App., 86 Pa. 254; Fell’s Est., 6 Pa. Superior Ct. 192.
    3. It is contended by the court and argued by the counsel for appellees that the testator evidently intended to make the legacies contingent so that the persons interested would not dispose of their interests and thus interfere with the trustee keeping control of the property for twenty years, but this argument is not of much force when we remember that the Supreme Court has often held that the' beneficiary may dispose of his legacy whether it be contingent or vested. In Whelen v. Phillips, 151 Pa. 312, it was decided as stated in the syllabus: “In Pennsylvania a person sui juris owning a contingent interest in land or in personal property, may sell the same, to one who does not stand towards him in a trust relation, and who does not impose upon him, for any sum agreed upon between them.
    “A legatee under a will was entitled to a legacy of $4,466.66 contingent upon his surviving his mother. During the lifetime of his mother who was then seventy-six years of age, the legatee being in financial straits, sold his interest in the legacy for-$l,000 to a person who stood in no trust relation to him. Held, that, in the absence of evidence of oppression or bad faith in the transaction, -the sale passed a good title to the purchaser.” To the same effect is Day & Sharpe’s Assigned Est., 21 Pa. Superior Ct. 118. See also Robbins’s Est., 199 Pa. 500; Phillips’s Est. (No. 2), 205 Pa. 511. In that case Mr. Justice Brown said: “Whether he and the appellee regarded it as contingent or vested when he executed the assignment of February 17, 1890, to relieve himself from his great embarrassment, to which he freely testifies, is immaterial; for he had a right to assign it if it was either: 'A person, sui juris, owning a contingent remainder in land, or in personal property, may sell the same for such sum as may be agreed upon between himself and the purchaser, provided the former does not stand towards him in a trust relation, and in making the purchase, acts in good faith: ’ Whelen v. Phillips, 151 Pa. 312.”
    4. The remaining question strongly argued by appellees’ counsel is that if the legacy to Mrs. Rettew was vested, it was divested by her death, under the last sentence but one of item fourteen of the will hereinbefore quoted. The testator’s direction relied on is plainly limited to his children and it does not include grandchildren. To make this language include grandchildren requires a strained construction, and in our opinion a will so well drawn as the one in question will not bear a strained construction, especially on a question so well decided as the meaning of the words “my children” when used by a testator. It has been decided that the children means descendants in the first degree and never includes grandchildren, except in the contingencies referred to in the cases.
    In Hallowed v. Phipps, 2 Wharton, 376, Mr. Justice Rogeiis, speaking for the Supreme Court, used the following language which has often been quoted with approval and followed in the more recent cases. “ Under a bequest to children, grandchildren and other remote issue are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of a deceased child. But such construction can only arise, from a clear intention of necessary implication; as where there are not other children than grandchildren, or where the term ‘children,’ is further explained by a limitation over, in default of issue. The word ‘children’ does not ordinarily, and properly speaking, comprehend grandchildren, or issue generally. Their being included in that term, is only permitted in two cases, viz., from necessity, which occurs when the will would remain inoperative, unless the sense of the word, ‘children’ were extended beyond its natural import; and where the testator has clearly shown by the other words that he did not intend to use the term ' children, ’ in the proper actual meaning, but in a more extensive sense.”
    In Hunt’s Est., 133 Pa. 260, Mr. Justice Green, speaking for the Supreme Court, after quoting from Hallowell v. Phipps, said: “The above statement of the rule was supported by a citation of numerous decisions which fully sustain it in all its parts. With us it has never been departed from, but has been enforced in many instances, and never with any abatement of any of its terms. Examples of this are Dickinson v. Lee, 4 Watts, 82; Barnitz’s App., 5 Pa. 264; Horwitz v. Norris, 49 Pa. 213; Castner’s App., 88 Pa. 478.”
    In Castner’s App., 88 Pa. 478, Sterrett, J., said: “It is the well-established rule of construction in this state, as well as elsewhere, that the word ‘ children ’ in a will does not include grandchildren, unless it appears from the context to have been so intended by the testator, or such meaning is necessary to carry out his manifest intent, neither of which appears to exist in this case.”
    In the will under consideration, we find nothing in the context to warrant or justify a conclusion that the testator meant to include grandchildren when he said “my children.” In several places in his will the testator refers to his children, to the children of his son, Ira L. Long, and to lineal descendants. In our opinion, a full and fair construction of this will strongly negatives the idea that the testator meant grandchildren when he said “my children.”
    It is urged that the language in the sentence quoted “parties taking per stirpes and not per capita” supports the idea that the testator meant to include his grandchildren when he said “if any of my children shall die without leaving lineal descendants,” etc., but we do not attach sufficient importance to the provision as to the distribution per stirpes, to allow it to overcome the plain words of the will. That provision was probably placed in the will out of abundant caution as the testator could not foresee with certainty the exact situation that might exist when the trustee came to distribute the principal of the estate.
    July 1, 1910:
    We conclude this opinion by adopting the clear language of counsel for appellant, as follows: That the proper construction of the residuary clause is, that: (1) All the legacies given in it are vested; (2) the legacies to the “children” of the testator are subject to be divested by death within twenty years without leaving lineal descendants, while (3) the legacies to the children of Ira L. Long are vested absolute and unconditional. It follows that the administrator of Florence R. Rettew is entitled to receive her full share of the income of the residuary estate for the entire year covered by the account, and the learned judge of the court below committed error in apportioning it between the administrator and the surviving children of Ira L. Long.
    The assignments of error are sustained, and the decree is reversed, and it is now ordered and decreed that the fund be distributed in accordance with this opinion.
    Rice, P. J., dissenting.

      Error assigned was decree of the Superior Court.

      S. B. Sadler, for appellant.

      M. W. Jacobs, with him Charles C. Strok, for appellee.
   Per Curiam,

In the opinion of the majority of the court the decree of the Superior Court should be affirmed for the reasons stated in the opinion of Judge Morrison, reported in Long’s Est., 39 Pa. Superior Ct. 323.

The decree is affirmed at the cost of the appellant.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Crawford County Street Railway Company v. Meadville, Appellant.

      Street railways — Franchise—Nonuser—Recovery of money paid to cover repairing — Municipal corporations — Streets—Statute of limitations.

    1. Where a street railway company, in accordance with the provisions of an ordinance, pays a city a fixed sum “as a condition to the granting of the franchise” and pays the city another fixed sum to cover the estimated cost of paving displaced “in case the track of the company shall be laid in any street which had heretofore been paved,” the latter sum is held as a deposit to become the moneys of the city only on condition that the company enters upon the paved streets and is recoverable in an action of assumpsit upon expiration of the franchise of the company without user.
    2. In such case, the money held to cover the estimated cost of paving displaced is held on deposit and the statute of limitations does not begin to run until some act of conversion by the city.
    Argued April 25, 1910.
    Appeal, No. 284, Jan. T., 1910, by defendant, from judgment of C. P. Crawford Co., Feb. T., 1908, No. 79, for plaintiff on case stated in case of Crawford County Street Railway Company v. City of Meadville.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated in assumpsit. Before Bouton, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was judgment of the court on case stated.

      James P. Colter, with him Manley O. Brown, for appellant.
    It was clearly within the power of the city to make the validity of the franchise depend upon the payment, by the plaintiff company, of the full sum of $5,370 within thirty days from the date of approval of the ordinance as set forth in sec. 9 of the ordinance: Allegheny v. Ry. Co., 159 Pa. 411.

      July 1, 1910:
    There is nc proof of any contract on the part of the defendant to refund any part of the money paid, pursuant to the ordinance: Pittsburg v. Keech, 21 Pa. Superior Ct. 548.
    The payment made by plaintiff to the defendant is shown to have been a voluntary payment for a special privilege, and cannot, therefore, be recovered back under any circumstances: Schoenfeld v. Bradford, 16 Pa. Superior Ct. 165; Peebles v. Pittsburg, 101 Pa. 304; Gould v. McFall, 118 Pa. 455; Murphy v. Cawley, 7 Kulp, 128; McCrickart v. Pittsburg, 88 Pa. 133.
    The plaintiff’s claim is barred by the statute of limitations: Hostetter v. Hollinger, 117 Pa. 606; Zacharias v. Zacharias, 23 Pa. 452; Boustead v. Cuyler, 116 Pa. 551; Andress’s App., 99 Pa. 421.

      Frank J. Thomas, of Thomas & Thomas, with him David L. Starr and Wesley B. Best, for appellee.
   Opinion by

Mr. Justice Moschzisker,

Under a general ordinance all street railways in the city of Meadville were obliged to pave between their rails and one foot on each side. An ordinance was passed granting to the plaintiff company the privilege of constructing a railway on certain streets in that city. It provided: “As a condition to the granting of any franchise to the said company, there shall be paid by the company to the city treasurer, for the use of said city, the sum of one thousand dollars,” and “In case the track of the company shall be laid in any street which has heretofore been paved, the said company shall pay to the city that proportion of the costs $4,370 of such paving, which the width of said track and one foot on the outside of each rail shall bear to the whole width of said pavement, such payment to be made within thirty days from the approval of this ordinance,” and “Said company shall within thirty days from the approval of this ordinance make the said payment of the sum of one thousand dollars bonus, and the amount of four thousand three hundred and seventy dollars as estimated by city engineer to be the cost of paving displaced on North street and Market street.”

The sums named were duly paid by the company, and the city treasurer receipted for the $1,000 “for bonus on granting franchise” and for the $4,370, “on account North and Market street pavement.” The latter sum was deposited by the city treasurer in a bank to his credit, the account being designated “ W. E. Porter, City Treasurer, North and Market streets,” and the deposit so remained until councils passed a resolution “that the said controller be instructed to place in the unappropriated funds of the city four thousand three hundred and seventy dollars which is on deposit, and which was received from the Crawford County Street Railway Company.”

The plaintiff company never entered upon any of the streets, and the time limit of the franchise having expired, by action duly taken it officially decided not to build the road, and made demand upon the city for the return of the $4,370, which demand was refused; whereupon, action was brought by the company against the city.

The learned court below states in the opinion filed: “It is clear that the city granted to the plaintiff company a franchise to construct, maintain and operate its line for the consideration of $1,000. ... It appears, however, that some of the streets over which the company had the right to build its lines were already paved, and in order to put the company in the same position that they would have been in had such streets not been paved, and to reimburse the city for the proportionate cost of such paving, which the company would have been bound to pay had not such streets been paved, they provided: In case the track shall be laid on any street which has heretofore been paved the company shall pay that proportion of the costs $4,370 of such paving, which the width of said track and one foot on the outside of each rail shall bear to the whole width of said pavement.’ . . . And in order to avoid any future controversy or difficulty the city required this sum to be paid to its treasurer. Counsel for the city .contend that this was the price required by the- city for the franchise over North and Market streets, which were paved. With this contention we cannot agree. The franchise over all of the streets was specifically granted for the sum of $1,000, and the $4,370 was simply to reimburse the city in case the pavement on North and Market streets was displaced. The company concluded not to construct its railroad, and now claim that they are entitled to recover back from the city this sum of $4,370. It is evident that the city did not treat this as a bonus for the granting of the franchise from the receipts given the plaintiff. . . . There is nothing in equity or good conscience which permits the city to retain this money. ... In our opinion the payment of this $4,370 was a mere deposit with the city, to become the moneys of the city only on condition and when the company entered upon the paved streets. Such being the case, and the company having determined not to construct the road, and having forfeited their franchise, are now entitled to recover from the city the amount so deposited, together with interest thereon from January 12, 1905, when they decided not to build their road and made demand upon the city for the return of the money.” We agree with this view of the case. The $1,000 was a bonus which was forfeited when the company failed to comply with the ordinance and build its road; the $4,370 was a deposit made under the terms of the ordinance, and can be recovered back.

Appellant’s contention that the plaintiff’s claim is barred by the statute of limitations cannot be sustained. The amount claimed being a deposit, the statute would not begin 'to run until an act of conversion on the part of the defendant. The resolution of councils directing the city controller to place the $4,370, which was then on special deposit, in the unappropriated funds of the city was not finally passed till December 21, 1904, and demand by the plaintiff for the return of this sum was not made till January 12, 1905.

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


author: Mr. Justice Mestrezat,

text:
    Surface, Appellant, v. Bentz.

      Practice, C. P. — Trial—Witnesses—Improper remarks — Withdrawal of juror.

    1. When any irrelevant or improper matter tending to prejudice or mislead the jurors is placed before them by a witness, and especially a witness who is also a party, the court should act promptly and protect the party whose cause is exposed to the improper influence by withdrawing a juror. It is quite as necessary to protect a party against improper remarks to a jury made by a witness as it is against such remarks when uttered by counsel.

      Wills — Mental condition — Evidence—Condition prior and subsequent to execution of will — Issue devisavit vel non.

      2. In an issue devisavit vel non, it is proper for the court to instruct the jury that it may consider the condition of the testator’s mind immediately prior and subsequent to the execution of the will, in order to determine his mental condition at the time he executed the instrument.

      Attorney at law — Attorney and client — Privileged communication— Evidence.

    •3. The privilege of confidential communications extends to communications made to an attorney in good faith with a view to employing him in the matter to which the communications relate, or during the.course of negotiations for his employment, even although the attorney declines the case, or the prospective client after hearing the attorney’s advice does not further employ him.
    Argued April 26, 1910.
    Appeal, No. 370, Jan. T., 1909, by plaintiff, from judgment of C. P. Cumberland Co., Nov. T., 1909, No. 50, on verdict for defendants in case of H. A. Surface v. John M. Bentz, A. W. Bentz et al., heirs of William Bentz.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Issue devisavit vel non. Before Sadler, P. J.
    The facts appear in the opinion of the Supreme Court.
    Plaintiff requested the court to charge, inter alia, as follows:
    6. If at the time of making the alleged will or republishing the same, the testator was sound in mind and knew the business in which he was engaged, then it is immaterial whether he was mentally unsound or delirious or unconscious before or after the time of the making of said will. Answer: We cannot instruct you, under all the evidence, that it is immaterial in this controversy whether William Bentz was mentally unsound or delirious or unconscious before or after the making of the will in controversy; the crucial question is, what was his condition and what occurred on March 3, 1910, when the will was executed by William Bentz. That is what you must consider.
    Verdict and judgment for defendants.

      Errors assigned among others were refusal to withdraw juror, and (3) in refusing plaintiff’s sixth point, as above.

      E. M. Biddle, Jr., with him F. B. Sellers, Jr., and Ida G. Kast, for appellant.
    Where remarks are made which tend to prejudice the minds of jurors, it is the plain duty of the court to withdraw a juror and continue the case, and it does not matter whether the improper influences are brought upon the minds of the jury by the admission of testimony, statements of counsel, offers of proof, or by questions asked witnesses and jurors: Holden v. Penna. R. R. Co., 169 Pa. 1; Wagner v. Hazle Twp., 215 Pa. 219; Fisher v. Penna. Co., 34 Pa. Superior Ct. 500; Walsh v. Wilkes-Barre, 215 Pa. 226; Saxton v. Rys. Co., 219 Pa. 492; Hollis v. U. S. Glass Co., 220 Pa. 49; Hale v. Hale, 32 Pa. Superior Ct. 37.
    The crucial question is the condition of testator’s mind at the date of the will: Kane’s Est., 206 Pa. 204; Miles v. Treanor, 194 Pa. 430; Walton’s Est., 194 Pa. 528; Allison’s Est., 210 Pa. 22; Butler’s Est., 223 Pa. 252; Pennypacker v. Pennypacker, 5 Sadler, 408; Thompson v. Kyner, 65 Pa. 368.
    July 1, 1910:
    The communications of Surface to Lloyd were privileged: Moore v. Bray, 10 Pa. 519; Beeson v. Beeson, 9 Pa. 279; Bacon v. Frisbie, 80 N. Y. 394; Cross v. Riggins, 50 Mo. 335; Alderman v. People, 4 Mich. 414; Carroll v. Sprague, 59 Cal. 655; Sargent v. Hampden, 38 Me. 581; Thorp v. Goewey, 85 Ill. 611; Skellie v. James, 81 Ga. 419 (8 S. E. Repr. 607); Peek v. Boone, 90 Ga. 767 (17 S. E. Repr. 66); Nelson v. Becker, 32 Neb. 99 (48 N. W. Repr. 962).

      S. B. Sadler, with him J. L. Shelley, for appellees.—
    If there be' any evidence from which capacity may be fairly inferred, it is a question for the jury: Pidcock v. Potter, 68 Pa. 342; Yardley v. Cuthbertson, 108 Pa. 395; McCormick v. McCormick, 194 Pa. 107; Newhard v. Yundt, 132 Pa. 324; Bitner v. Bitner, 65 Pa. 347.
    Condition of testator prior and subsequent to execution of will is proper for the consideration of the jury: Pennypacker v. Pennypacker, 5 Sadler, 408; Reichenbach v. Ruddach, 127 Pa. 564.
    Where no harm is done the court is justified in refusing to withdraw a juror: Com. v. McMahon, 14 Pa. Superior Ct. 621; Com. v. Striepeke, 32 Pa. Superior Ct. 82; Thompson v. Stevens, 71 Pa. 161; Com. v. Greason, 204 Pa. 64; Moore v. Neubert, 21 Pa. Superior Ct. 144; Dougherty v. Rys. Co., 213 Pa. 346.
   Opinion by

Mr. Justice Mestrezat,

This was an issue devisavit vel non to determine whether William Bentz was at the time of the execution of a paper purporting to be his last will, of sound and disposing mind, and whether he was induced to make said paper by undue influence. The trial of the cause resulted in a finding in favor of the plaintiff on the second, and in favor of the defendants on the first, of the two issues, and this appeal was taken by the plaintiff who alleges numerous errors committed by the court below on the trial of the cause.

Several of the assignments allege error iff the court’s refusal to withdraw a juror on motion of plaintiff’s counsel on account of improper remarks made by witnesses while testifying, two of whom were defendants, and all of whom displayed more or less feeling while on the witness stand. In several recent cases we have reversed the trial court because it refused to withdraw a juror and continue the cause on the ground of improper remarks made by counsel which tended to inflame the passions or prejudices of the jurors or lead them to a verdict not based on the evidence adduced on the trial. We have held that such remarks tended to mislead the jury and to procure a verdict unwarranted by the evidence. They introduce matter into the trial of the cause which is irrelevant, improper and has a tendency to defeat the ends of justice. It, therefore, is manifestly the duty of the court to protect the injured party by withdrawing a juror and sending the case to another jury which is free from any erroneous impressions caused by such improper conduct.

It is equally true that for any irrelevant or improper matter tending to prejudice or mislead the jurors and placed before them by a witness, especially by a witness who is also a party, the court should act promptly and protect the party whose cause is exposed to the improper influence upon the minds of the jury. It is quite as necessary to protect a party against the improper remarks to a jury made by a witness as it is against such remarks when uttered by counsel. In either case, it is inexcusable, and the only protection the injured party has must come from the court, and it should act promptly in the matter. In this case, a motion to withdraw a juror was made at five different times during the progress of the trial on the ground of improper remarks made by witnesses. Samuel Bentz was a defendant as well as a witness for himself in the cause. While being interrogated by his counsel and after having fully replied to a question, he proceeded to volunteer some hearsay testimony and was interrupted by plaintiff’s counsel. Whereupon, his own counsel said: “Just what you saw yourself?” He then replied addressing the jury: “You know in law we can’t say just exactly what we would like to say, but you gentlemen understand it all.” The plaintiff’s counsel promptly moved the court to withdraw a juror and continue the case. This was refused, the learned court saying: “I don’t think anything the witness has said has injured the rights of the plaintiffs, but we will direct them to disregard anything you complain of.” Immediately before the objectionable remark, the witness had testified to the condition of the testator, his brother, and that he had told the two nurses that his brother was not in a fit condition to receive them. On another occasion after further testifying to his brother’s condition and to a conversation with the plaintiff, the same witness said: “He (plaintiff) told me that barefaced lie.” The plaintiff’s counsel moved to withdraw a juror, when the witness resumed and attempted to tell something the plaintiff had told him. The plaintiff’s counsel then asked the court to rule on his motion which the court did by overruling it and telling the jury to disregard the statement of the witness. John M. Bentz, another defendant and a witness for himself, was asked his opinion whethér the testator was competent to make a will and he replied emphatically: “No. Why I believe I could have gotten him to sign any document-.” Here, the plaintiff’s counsel interposed an objection and the witness was prevented from proceeding. The court again refused a motion to withdraw a juror, and in directing the jury to disregard the objectionable language used by the witness, repeated it to the jury. Mr. Martin, a witness for the defendant, was asked his opinion whether the testator was competent to intelligently transact business, to which he replied: “No,” whereupon the counsel for the defendant asked him whether he was competent at any time during the period stated in the testimony, to which the witness replied: “No; and well do they know it.” The court refused a motion to withdraw a juror, again repeating the objectionable remark in telling the jury to disregard it. George E. Lloyd, an attorney and insurance agent, was a witness for the defendant and replied argumentatively to a question put by the defendant’s counsel. Plaintiff’s counsel asked the court to withdraw a juror, which was declined with a remark by the court imputing to counsel the cause of the witness’s answer. While the witness Lloyd was on the stand, and after giving an uncertain answer to a question by plaintiff’s counsel, he, in his apparent anxiety to get something before the jury, said: “Do you want me to state the reason? ’’ The court at once said: “Certainly, state it.” The witness began: “I tell --,” when the plaintiff’s counsel promptly interrupted him and asked for an exception to the court’s conduct which was granted.

We think the motion of the plaintiff’s counsel should have been allowed and a juror withdrawn. The witnesses of the defendants, above referred to, those who were parties as well as those who were not parties, manifested much feeling and bias, and in reading the testimony it is apparent that they interjected the objectionable remarks for the purpose of influencing the jury. If such remarks had been made by counsel, our cases show that we would have reversed the court for not withdrawing a juror and continuing the case. The remarks of the witnesses had, perhaps, greater effect with the jury than had they been uttered by counsel, In trials of this character, such remarks by witnesses are not only highly improper, but naturally have a tendency to mislead the jury. The opponents of the will alleged that the testator lacked testamentary capacity, and also that undue influence had been brought to bear upon him to make a will which would be favorable to the plaintiff. They claim that the testator was deprived of testamentary capacity by reason of the excessive use of intoxicants for many years, and that his condition was such that he became a prey to the influence of the plaintiff. The court’s rulings were not such as to eliminate from the minds of the jurors the objectionable remarks of the witnesses. In some instances the court repeated the improper remarks, and in one instance, incorrectly suggested, as the record discloses, that the plaintiff’s counsel was responsible for the witness’s reply. The court’s rulings aggravated rather than lessened the effect of the incompetent testimony, on the minds of the jurors. We must sustain the assignments which allege error in the refusal of the court to withdraw a juror.

The third assignment is not sustained. We think the answer was correct. The learned judge did not intend to say that the crucial question was not the condition of the testator’s mind at the date of the will, as claimed by the counsel for the appellant, but we think did say in effect that in determining that question the jury might take into consideration the condition of the testator’s mind immediately prior and subsequent to the time of the execution of the will. The evidence of the condition of the testator’s mind at those periods tended to show the condition of his mind when he executed the instrument. It was, therefore, competent for the jury to consider such evidence as bearing upon the question of the testator’s mental capacity at the time the will was executed. We need not rule on the admissibility of the hypothetical question in view of the fact that the case goes back for another trial. The existence of the facts embodied in the question may then be determined upon the evidence before the court. \

We have alluded to Mr. Lloyd’s testimony. The facts are not sufficiently disclosed to enable us to determine the character of the communications between Mr. Lloyd and the plaintiff, and hence we will not sustain the fourteenth assignment of error. If the testimony is offered on the next trial, the facts should be fully developed, when, in the light of the numerous authorities, its admissibility can be determined without difficulty. The question is discussed and ruled in many cases in our own and in other jurisdictions as appears by the decisions cited in the paper-books. In 23 Am. & Eng. Ency. of Law, 63, it is said that the privilege of confidential communications extends “to communications made to an attorney in good faith with a view to employing him in the matter to which the communications relate or during the course of negotiations for his employment, even although the attorney declines the case, or the prospective client after hearing the attorney’s advice, does not further employ him.” Mr. Wigmore (Evidence, vol. 4, sec. 2304) says: “Since the would-be client cannot certainly predict the attorney’s acceptance of the employment, the former must be protected in his preliminary statements when making the overtures, even if the overture is refused.” The payment of a fee is not necessary to establish the relation of attorney and client: Beeson v. Beeson, 9 Pa. 279, and we have said that “the circle of protection is not so narrow as to exclude communications a professional person may deem unimportant to the controversy, or the briefest and lightest talk the client may choose to indulge with his legal adviser, provided he regards him as such, at the moment:” Moore v. Bray, 10 Pa. 519, 524.

The judgment is reversed and a new venire awarded.


author: Me. Justice Elkin,

text:
    Connor, Appellant, v. Gibbons.

      Decedent’s estate — Real estate — Executors and administrators — Purchase at sheriff’s sale — Jurisdiction, O. C. — Res adjudicata.

    1. Where lands of an estate are bought in at a sheriff’s sale under a mortgage for an alleged inadequate price, by one who is an executor and legatee under the will, an adjudication by the orphans’ court on distribution of the estate surcharging an executor for not properly protecting the estate in the sale, and recognizing the validity of the sale, is final, whether the jurisdiction of the orphans’ court is exclusive in such case or not. The validity of such a sale cannot be subsequently attacked by a bill in equity filed by the heirs against the executor.

      Executors — Property of estate — Right of executor to become purchaser.

    2. An executor and legatee is not necessarily precluded from buying in lands of the estate sold on foreclosure proceedings, if there is no bad faith, and if he has no money or property of the estate in his hands, to avert the sale, and has used no portion of the estate for the purpose of acquiring the property.
    Argued April 26, 1910.
    Appeals, Nos. 81 and 82, Jan. T., 1910, by plaintiffs, from decree of C. P. No. 4, Phila. Co., March T., 1905, No. 1,981, dismissing bill in equity in case of Catharine A. Connor, individually and as administratrix, etc., and Cecilia C. Callahan et al. v. John J. Gibbons, Sarah J. Gibbons being substituted as defendant.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for conveyance of title and an account.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the decree of court dismissing the bill.

      John O. Johnson, with him Daniel C. Donoghue and John Houston Merrill, for appellants.
    The common pleas had jurisdiction: Hall’s App., 112 Pa. 42; Fidelity Ins., etc., Co.’s App., 99 Pa. 443.
    The orphans’ court had no jurisdiction of this case: Tyson v. Rittenhouse, 186 Pa. 137; Curran’s Est., 28 W. N. C. 96; Davis’s Est., 9 W. N. C. 380; Odd Fellows’ Savings Bank’s App., 123 Pa. 356; Yerkes v. Yerkes, 200 Pa. 419.
    Defendant was disqualified from buying the properties for his own use, under the circumstances of the case, because of his executorship of the estate at the time of the sale: Luther v. Luther, 226 Pa. 144; Mullen v. Doyle, 147 Pa. 512.

      July 1, 1910:
    The proceedings in the orphans’ court are not res adjudieata of the facts found therein or of any other facts: Williamson’s Est., 18 W. N. C. 138; Price’s Est., 81 Pa. 263; Parker’s Est., 64 Pa. 307; Williamson’s Est., 7 W. N. C. 82.

      Joseph P. McCullen, with him John J. Green, for appellee.
    The orphans’ court has exclusive jurisdiction of the cause: Shollenberger’s App., 21 Pa. 337; Goodwin v. Colwell, 213 Pa. 614; Dundas’s Est., 64 Pa. 326.
    The case is res adjudicata: Ahl’s Est., 169 Pa. 609; Lancaster v. Frescoln, 192 Pa. 452; Rauwolf v. Glass, 184 Pa. 237; Larkins v. Lindsay, 205 Pa. 534; Munson v. Munson, 30 Conn. 425-433; Huntley v. Holt, 59 Conn. 102-105 (22 Atl. Repr. 34); Knowlton v. Warner, 25 Ill. App. 221; Jenkins v. Scranton, 205 Pa. 598; Myers v. Borough of So. Bethlehem, 149 Pa. 85; Pennock v. Kennedy, 153 Pa. 579.
    The law of the case is ruled by Fisk v. Sarber, 6 W. & S. 18. See also Chorpenning’s App., 32 Pa. 315; Cadbury v. Duval, 10 Pa. 265; Hall’s App., 40 Pa. 409.
   Opinion by

Me. Justice Elkin,

The bill in this case was filed to compel a conveyance to an estate of two parcels of real estate purchased by defendant at a sheriff’s sale. At the time of the sale the purchaser was an executor of the estate and one of four joint residuary legatees. One parcel formed part of the residuary estate and the other had been mortgaged with the former to secure the joint and several bond of théir respective owners. The sale was on a foreclosure of the mortgage and the allegation is that the appellee purchased for less than value. It is not necessary to discuss in detail the many questions raised by this complicated record. We agree with the conclusion reached by the learned court below upon the record as presented. Whether in every such case the orphans’ court has exclusive jurisdiction to deal with subject-matter such as is here involved, or whether under some circumstances a court of equity has jurisdiction to grant such relief as is here sought, need not be finally determined for the purposes of this case. The orphans’ court had jurisdiction, whether exclusive or not is immaterial so far as this case is concerned, and it exercised that jurisdiction in a proper proceeding making distribution of the estate here involved in which all of the facts upon which the appellants now rely for relief were considered, surcharge was made, distribution awarded and decree entered. No appeal was taken from the decree entered in the distribution of the estate and the record stands as a final adjudication of the rights of the parties interested in the estate. All of the facts complained of in the present bill asking for a reconveyance of the properties to the estate were presented to and considered by the orphans’ court with the result that the executor was surcharged because of his failure to properly protect the estate by reason of the sale under the foreclosure proceedings for an inadequate price. The distributees, legatees, or other parties interested in the estate, received whatever benefit resulted from the surcharge based upon a sale at an inadequate price and should not now be heard in a court of equity for the purpose of attacking the sale itself by asking a reconveyance to the estate of the properties thus sold. In the orphans’ court the validity of the sale was recognized and the surcharge was based upon the inadequacy of price and failure of one acting in a fiduciary relation to properly protect his trust. This should be an end of the matter, and we agree with the learned court below that the orphans’ court had jurisdiction and did determine the matters in dispute between the parties. Upon the merits of the case as to the right of John J. Gibbons to become a purchaser at the sale we also concur in the view expressed both by the learned court below and by the orphans’ court to the effect that the proofs do not show that he acted other than in good faith, or that he had any money or property in his hands whereby the sale could have been averted or that he used any portion of the estate for the purpose of acquiring the property at the sheriff’s sale.

Decree affirmed at cost of appellants.


author: Mr. Justice Stewart,

text:
    Berryman v. Pennsylvania Railroad Company, Appellant.

      Railroads — Negligence—Master and servant — “Respondeat superior” —Malicious act of railroad policeman.

    1. In an action against a railroad company to recover damages for personal injuries where plaintiff testifies that immediately after alighting at a station from one of defendant’s trains, on which he had been a passenger, and while he was moving away and behaving in a quiet, orderly way, without having given any occasion for offense or having engaged in any altercation or having been guilty of any violation of law he was the victim of a willful, wicked and malicious assault committed by a policeman in the employ of the defendant company, it is reversible error for the court to refuse binding instructions for the defendant.

      Railroads — Policeman—Presumption—Master and servant.

    2. When it is shown that a policeman is in the employ of a railroad company it may follow presumptively that when present at one of the railroad stations, he is there in the course of his employment, but no presumption arises that every act he does while there is done in the discharge of a duty owing to the company.
    3. For a willful or intentional trespass by an employee outside the line of his duty under his employment, the employer is not responsible, even though it be committed while the servant is in the exercise of his employment; but in the latter case its willful and separate character must appear.
    Argued April 27, 1910.
    Appeal, No. 38, Jan. T., 1910, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1908, No. 130, on verdict for plaintiff in case of William H. Berryman v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Trespass to recover damages for personal injuries. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,750. Defendant appealed.

      Error assigned among others was in the refusal of binding instructions for defendant.

      Seth T. McCormick, for appellant.
    The railroad company, the master, is not liable for the willful acts of its servant outside of the line of his employment: Shay v. American Iron & Steel Co., 218 Pa. 172; Scanlon v. Suter, 158 Pa. 275; Brennan v. Merchant & Co., 205 Pa. 258; Lotz v. Hanlon, 217 Pa. 339; Nicholas v. Keeling, 21 Pa. Superior Ct. 181; Rudgeair v. Traction Co., 180 Pa. 333; McFarlan v. R. R. Co., 199 Pa. 408; Sarver v. Mitchell, 35 Pa. Superior Ct. 69; Guille v. Campbell, 200 Pa. 119; Murphey v. Rapid Transit Co., 30 Pa. Superior Ct. 87.
    The railroad company is not responsible for the malicious act of its servant, while not engaged in the contract of transportation, committed after passenger has alighted: Greb v. Penna. R. R. Co., 41 Pa. Superior Ct. 61; Widener v. Phila. Rapid Transit Co., 224 Pa. 171; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637 (7 Sup. Ct. Repr. 1039); Mulligan v. N. Y., etc., Ry. Co., 129 N. Y. 506 (29 N. E. Repr. 952).

      Thomas M. B. Hicks, with him John Houston Merrill and Wister M. Elliot, for appellee.
    The defendant is liable under the principle of respondeat superior: Schimpf v. Harris, 185 Pa. 46; Duggan v. B. & O. R. R. Co.,' 159 Pa. 248; Phila. Traction Co. v. Orbann, 119 Pa. 37; Brennan v. Merchant, 205 Pa. 258; L. S. & M. S. Ry. Co. v. Rosenzweig, 113 Pa. 519; Artherholt v. Erie Elec. Motor Co;, 27 Pa. Superior Ct. 141.
    The carrier is bound to the exercise of the utmost degree of diligence and care to protect passengers from violence at the hands of disorderly persons, which duty involves the exertion by its employees of every power at their command for the passenger’s protection: Pitts-burg, etc., Ry. Co. v. Hinds, 53 Pa. 512; Pittsburg, etc., R. R. Co. v. Pillow, 76 Pa. 510; Duggan v. B. & O. R. R. Co., 159 Pa. 248.
    July 1, 1910:
   Opinion by

Mr. Justice Stewart,

Assuming, as we must, that the facts are as testified to by the plaintiff, the case may be stated thus: Plaintiff had been a passenger on the defendant company’s road, traveling from Wilmerding to Pitcairn on the night of October 30, 1907, in company with one Boyer. He had gone from his home in Pitcairn to Wilmerding that day to hunt, and on his return brought his gun with him. Bledsoe, a policeman or patrolman in the employ of the defendant company, with one Reed, also a patrolman in the same service, boarded the same train at Wilmer-ding, and occupied the same car with the plaintiff and Boyer. When the train arrived at Pitcairn all these parties alighted, the plaintiff and Boyer first, and immediately following, Bledsoe and Reed. On either side of the place where the train stopped there is a paved platform for the accommodation of passengers. When the plaintiff was in advance of Bledsoe and Reed some fifteen feet, moving over the platform to the subway, he heard Bledsoe say, "Hey there, Berryman.” He stopped, and then stepped back. As Bledsoe approached, speaking with Reed, he again stopped, resting the stock of his gun on his foot or on the platform and covering the muzzle with his hand. As he was thus standing, Bledsoe began shooting at him from a revolver while only four or five .steps away. The first shot took effect in his abdomen and prostrated him on the platform; another followed entering his groin; two more followed striking his right leg above the knee, a fifth struck him in his thumb. Bledsoe and Reed then ran from the scene, and the plaintiff was carried helpless to his home, where upon examination it was discovered that there were seven bullet wounds on his person. Plaintiff had given no occasion for offense; was behaving in a quiet, orderly way; had had no altercation with anyone, and had been guilty of no violation of law. The case was submitted to the jury with this instruction as to the law, “If you find this was an unprovoked assault and battery, or unprovoked shooting, without justification, and occurred in the manner in which the plaintiff has testified it did, and you find at the same time that Bledsoe was in the discharge of his duty as an officer of this railroad company, and was there at the time in the discharge of the duty which he owed to the defendant company, then you can find for the plaintiff.” We are at a loss to construct out of these facts any theory which would justify this submission. Accepting the facts as we have stated them, the attack on the plaintiff was a willful, wicked and malicious assault with intent to kill him, or at least inflict upon him grievous bodily injury. The circumstances as detailed would be almost conclusive that the intent was to commit the more serious offense. It having been shown that Bledsoe was a policeman in the defendant company’s employ, it may follow presumptively that he was present at the station in the course of his employment, and while there was on duty; but no presumption arises that every act he did while there was done in the discharge of a duty owing to the company. The evidence must show at least circumstances from which a jury can reasonably infer such facts before the employer can be held answerable for the consequences. When it discloses circumstances which admit of no other inference than that the act complained of was both willful and separate from duty, the individual committing the trespass alone is responsible. The law is thus stated by Mr. Justice Mitchell in McFarlan v. Railroad Co., 199 Pa. 408, “For a willful or intentional trespass by an employee outside the line of his duty under his employment, it is settled that the employer is not responsible, even though it be committed while the servant is in the exercise of his employment. But in the latter case, its willful and separate character must appear.” That the act of Bledsoe was willful and malicious on the plaintiff’s showing, admits of no question. Was it something separate from the duty he owed his employer? Let the facts answer. Plaintiff had not been guilty of any violation of law; no information had been lodged against him; he was not disturbing the peace; and manifestly the assault could not have been made with a view to accomplishing his arrest. Plaintiff was peaceably departing from the station on his way to his home, disturbing no one, when he was bolted. Without any explanation as to why he was addressed, without a single remark, and while he was resting his gun upon the floor with his hand covering the muzzle, Bledsoe standing only four or five feet away, began the murderous assault upon him which only ceased when every load in his revolver had been discharged, and when he had every reason to believe he had killed his victim. Had death followed the assault, Bledsoe’s crime, on .this evidence, would unquestionably have been murder in the first degree. Now what is there in the evidence that would support a finding that the assault was committed in discharge of any duty Bledsoe owed to the railroad company? Certainly the defendant company was not requiring the plaintiff’s blood at the hands of Bledsoe, its policeman; nor does it appear that the company had any purpose to serve by having his freedom interfered with in the slightest degree. The company had employed Bledsoe to preserve the peace, not to disturb it; and the case shows an entire absence of anything on the part of the plaintiff the doing of which could have concerned the company even in the remotest way. The only inference the evidence allows is that the assault was a malicious one to gratify private vengeance of the assailant, disassociated with any duty Bledsoe owed to his employer.

The cases cited by the learned counsel for the appellee, in support of their contention that Bledsoe in committing this assault was in the line of his duty are inapplicable. They deal either with cases where a special duty towards the injured party, arising out of contract relation was violated, as in the case of a conductor who in collecting-fares or tickets from passengers, or in preserving peace and order in his car, commits a willful and malicious assault on a passenger; or, where an officer makes violent assault while engaged in making arrests. In every such case the employee is directly in the line of his duty, in the sense that he is presently engaged in doing the work for which he was employed. It is the duty of the conductor to make his collections, and it is his duty to maintain order in the car for the protection of passengers; and it is as well the duty of the policeman to make arrests when proper occasion arises. It is for such purposes these employees are engaged. If the assault in this case had been made by Bledsoe in the course of an attempt to arrest the plaintiff, it might be contended that it was done when in the line of his duty, and it would be a question for the jury to decide; but, as we have said, every circumstance shows that here no arrest was intended; the plaintiff does not assert that it was, shows no circumstance that indicates it, while Bledsoe positively asserts that it was not. Or if it had been made in the attempt to do anything that Bledsoe was employed to do, as, for instance, keeping the peace, suppressing disorderly conduct, discovering crime, a like result would follow. This is the extent to which the cases cited go. The distinction is too apparent to require further discussion. Ordinarily whether the assault was committed in the line of the servant's duty is a question for the jury; but no question of fact is ever submitted to a jury except it is raised by the evidence. Here there was no evidence which could possibly support a finding that Bledsoe was in the line of duty under his employment when he committed the assault. The fact that it was committed at the defendant company’s station is of no importance. Plaintiff had been a passenger, but that relationship ceased when he alighted at his destination and had so far proceeded on his way as to be out of danger from the movement of the train, or further necessity of relation with the servants of the company. The defendant company thereafter owed him no special duty, no contract relation existing between them. But, take the other view of the case, and assume that Bledsoe had intended an arrest on justifiable grounds. So far he would unquestionably have been in the discharge of the duty of his employment. But the fact that in the attempt he committed a wanton and malicious assault admits of no possible dispute. No jury could find otherwise on this evidence. We have said quite enough as to that. In such case, where the servant in the discharge of a lawful duty willfully and maliciously inflicts injury, he alone is responsible for the consequences. The rule respondeat superior applies only where the injury results from the negligent manner in which the duty is discharged. The master cannot be held responsible for the malicious acts of his servants. In Pittsburg, etc., Ry. Co. v. Donahue, 70 Pa. 119, it was sought to charge the company with liability for injuries inflicted by a conductor on a boy who was a trespasser on the train. In ejecting the boy the conductor struck him upon the head with an iron switch turner and knocked him over. On appeal from the judgment rendered this court said in a per curiam, “We agree with counsel for the plaintiff that for a willful, wanton trespass committed by a conductor the company is not responsible.” In Pennsylvania Co. v. Toomey, 91 Pa. 256, it was held that where a conductor of a railroad train, acting in the line of his duty, ejects from the platform of a car, a person who has no right thereon, the company is liable if he has done it in a careless, negligent or reckless manner, but not if he maliciously ejects him therefrom. In these cases the common-law doctrine was applied and is alike applicable here. With Bledsoe’s explanation of the occurrence we have nothing to do, except to remark that it supplies nothing that is wanting in the plaintiff’s case. Upon a careful review of the evidence we are of opinion that the defendant company was entitled to an affirmative answer to its first point, which was, that under all the evidence the verdict should be for the defendant. The refusal of this point is made the first assignment of error. The assignment is sustained and the judgment is reversed.


text:
    Dorsett, Appellant, v. Tioga County.

      Costs — Sherriff'sfees—Summoning jurors — Mileage—Acts of April 14, 1834, P- A- 333, and July 11, 1901, P. A. 663.

    The sheriff of a county is not entitled to mileage for summoning jurors under the Act of July 11, 1901, P. L. 663.
    Argued May 2, 1910.
    Appeal, No. 268, Jan. T., 1909, by plaintiff, from judgment of C. P. Tioga Co., Nov. T., 1907, No. 132, for defendant on case stated in suit of Edward B. Dorsett v. Tioga County.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Action for mileage on a case stated. Before Ormerod, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the judgment of the court for de- . fendant on case stated.

      E. H. Owlett and A. B. Dunsmore, with them Walter Sherwood, for appellant.

      Robt. K. Young, with him Geo. W. Merrick and T. A. Crichton, for appellee.

      July 1, 1910:
   Per Curiam,

This was a case stated to determine the liability of the county to the sheriff for mileage for summoning jurors. The duly of the sheriff to summon jurors and the manner of its performance are fixed by the Act of April 14, 1834, P. L. 333. The only provision for compensation for the service is found in the Act of July 11, 1901, P. L. 663, which regulates and establishes the fees to be charged by sheriffs. The first section of this act provides that sheriffs shall receive “For drawing juries for each general and special term or session of court, three dollars, in addition to one dollar for executing each venire, and thirty cents for summoning each juror to attend court, all of these fees to be paid by the county.” It is evident that under this provision mileage cannot be recovered. The contention of the appellant is that he is entitled to mileage under a later provision of the same section which is as follows: “For traveling expenses or mileage in serving or executing any of the writs, rules, orders, decrees, processes or performing any of the duties or services herein specified and intended so to be or authorized by law, the sheriff shall be entitled to receive and have taxed as costs ten cents a mile for each mile actually traveled and necessary, the same to be allowed in each separate writ, rule, order, decree, process or service performed; Provided, that he shall not receive more than one mileage, where the plaintiff and defendant, or plaintiffs and defendants, in two or more contemporaneous writs are the same.” If this provision stood alone it, perhaps, would not be a strained construction to hold that it covered mileage for summoning jurors. But taken, as it must be, in connection with the prior provision, which expressly fixes the charge for that service, and by implication excludes any other charge not mentioned, we are of opinion that it does not cover plaintiff’s claim for mileage.

The judgment is affirmed.


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    Commonwealth v. Chapler, Appellant.

      Criminal law — Murder—Degree of crime — Use of deadly weapon— Presumptions — Charge—Answers to points.

    1. Conviction of murder in the first degree can be justified only as the commonwealth establishes by evidence a specific .intent to take life; and while the law regards the circumstance that a deadly weapon was used as evidence that a specific intent to kill existed, it is never so far conclusive as to such fact that the trial court may pronounce the intent to take life established as a matter of law. It is always for the jury to determine the intent by their own consideration of the evidence.
    2. The presumption from the use of a deadly weapon rises no higher than murder in the second degree. Under no circumstances, whether the party charged submits or does not submit, does the presumption rise higher.
    3. On the trial of an indictment for murder it is reversible error for the court to instruct the jury that they are bound to find a verdict of murder of the first degree. It is not only the right of the jury to ascertain the degree, but it is the right of the accused to have it ascertained by the jury, and a judge takes away one of the statutory rights of the accused when he undertakes to ascertain it himself.
    Argued May 2, 1910.
    Appeal, No. 106, Oct. T., 1910, by defendant, from judgment of O. & T. Cambria Co., June T., 1909, No. 14, on verdict of guilty of murder of first degree in case of Commonwealth v. Joseph Chapler.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Indictment for murder. Before O’Connor, P. J.
    The opinion of the Supreme Court states the case.
    The defendant presented these points:
    1. Murder in the first degree is limited to willful, deliberate and premeditated killing, and the presumption from the use of a deadly weapon rises no higher than murder in the second degree. Answer: That may be true where the defendant submits and no testimony is offered, but we have just said to you that the essential difference between murder in the first degree and murder in the second degree is the intent to kill, and the jury may infer that intent from the use of a deadly weapon, where it was directed at a vital part of the body. With that modification we affirm the point. [1]
    5. If you believe that the defendant struck the blow that killed Albert Deering, under a reasonable, although it might have been a mistaken apprehension of danger to life or of great bodily harm, you will acquit him. Answer: If the evidence satisfies the jury that the defendant had reason to apprehend an immediate attack on him and under the belief that the deceased was about to inflict upon him great bodily harm unless he struck the blow which caused Albert Deering’s death your verdict should be not guilty. We have said to you that we could not find from the testimony in the case that which we feel measured up to the standard of self-defense. If there be that in the case which would warrant the conclusion in your mind that defendant was in such imminent danger and could not retreat and therefore was obliged to inflict the blow to protect his life or limb, or protect him from great bodily harm, then he would not be guilty of any offense. With this modification we affirm the point. [2]
    The court charged in part as follows:
    [If you find from the evidence in the case the defendant had malice in his heart toward Albert Deering at the time he went to where he was, and used such a knife as described in the testimony in this case, striking at the throat of Albert Deering and severing the jugular vein, unless the defendant would excuse his act, you would not only have the right but you would be obliged to fix the degree at what the law defines it to be.] [3]
    [When, with a knife of this character he inflicted such a wound as the body of the decedent shows, under the circumstances testified to, the jury would have the right to infer that he intended to take life; in fact, it is the duty of the jury to so infer.] [4]

      July 1, 1910:
    [There is no evidence of his intent, except from his own testimony or declaration that he did-not intend to kill, but then he was bound .to know the consequences of his act when he used a deadly weapon directed at a vital part of the body of the deceased. If he had such recklessness of disposition, recklessness of the consequences of his act; in other words, did not care whether he killed or not, that is sufficient without any well-defined intent to take life, because it takes the place of a well-defined intent. One who would discharge a revolver upon a street and into a crowd, without any special grievance against anyone, and kill one of the crowd, would be guilty of murder in the first degree, because of the recklessness of disposition and the disregard for the consequences of his act, and this the law says, takes the place of the well-defined intent to take life, although he may have had no special malice against any person.] [5]
    Verdict of guilty of murder in the first degree. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      Morgan W. Evans, with him John H. McCann, for appellant.
    The trial judge invaded the province of the jury: Rhodes v. Com., 48 Pa. 396; Pannell v. Com., 86 Pa. 260; Com. v. Onofri, 18 Phila. 436; Com. v. Drum, 58 Pa. 9; Com. v. Greene, 227 Pa. 86.

      J. W. Leech, with him D. P. Weimer, for appellee,
    cited: Com. v. McGowan, 189 Pa. 641; Com. v. Mika, 171 Pa. 273; Com. v. Drum, 58 Pa. 9; Com. v. Van Horn, 188 Pa. 143.
   Opinion by

Mr. Justice Stewart,

The appellant stands convicted of murder in the first degree. If the verdict which so condemned him was the free expression of a conclusion reached by the jury upon review of the evidence in the case, upon proper instructions as to the law, the verdict ought not to be disturbed, lor unquestionably from the evidence the jury would have been fully warranted in reaching such conclusion; that is to say, they could have found in the evidence every ingredient necessary to conviction for the highest degree of guilt. If, on the other hand, however, the verdict was reached by the jury, under instructions from the court as to their duty which prevented consideration of those things which necessarily enter into the determination of the degree of guilt, then it ought not to be allowed to stand. Appellant killed his victim by suddenly stabbing him in the neck, thereby severing the jugular vein, from which wound death very soon resulted. Assuming that the evidence was sufficient to establish the offense of murder — and that the jury was so convinced— it still remained for the jury to determine the degree. Was it murder in the first or second degree? Conviction for the higher degree could be justified only as the commonwealth had established by evidence a specific intent obl the part of the accused to take life. Whether it had done so was a question for the jury alone to decide. No presumption of law carried the offense beyond the second degree. The law regards the circumstance that a deadly weapon was used, as evidence that a specific intent to kill existed; but it is never so far conclusive as to such fact, that the trial court may pronounce it established as a matter of law. The jury may infer the intent from the fact, but the court may not. When the law says that the jury may infer a specific intent to take life, from the use of a deadly weapon, all it means is that such circumstance is evidence of such intent. It does not mean that a presumption of murder in the first degree arises upon such fact being shown. The fact is to be considered in the determination of the question; and its convincing force is a relative matter, depending upon circumstances, and the evidence, if any, offered to countervail it. The law will sustain a finding of intent from the single fact that a deadly instrument was used; nevertheless, it is in every case for the jury to derive their own conclusion as to the intent, from the circumstances which the case discloses. To meet this feature of the case, the court was asked to instruct the jury as follows: “Murder in the first degree is limited to willful, deliberate, and premeditated killing, and the presumption from the use of a deadly weapon rises no higher than murder in the second degree.” The point was a correct expression of the law, and should have been unqualifiedly affirmed. The answer was as follows: “That may be true where the defendant submits and no testimony is offered, but we have just said to you that the essential difference between murder in the first degree and murder in the second degree, is the intent to kill, and the jury may infer that intent from the use of the deadly weapon, where it was directed at a vital part of the body. With that modification we affirm the point.” The qualification was a virtual denial of the point, and amounted to an instruction that the presumption yielded when it was shown that a deadly weapon was used, directed at a vital part. This, as we have said, is not the law. Under no circumstances, whether the party charged submits or does not submit, does the presumption rise higher than the second degree. As was said in the recent case of Com. v. Greene, 227 Pa. 86, whenever the commonwealth asks for a conviction of murder in the first degree, it must overcome the presumption of second degree after having established a felonious homicide, even if committed by the use of a deadly weapon upon a vital part of the body of the decedent. In that case the party charged offered no evidence whatever. Here the defendant did not submit, and yet the only inference that the jury could draw from the answer, must have been that he had submitted, and because he had submitted, he was not entitled to the instruction asked for. But the mistake did not stop here. The general charge leaves us in no doubt as to what thé trial judge meant by his answer to the point. It makes it certain that we have given it no other meaning, and ascribed no other effect or purpose than he intended. What he intended the jury to understand was, that the fact that defendant used a deadly weapon was conclusive of the question of degree of guilt. In speaking to this precise point he uses this language, “There is no evidence in this case of what was in the mind of the defendant at the time that he inflicted the fatal blow, but, as we have just read from the charge of the court in the case of Com. v. Drum, 58 Pa. 9, the jury have the right to infer that the defendant intended the consequences of his act. When with a knife of this character he inflicted such a wound as the body of the deceased showed, under the circumstances testified to, the jury would have the right to infer that he intended to take life; in fact it is the duty of the jury to so infer. There is no evidence of his intent, except from his own testimony or declaration that he did not intend to kill, but then he was bound to know the consequences of his act when he used a deadly weapon directed at a vital part of the body of the deceased.” Again he says, “If you find from the evidence in the case the defendant had malice in his heart toward Albert Deering, at the time he went to where he was, and used such a knife as described in the testimony of this case, striking at the throat of Albert Deering and severing the jugular vein, unless the defendant would excuse his act, you would not only have the right but you would be obliged to fix the degree at what the law defines it to be.” The manifest error here cannot be overlooked. Defendant had gone upon the stand and given his narrative of the occurrence, distinctively disclaiming a purpose to kill; the witnesses for the commonwealth had detailed the circumstances of the occurrence and the manner in which the blow was delivered. The instructions virtually withdrew all of this testimony from the consideration of the jury, and left them to find the intent from the fact that a deadly weapon had been used, and from that alone. Indeed even that was not even accorded them as a prerogative of their own, but they were instructed that they were obliged to so find. This was nothing less than a binding instruction and it was an erroneous instruction as well. The language of Woodward, J., in Rhodes v. Com., 48 Pa. 396, is here most appropriate. He says in that case, “It was argued that it would have been error for the court to instruct the jury that the offense was murder in the first degree. Undoubtedly, it would have been, and it was not error to instruct them that it was murder in the first degree, but it is one thing to instruct the jury upon the legal effect of evidence, and quite another thing to compel them to find a fact in a particular way. And it is to compel a jury, when, instead of placing the alternative degrees of murder before them, the judge decides that they must find the first degree or acquit. Under proper instructions from the bench it is not only the right of the jury to ascertain the degree but it is the right of the accused to have it ascertained by them, and a judge takes away one of the statutory rights of the accused when he undertakes to ascertain it.” In what we have said we have considered the only assignments that were pressed on the argument of the case, Nos. 1 to 5, inclusive. These are sustained, and this makes reference to the others unnecessary. The judgment is reversed and venire facias de novo awarded.


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    Sloppy, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—Master and servant — Fellow servant — Car repairer and, fireman — Assumption of risk.

    1. A railroad ear repairer and the crew of a train engaged in switching cars onto the repair track are fellow servants, the work of each being complementary to that of the other in accomplishing a general purpose under common authority.

      2. Where a ear repairer working under a crippled car on a siding reserved for that purpose, is killed by a collision resulting from the negligent shifting of another car onto the siding, and the proximate cause of the accident is the failure on the part of the fireman of the shifting crew to communicate to the engineer an order given by the conductor, the railroad company cannot be held liable in an action for damages for the death.
    Argued May 3, 1910.
    July 1, 1910:
    Appeal, No. 314, Jan. T., 1909, by plaintiff, from judgment of nonsuit of C. P. McKean Co., June T., 1908, No. 157, in case of Mrs. David Sloppy v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ormerod, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      B. B. Stone and Allan Oviatt, for appellant.
    The question as to the cause of the accident was for the jury: Menner v. D. & H. Canal Co., 7 Pa. Superior Ct. 135; Kroesen v. Railway Co., 198 Pa. 26; Canal, etc., Co. v. Mason, 109 Pa. 296; Moynihan v. Hills Co., 146 Mass. 586 (16 N. E. Repr. 574).
    The conductor was not the fellow servant of the car repairer: Mullan v. Phila. & Southern Mail Steamship Co., 78 Pa. 25; B. & O. R. R. Co. v. Baugh, 149 U. S. 368 (13 Sup. Ct. Repr. 914); Northern Pac. R. R. Co. v. Peterson, 162 U. S. 346 (16 Sup. Ct. Repr. 843).

      F. D. Gallup, for appellee.
    This case is governed by : Fullmer v. R. R. Co., 208 Pa. 598; Campbell v. Penna. R. R. Co., 2 Atl. Repr. 489; Peterson v. Penna. R. R. Co., 195 Pa. 494.
   Opinion by

Mr. Justice Stewart,

The accident out of which this action grows occurred on the repair track in the yard of defendant company. The plaintiff’s husband was there engaged with an assistant in repairing a crippled car. At the end of this car nearest the switch opening from the main track, was displayed a blue flag, the signal required by the rules of the company to warn against the approach of other cars. Extending back from the cars to the track was a sharp curve for a distance of 200 feet. A yard engine pushing-six cars, one of which, — the one farthest from the engine, — was to be left on this track for repairs, entered from the main track, moving at the rate of four miles an hour. This train of cars collided with the car that was being repaired. Plaintiff’s husband was at the time at work under the body of this car. His death resulted from the collision. The negligence charged was not in connection with the construction or maintenance of the track, or in the use of defective cars or imperfect appliances, but that the defendant company, disregarding its duty, wantonly and negligently, and without permission or consent, or giving any warning of or to the. said David Sloppy, ran a train of cars in on said crippled track, and wantonly, negligently, disregarding its duty ran and forced the said cars violently against the said car being repaired by the said David Sloppy.” At the conclusion of the plaintiff’s evidence the court on motion directed a nonsuit, which it subsequently refused to remove. The evidence establishes clearly, as the proximate cause of the accident, the failure on the part of the fireman to communicate to the engineer the order given by the conductor to halt the train. The conductor testified that he saw the blue flag on the crippled car when 200 feet away; that he at once signaled the fireman, whose duty it was to take the signal, — the engineer not being in sight because of the curve, — to slow down, and then .signaled to him to stop immediately; that both signals were disregarded and the collision followed. The witness further testified that at the rate of speed at which the train was moving, it could have been brought to a rest within six feet. There was nothing in the evidence which in anyway qualified this positive and direct testimony. The only question then was, was the plaintiff’s husband a fellow servant with those employed in the running of the train? The train was in charge of a conductor, the witness above referred to; it was made up of engine and cars to be distributed through the yard in which plaintiff’s husband was employed as a repair man. Conductor, engineer and fireman were admittedly fellow servants, because engaged in the same common employment, owing obedience to common authority; but it is contended that those whose duty it was to make repairs were not within this community. There is a clear and manifest distinction between the kinds of work done by these several classes of employees; but that of itself does not disassociate them. Whether a common employment in the legal sense can be affirmed, is not determined by the character or kind of work done by each, but by the purpose towards which the work is directed. If the purpose be a common one, and the work of each is but complementary to that of the other in accomplishing the general purpose, then it is a common employment. Here the general purpose on the part of both was to maintain the rolling stock of the company in a state of repair. A track was provided to receive what was known as crippled cars where they were to be repaired by employees engaged to do that particular work. It was the duty of the trainmen to deliver the cars upon this track and remove them when the repairs had been made. The duties of each class of employees were so related, that those employed in the one branch of the service must have known of the required co-operation of those employed in the other to effect the one distinct object in view. They thus became fellow servants in this connection, each individual in the class taking on himself all the ordinary risks of the employment, including the risk of negligent act on the part of others engaged in the same work. To establish this relation in contemplation of law', it is sufficient to show, "that they are employed by the same master, engaged in the same common work, and performing duties and services for the same general purpose:” Lehigh Val. Coal Co. v. Jones, 86 Pa. 432. It is impossible to distinguish this case in its controlling facts from the case of Campbell v. Penna. R. R. Co., 17 W. N. C. 73, "It clearly appears from the testimony,” said Sterrett, J., in that case, "that the immediate cause of the unfortunate accident which befell plaintiff, was the negligence of the brakeman in recklessly undertaking to drop in on the track where plaintiff was working, a greater number of cars, than he was able to control without assistance. The brakeman and plaintiff were engaged in different branches of the same general service, but in the discharge of their respective duties they were brought into such close proximity to each other, that the negligence of the former, in carelessly dropping the cars, necessarily endangered the safety of the latter. They were, therefore, in the proper sense of the term fellow servants of the defendant company, and nothing is better settled than that for an injury caused by a fellow servant, without more, there can be no recovery.” Fullmer v. N. Y. Central & Hudson River R. R. Co., 208 Pa. 593, and Peterson v. Pennsylvania R. R. Co., 195 Pa. 494, are directly in line. In all of these cases the difference in the work done by the several classes was just the difference which existed here, and in each case it was held that all were fellow servants because of a common employment owing obedience to common authority. The assignments of error are overruled and the judgment is affirmed.