text:
    Smith’s Estate.

      Wills — Construction—Vested and contingent interests — Legacies.
    1. Where a legacy is given to a person to be paid at a future time it vests immediately; but when it is not given until a certain future time it does not vest until that time, and if the legatee dies before, it is lost.
    2. If the question whether a legacy is vested or contingent seems doubtful, the doubt must be resolved in favor of a vested estate.
    3. Where a testator separates a portion of his estate and gives it to a trustee to “ allow the same to accumulate until the oldest child of my son, living at the time of my death shall become twenty-one years of age, when said accumulated income shall be divided into as many shares as there are children of my said son living at the time of my death,” and then directs that each of such children shall receive a share when he becomes twenty-one years of age and there is no limitation over, the share of a minor child of the son dying after the death of the testator, either before or after the oldest child becomes twenty-one years of age became vested as of the date of the death of the testator. The date of payment only was postponed.
    4. When there is a bequest of an aggregate fund to children as a class and the share of each child is made payable on attaining a given age, or marriage, the time of distribution is the time when the first child becomes entitled to receive his share.
    Argued Oct. 19, 1909.
    Appeal, No. 18, Oct. T., 1909, by-Edward A. Smith and Henrietta C. Smith, his wife, from decree of O. C. Allegheny Co., May T., 1908, No. 152, dismissing exceptions to adjudication in Estate of Edward A. Smith.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.-
    Exceptions to adjudication.
    The material portion of the testator’s will was as follows;
    “Fourth. I give and bequeath to Hugh D. Smith, my son, and David M. Smith, my brother, and the survivor of them a like one-sixteenth (1-16) interest in the firm of Smith Brothers and Company, its real estate, assets, business and working capital, and a one-sixth interest in my residuary estate as hereinafter provided, in trust, however, that they or he shall pay the profits and dividends thereon from time to time as they shall be declared and divided by said firm, and the income from the one-sixth interest in my residuary estate to my son Edward A. Smith during his natural lifetime: provided said profits and dividends from said firm and income from the one-sixth interest in my residuary estate do not exceed three thousand dollars ($3,000.00) per annum.
    “And I further direct said Trustees or Trustee to invest any and all income and dividends arising from said interest in said firm and from said one-sixth interest in my residuary estate,' after the payment of said three thousand dollars ($3,000.00) per annum to my son Edward during his natural life as herein-before provided, and all the dividends and profits arising from said interest and accumulations after the death of my said son Edward and allow the same to accumulate until the oldest child of my said son Edward, living at the time of my death, shall become twenty-one years of age when said accumulated income shall be divided into as many shares as there are children of my said son Edward living at the time of my death (the children of any deceased child of Edward to represent their parent and be counted as representing one share), of these shares those of my said son Edward's children who are twenty-one years of age are to receive one share each of said accumulations of income and thereafter receive a similar proportion of the surplus income above three thousand dollars ($3,000.00); the shares of those who are minors at the time of my death to continue to accumulate until they respectively become twenty-one years old when they are to receive the same with a corresponding share of the surplus income thereafter, and in the event of the death of my son Edward either before or after my death all the income from said interest in said firm, and the income from the one-sixth interest in my residuary estate shall be divided share and share alike among his children him surviving (the issue of deceased children taking their parents’ share) until the youngest of said son Edward’s children become twenty-one years of age when said interest in said firm shall be sold and the proceeds and the one-sixth interest in the residuary estate shall be divided among said children of my son Edward share and share alike. My intention being that this portion of my estate shall go only to the children of Edward A. Smith, or their children. If he, said Edward, should die leaving no child surviving him, nor the issue of any deceased child surviving him then this portion of my estate shall go to my remaining children, or their legal representatives. Provided, that said Edward shall not have the power to sell, assign, pledge, transfer or anticipate any portion of said income or dividend, and that the same shall not be liable to attachment or seizure for his debts, or in any way liable therefor. And I further authorize and empower said Trustees or Trustee at any time in their or his discretion to sell said interest in Smith Brothers and Company, herein devised to them and reinvest the proceeds of said sale in real property or personal securities to be held as to the principal, income and accumulations thereon upon the same trusts as-specified herein in respect to said interest in said firm and the profits and accumulations arising therefrom and the increase from said one-sixth (1-6) interest in my residuary estate.”
    From the record it appeared that the testator, Andrew D. Smith, died on October 21,1908. One of the daughters of Edward A. Smith, Miriam C. Smith, died a minor on November 19, 1903, subsequent to the time when the oldest child became twenty-one years of age. She died intestate, unmarried and without issue, leaving to survive her her father, mother and four brothers.
    The auditing judge, Over, J., held that the legacy to Miriam was contingent and refused to allow the claim of her father and mother to share in the distribution as her next of kin.
    Exceptions to the adjudication were overruled.

      Error assigned was in overruling exceptions to adjudication.

      Ernest C. Irwin, with him A. E. Sloan, for appellants.
    It was the testator’s intention that a vested interest pass at once upon his death to the children of Edward A. Smith: Little’s App., 81 Pa. 190; Moore v. Smith, 9 Watts, 403; Gilliland v. Bredin, 63 Pa. 393; Reed v. Buckley, 5 W. & S. 517; Little’s App., 117 Pa. 14; Bowman’s App., 34 Pa. 19.

      January 3, 1910:
    The legacy in this case is a class legacy. The members of the class are fixed by the date of the testator’s death, and at that time their interest became vested, or at the very latest, at the time the eldest child became twenty-one: Buckley v. Reed, 15 Pa. 83; Reed v. Buckley, 5 W. & S. 517; Emerson v. Cutler, 31 Mass. 108; Doubleday v. Newton, 27 Barb. (N. Y.) 431; Heisse v. Markland, 2 Rawle, 274; Andrews v. Partington, 3 Brown’s Chan. Reps. 401; Godfrey v. Davis, 6 Ves. Jr. 43; Whitbread v. St. John, 10 Ves. Jr. 152.

      John G. Frazer, of Reed, Smith, Shaw & Beal, for appellee.
   Opinion by

Mr. Justice Potter,

The question in controversy in this case, is whether the gifts of accumulated income made by the will of Andrew D. Smith to the children of Edward A. Smith, were vested in the children living at the death of testator, or were contingent upon their severally attaining the age of twenty-one years. As Chief Justice Tilghman said in Patterson v. Hawthorne, 12 S. & R. 112: “The rule is that where a legacy is given to a person to be paid at a future time, it vests immediately. But when it is not given until a certain future time, it does not vest until that time; and if the legatee dies before, it is lost. This is the rule, but in the application of it there is great nicety, and the adjudged cases can hardly be reconciled.” In that case, the testator directed his real estate to be sold by his executors and the proceeds put out at interest during the life of his wife, to whom the interest was to be paid, and he then provided: “At the decease of my wife I do allow the price of my land shall be equally divided among my two sons, .... and my daughters, .... or their heirs, in six equal parts.” This language comes very close to that used in the case at bar. It was held that the children took vested interests and that the share of a daughter who died in the lifetime of the widow, was payable to her administrators. There is a distinction, however, in the fact that the fund which was the subject of the legacy in Patterson v. Hawthorne, was given to the widow beneficially for life. In the present case there is nothing given to anyone except the legatees, but the surplus income is to be accumulated for their benefit.

If the question whether a legacy is vested or contingent seems doubtful, all the authorities agree that the doubt must be resolved in favor of a vested estate. The statement of the rule by Chief Justice Lowrie in Letchworth’s App., 30 Pa. 175, has been frequently quoted with approval in later cases. It is (p. 179): “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.”

. In Blease v. Burgh, 2 Beav. 221, where (syllabus) “ a testatrix gave her residuary estate to trustees to accumulate, and to stand possessed thereof, and of the accumulations in trust for all the children of J. B., other than A., and to be paid on attaining twenty-three, with a gift over in the event of the death of all of the said children under twenty-three,” it was held that the legacies were vested. Also that (p. 226): “A gift in terms importing a present, vested interest with a postponed time of payment, is not made contingent by a direction to accumulate till the time of payment arrives.”

In Smith on Executory Interests (4th Am. ed., 1845), 171, it is said: “ If a bequest be made to children when they shall attain a certain age, and the testator appoints a person to be a trustee for them during the intermediate time, it is a sufficient indication of immediate vesting:” Citing Branstrom v. Wilkinson, 7 Ves. 421.

The statement of the rule by Chief Justice Gtbson, in Moore v. Smith, 9 Watts, 403, has always been accepted; it is that (p. 408): “The legacy shall be deemed vested or contingent just as the time shall appear to have been annexed to the gift or the payment of it.” But in that case, there was a mere naked direction to pay to the legatee “as soon as he arrives to be twenty-one years of age,” and that was held to import a contingency. In the case at bar the testator, Andrew D. Smith, placed in trust a portion of his estate, and directed the payment from the income thereof, of the sum of $3,000 annually to his son Edward A. Smith. He then made provision for the accumulation of the residue of the income, until the oldest child of his son Edward, living at the time of testator’s death, became twenty-one years of age, when the fund was to be divided into as many shares as there were children of Edward, living at testator’s death. Each child was to receive one of said shares at twenty-one, the shares of those who were minors at testator’s death to continue to accumulate until they respectively became twenty-one years old. The auditing judge states that at the death of Andrew D. Smith, his son Edward A. Smith had five children living, the eldest of whom became of age in 1901, and all are now living except Miriam, who died in her minority, November 19, 1903, leaving to survive her, her father and mother, who claim that one-fifth of the income of the trust estate after payment to E. A. Smith of his annuity, vested in her and that it should be distributed to them under the intestate laws.

The auditing judge held that the gifts of the income to the children of Edward A. Smith did not vest at the death of the testator, but were contingent upon the respective beneficiaries attaining the age of twenty-one years, and that therefore the daughter Miriam, who died in her minority, took nothing under the will.

Our examination of the will leads us to a different opinion as to the intention expressed by the testator with regard to the time of the vesting of these legacies. It seems to us that he intended the gifts to take effect at his death. They were made to the children living at the time of his death. While the period of division was postponed until the oldest child of Edward living at the time of testator’s death should become twenty-one years of age, yet the accumulated fund was then to be divided into as many shares as there were children of Edward living at the time of testator’s death. The whole scheme of the gifts seems to relate to conditions as they existed at the time of testator’s death. The number of children then living fixed the number of shares into which the fund was to be divided; nothing remained but the period of division, which was to be when the eldest child became of age, and the date of payment, which was to be to each of those children as they severally reached the age of twenty-one. He refers to the share of those who were minors at the time of his death, and directs that such shares were to continue to accumulate until the minors respectively became twenty-one years old, when they were to receive the same. Unless the minors had a vested interest they could own no shares. The provision that the children of any deceased child of Edward were to represent their parent and be counted as representing one share, also indicates the intention of the testator that the legacy should be vested. If contingent, it would be lost upon the death of the minor, and there would be nothing to represent. It will be noticed, also, that there is no limitation over. The decision in Reed v. Buckley, 5 W. & S. 517, seems to be decisive of the point now under examination. It was there expressly held that, where a testator directed his estate to be converted into money and the net proceeds equally divided among his children and paid to them at the time of their severally arriving at the age of twenty-one years, the legacies to the children vested at the death of the testator.

Then again, the subject of the gift in this case was separated from the rest of the estate, and was vested in trustees for the benefit of the legatees, and in such case the gift, although in form contingent, will be held vested: Branstrom v. Wilkinson, 7 Ves. 421.

There is another aspect of this case, from which it would appear that in any event the share of Miriam Smith vested in her when the oldest child reached the age of twenty-one years. That occurred in 1901, after testator’s death in 1898, and before the death of Miriam in 1903.

It was manifestly the intention of the testator that the amount of the interests of his grandchildren, the children of Edward A. Smith, in the income directed to be accumulated, should become fixed and determined when the oldest child was twenty-one. He directs the trustees to “ allow the same to accumulate until the oldest child of my son, Edward, living at the time of my death shall become twenty-one years of age, when said accumulated income shall be divided into as many shares as there are children of my said son Edward, living at the time of my death.” After directing that one share shall be received by each child who is twenty-one years old, he continues : “The shares of those who are minors at the time of my death to continue to accumulate until they respectively become twenty-one years when they are to receive the same.”

In Hawkins on Wills (2d Am. ed., 1885), 75, it is said: “When there is a bequest of an aggregate fund to children as a class, and the share of each child is made payable on attaining a given age, or marriage, the period of distribution is the time when the first child becomes entitled to receive his share.” And on p. 76: “The rule applies equally, whether the vesting or the payment only be postponed to the given age.” The authorities seem to agree that where a fund is given to children as a class, and the share of each is made payable on attaining a given age, the period of distribution, and hence of vesting in all of the children, is the time when the first child becomes entitled to recive his share: 30 Am. & Eng. Ency. of Law, 723.

In the case at bar, the accumulated income was directed to be divided into shares, when the eldest child should come of age, and his share paid to each child as it came of age. Were there nothing else in the case, it would seem to follow, under the authorities, that the interests of all the children became vested at the time thus fixed for division, which was in the lifetime of Miriam Smith, the daughter of appellants. But aside from this, as already indicated, our study of the fourth paragraph of the testator’s will has led us to the conclusion that immediately upon the death of the testator, the share of each living child of his son Edward became vested. The date of payment only was postponed.

The decree of the orphans’ court is reversed, and the record is remitted for further proceedings.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Fidelity Title & Trust Company, Appellant, v. Chapman.

      Payment — Presumption of payment — Evidence.
    1. The presumption of payment of a debt secured by a specialty runs from the time the debt is demandable, and, with nothing appearing on the face of the instrument showing that during the twenty years following its maturity the debtor had paid anything on account or done anything in acknowledgment of the continuing existence of the debt, it is presumed to have been paid after the twenty years have passed by.
    2. While the presumption of payment after the lapse of twenty years may be rebutted, the evidence to rebut it must be satisfactory and convincing, and this is especially so when the suit is not brought until after the debtor's death.
    3. Whether certain facts relied upon to rebut the presumption of payment are true is a question of fact for the jury, but whether, if true, they are sufficient to rebut, is for the court.
    4. A mortgage made by a mother to a son payable in five years with the privilege of paying the debt within the five years will, after the expiration of more than twenty-six years after the mortgage had been given, and twenty-three years after the death of the mother, be presumed to have been paid at some time within the five years before the maturity of the mortgage; and this presumption is greatly, if not conclusively, strengthened by the fact that in the account filed by the mother’s administrator no credit was taken for the payment of the mortgage, and it is not even mentioned; and by the further fact that neither the mortgage nor bond appeared among the effects of the son turned over to his committee in lunacy nearly a year after his mother’s death.
    Argued Oct. 19, 1909.
    Appeal, No. 39, Oct. T., 1909, by-plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1906, No. 327, for defendant non obstante veredicto in case of Fidelity Title & Trust Company, Executor of the last will and testament of John W. Benson, deceased, v. Thomas H. Chapman, Administrator d. b. n. c. t. a. of Ann K. Benson, deceased, with notice to John A. Ganter, terre-tenant.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Frazer, J.

      January 3, 1910:
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      J. C. Boyer, with him T. C. Jones, for appellant.
    It will never be presumed that a debt was paid before it became due. In other words, the presumption of payment will never begin to run until the maturity of the obligation, the time when payment may be demanded: Eby v. Eby, 5 Pa. 435; Strohm’s App., 23 Pa. 351; Com. v. Snyder, 62 Pa. 153.
    Want of demand for twenty years and upwards has been held to raise a presumption of payment. It has not been held in any case, that this is a presumption which cannot be overcome by proof: Reed v. Reed, 46 Pa. 239; McQuesney v. Hiesster, 33 Pa. 435.

      W. H. S. Thomson, with him Frank Thomson, for appellee,
    cited: Galbraith v. Galbraith, 6 Watts, 112; Summerville v. Holliday, 1 Watts, 507; Gregory v. Com., 121 Pa. 611; Porter v. Nelson’s Executor, 121 Pa. 628.
   Opinion by

Mr. Justice Brown,

On May 26, 1879, Ann K. Benson executed the mortgage in suit. It was given to her son, John W. Benson, to secure to him the payment of $1,000 “within five years from the 1st day of May, 1879, with interest thereon from that day, payable annually.” The mortgagor died January 11, 1883, leaving a will, in which she appointed her said son executor and devised the mortgaged premises to him for life. On August 29, 1883, by a decree of the court of common pleas No. 1 of the county of Allegheny, he was restrained from disposing of or intermeddling with his own estate or that of his deceased mother, and subsequently, on October 25 of the same year, was adjudged by that court an habitual drunkard, and William A. Herron was appointed his committee. On August 22, 1885, Benson was removed as executor of his mother’s estate and Thomas H. Chapman appointed administrator d. b. n. c. t. a. in his place. Upon the death of William A. Herron his son, John W. Herron, was appointed committee of Benson and continued to act as such until the latter’s death, which occurred May 27, 1904. This sci. fa. was issued January 25, 1906, more than twenty-six years after the mortgage had been given and more than twenty-one years after the expiration of the time when the debt secured by it was demandable, and it was issued only when the appellant was compelled to issue it by the present owner of the mortgaged premises in a proceeding instituted by him under the Act of May 8, 1895, P. L. 44.

The presumption of payment of a debt secured by a specialty runs from the time the debt is demandable, and, with nothing appearing on the face of the instrument showing that during the twenty years following its maturity the debtor had paid anything on account or done anything in acknowledgment of the continuing existence of the debt, it is presumed to have been paid after the twenty years have passed by. This presumption, in the nature of a receipt written by the hand of time, may, however, be overcome by affirmative proof that the debt, as a matter of fact, has not been paid, and when the presumption is overcome the liability of the debtor continues. In this respect presumption of payment differs from the statute of limitations. The latter is an absolute bar to an action on a simple contract, even if the debt remains unpaid, and that bar is removed only by a new promise to pay or by an acknowledgment of the debt consistent with a promise to pay: Reed v. Reed, 46 Pa. 239. But, while the presumption of payment after the lapse of twenty years may be rebutted, the evidence to rebut it must be satisfactory and convincing, and this is especially so when the suit is not brought until after the debtor’s death: Gregory v. Com., 121 Pa. 611. Whether certain facts relied upon to rebut the presumption are true is a question of fact for the jury, but whether if true, they are sufficient to rebut is for the court: Beale’s Exrs. v. Kirk’s Admr., 84 Pa. 415; Peter’s App., 106 Pa. 340; Porter v. Nelson, 121 Pa. 628. With this rule before it, the court below would have erred in entering judgment for the plaintiff on the verdict.

Even if the testimony was sufficient to show that there had been no payment of the mortgage between August 29, 1883, the date of the order restraining Benson from disposing of or intermeddling with his own estate or that of his mother, and January 25, 1906, the day on which the sci. fa. was issued, more was required of the appellant, and the learned court properly so held. While the debt secured by the mortgage was not due and demandable until May 1, 1884, there was a provision in the instrument which gave to the mortgagor the privilege of paying the debt at any time within five years from May 1, 1879. She lived for nearly four years after that date, and, after nearly twenty-six years had expired before any effort was made to collect the mortgage, and then made by compulsion at the instance of the landowner, it is to be presumed that she exercised the privilege to pay before the maturity of the mortgage. This presumption is greatly, if not conclusively, strengthened by two undisputed facts in the case. In the account filed by her administrator no credit is taken for the payment of this obligation, and it is not even mentioned. Neither the mortgage nor the accompanying bond appeared among the effects of John W. Benson turned over to Ms committee nearly a year after his mother’s death. The representative of the first estate did not regard it as a liability, and the committee of the son did not consider it an asset. Still more significant is the fact that on the trial neither the bond nor mortgage was produced by the appellant. As there was no evidence to show that during the three years and eight months intervening between the date of the mortgage and the death of Mrs. Benson she had not paid it in the exercise of her privilege to do so, the presumption is that she had paid it, and the plaintiff is, therefore, not entitled to recover.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Hochheiser v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Collision—Car and wagon — Turning into tracks — Case for jury.

    1. In an action against a street railway company to recover damages for personal injuries sustained by a driver of a wagon while turning back from one of the tracks of the railway into the other which he had been compelled to leave shortly before to make way for a car following him, the case is for the jury where the evidence tends to show that the plaintiff saw no car approaching upon the track into which he was turning, and that there was time sufficient to admit of the motorman in charge of the car which struck the plaintiff to slow up or stop in time to avoid the collision.
    2. In such a case the plaintiff’s guess as to the distance which he traveled upon the track into which he had turned, cannot be used against him to defeat his right of recovery, where his own testimony and the other testimony in the case showed that the distance which he estimated was clearly insufficient.
    Argued Oct. 19, 1909.
    Appeal, No. 85, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 799, on verdict for plaintiff in case of Louis Hochheiser, by his next friend, Charles Kohut, v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,650. Defendant appealed.

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

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant,
    cited: Burke v. Union Traction Co., 198 Pa. 497; Tyson v. Union Traction Co., 199 Pa. 264; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107.
    January 3, 1910:

      Joseph Stadtfeld, for appellee.
    Plaintiff’s testimony made out a prima facie case and disclosed no contributory negligence, and was clearly one for the jury to determine under all the evidence. Even if subsequent portions should appear at variance, which we deny, it nevertheless should be submitted to the jury: Sloan v. Phila. & Reading Ry. Co., 225 Pa. 52; Glase v. Phila., 169 Pa. 488; Ely v. Railway Co., 158 Pa. 233.
   Opinion by

Mr. Justice Potter,

“The appellant here complains of the refusal by the court below to enter judgment in its favor, non obstante veredicto.

The testimony on the part of the plaintiff was to the effect that he was driving westwardly on the west-bound track of the defendant company, and found it necessary to turn out to let a car pass him, which was approaching from the rear. He could not turn to the right because of obstructions, and therefore turned to the left upon the other, which was the east,bound track. Before doing so, he says he saw no car approaching upon that track. After the car behind him had passed, he immediately started to go back to the west-bound track, but before he could clear the east-bound track his wagon was struck by a car approaching from the west, and he was injured. The evidence is somewhat confusing, but we cannot say that the testimony of the plaintiff presents an impossible story. Counsel for appellant argue that plaintiff must have driven immediately in front of the car which struck him, when it was so close as to render the accident unavoidable. Had this been the only reasonable inference to be drawn from the testimony, the case should not have been left to the jury. But the theory of appellant in this respect is based upon a partial view only of the evidence and it takes into account only the estimate which was made by the plaintiff of the distance which he traveled upon the east-bound track, and which was clearly nothing more than a guess. Plaintiff did say that after turning out to let the car which was behind him pass, he thought he only traveled from fifteen to twenty-five feet on the left-hand track until he was struck; but at the same time he said he traveled far enough upon that track to be overtaken and passed by the car upon the other track which he had just vacated. It is common knowledge that an ordinary car in itself is longer than the distance he gave as his estimate of the entire distance he traveled upon the left-hand track, and both the wagon and the car were moving while the car upon the right-hand track overtook and passed the wagon; so that an inference that he traveled upon the left-hand track for a distance equal to twice the length of the car, or more, while it was passing him, would not be unreasonable. Add to this the fact, as testified to by both conductors, that the two cars met and passed each other before the collision, at a point not far from Twelfth street, and ample justification may be found for the inference apparently drawn by the jury that when the plaintiff entered upon the left-hand track he was far enough away, and the time was sufficient to admit of the motorman in charge of the east-bound car slowing up or stopping, in time to avoid the collision. The story of the occurrence, as given by the plaintiff, is at least not an impossible one. His guess as to the distance which he traveled upon the left-hand track, was clearly not reliable; but his story of the manner in which he turned out to permit the passage of the car, and his action in crossing from one track to the other and returning, and the relative position of the two cars when they met and passed each other after the car on the right-hand track passed the wagon, and before the collision, all presented elements proper for the consideration of the jury, and from which they might reasonably have drawn an inference of negligence upon the part of the motorman in charge of the east-bound car.

Our examination of all the evidence satisfies us that the trial judge was right in refusing to take the case from the jury, and in refusing to enter judgment non obstante veredicto, in favor of the defendant company.

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    Johns, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads — Brak&man—Fall of bridge — Res ipsa loquitur.

    1. In an action against a railroad company to recover damages for the death of a brakeman caused by the fall of a bridge on which his train was passing, the burden of proof is on the plaintiff to show negligence.
    2. In such a case the court commits no error in refusing to permit a witness for the plaintiff to testify as to the condition of the foundations five months later, where it appears that the physical conditions had changed in the meantime, and that the testimony was inadequate to establish a defect in the original construction.
    3. The maxim res ipsa loquitur is an exception to the general rule that negligence is not to be inferred but must be affirmatively proved except in cases of absolute duty or an obligation practically amounting to that of an insurer.
    Argued Oct. 19, 1909.
    Appeal, No. 86, Oct. T., 1909, by plaintiffs, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 1,069, refusing to take off nonsuit in case of Elizabeth C. Johns, by her father and next friend, James Anthony, v. Pennsylvania Railroad Company, operating the West Penn Railroad.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Carnahan, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit, and ruling on evidence referred to in the opinion of the Supreme Court.

      Horace J. Miller, for appellant.
    The defendant was bound to give the plaintiff a safe place in which to work and was bound to keep and maintain its bridge on this right of way in such reasonably and adequately safe condition for the deceased to be upon and use: Pennsylvania & New York Canal & R. R. Co. v. Mason, 109 Pa. 296; Hough v. Ry. Co., 100 U. S. 213; O’Donnell v. R. R. Co., 59 Pa. 239.
    January 3, 1910:
    When a bridge has stood for the length of time timbers are expected to last, it may be reasonably expected that decay has set in, and it is negligence to omit all proper precautions to ascertain its conditions: Rapho Twp. v. Moore, 68 Pa. 404.
    In this case the plaintiff has shown a series of acts from which the inference of negligence arises; that inference is sufficient to carry the case to the jury. Having once arisen, either as a matter of law or from affirmative evidence of acts-of commission or omission, it remains until overcome by countervailing proof; whether so overcome is a question of fact which the court could not determine: Penna. R. R. Co. v. Miller, 87 Pa. 395; Penna. R. R. Co. v. Weiss, 87 Pa. 447; Spear v. Phila., Wilm. & Balto. R. R. Co., 119 Pa. 61; Devlin v. Beacon Light Co., 198 Pa. 583; Kane v. Phila., 196 Pa. 502; McCafferty v. Penna. R. R. Co., 193 Pa. 339; White v. Boston, etc., R. R. Co., 144 Mass. 404 (11 N. E. Repr. 552).

      M. W. Acheson, Jr., of Patterson, Sterrett & Acheson, for appellee.
    The burden of affirmatively establishing negligence was on the plaintiff: Erie, etc., Railroad Co. v. Smith, 125 Pa. 259; Mensch v. R. R. Co., 150 Pa. 598; Wojciechowski v. Sugar Refining Co., 177 Pa. 57; Savitz v. R. R. Co., 199 Pa. 218.
   Opinion by

Mr. Justice Fell,

The plaintiff’s husband was a brakeman on the defendant’s road and was killed in an accident caused by the falling of a bridge on which his train was passing. The bridge was about eighty feet in length, and the iron superstructure rested on abutments at its ends and a pier at the middle of the creek it spanned. The creek was ordinarily quite small, but at the time of the accident the water was unusually high, while the water in the Allegheny river near by, into which it flowed, was 'low. This condition caused a very rapid current in the creek, and a strong pressure on one side of the bridge. The whole structure, including the abutments and pier, was carried away, and a freight car loaded with cement was carried seventy-five yards down the stream. The bridge had been used by the defendant for forty years, and there was no evidence of defective construction, or that the bridge had become unsafe.

The contention that the burden of disproving negligence was on the defendant cannot be sustained. The maxim res ipsa loquitur is an exception to the general rule that negligence is not to be inferred, but must be affirmatively proved except in cases of absolute duty or an obligation practically amounting to that of an insurer: Stearns v. Ontario Spinning Co., 184 Pa. 519; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350. There was nothing in the circumstances that amounted to evidence from which negligence could be inferred and that relieved the plaintiff from the burden of proof. An offer was made to prove by a witness that he had made an 'investigation to ascertain whether the bridge had a substantial foundation and had found that there was “no permanent foundation upon the location that had been lately occupied by the pier.” The accident occurred in March. This witness had testified that because of the high water no examination could be made for several weeks after the accident, and the examination he made was in August, five months later, and that in the meantime there had been a change in the physical conditions by the action of the water, by the rebuilding of the bridge, and the dumping of stones in the bed of the stream. This offer was excluded. It was renewed with the addition that there had been no change in the conditions, as far as the foundations were concerned, between March and August. The second offer was excluded for the reason that the testimony would be inadequate to establish a defect in original construction. The ruling of the court on the offer as first made was clearly right, and we cannot say that the exclusion of the offer as finally made calls for a reversal. The witness had testified to facts which showed that the result of his examination in August could not be relied on as proof of the condition existing before the fall of the bridge and, if his testimony had come up to the offer, it would not have advanced the plaintiff’s case. It would still have been barren of proof that th'e foundations which had withstood the floods of forty years were defective, and that the fall of the bridge resulted from their giving away.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Pennsylvania Company, Appellant, v. Pittsburg.

      Municipalities — Consolidation—Indebtedness—Taxation—Act of February 7, 1906, P. L. 7.
    1. When two or more cities are consolidated into one municipality, the legislature by the act authorizing the consolidation may make the consolidated city liable for the indebtedness of the old municipalities; or it may provide for an equitable apportionment of the existing burdens by requiring each of the respective municipalities to be responsible for its own indebtedness at the time of consolidation, and by providing for the payment of such indebtedness by taxation limited to the property located within the limits of the municipality contracting the same.
    2. The consolidated city of Pittsburg has no power to levy a tax upon real estate situated in the city of Allegheny belonging to railroad companies for the purpose of paying the debt of the city of Allegheny created prior to the consolidation, where it appears that such real estate is essential to the exercise of the franchises of the railroad companies, and that the city of Allegheny had never taxed it and had no power to tax it prior to the consolidation.
    3. The consolidating act did not confer upon the consolidated city the power to create any new subjects of taxation either within the old limits of each of the constituent cities, or indeed within the limits of the consolidated city treated as a single municipality.
    Argued Oct. 20, 1909.
    Appeal, No. 89, Oct. T., 1909, by plaintiffs, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1908, No. 692, dismissing bill in equity in case of Pennsylvania Company, operating and leasing the Pittsburg, Fort Wayne & Chicago Railway and the Cleveland & Pittsburg Railroad and the Pittsburg, Fort Wayne & Chicago Railway Company and the Cleveland & Pittsburg Railroad Company, v. City of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.
    Kennedy, P. J., found the facts to be as follows:

      1. That the plaintiff, the Pennsylvania Company, is a corporation duly organized and existing under the laws of the commonwealth of Pennsylvania, by virtue of an Act of the assembly approved April 7, 1870, P. L. 1025, and its supplements, and was created for, and exercises, inter alia, public functions, and as such corporation has for many years leased, and has and is operating certain lines of steam railway extending westwardly from the city of Pittsburg, Pennsylvania, into and through the state of Ohio, and into and through various other states, one of which said lines it operates and leases by and under the terms and provisions of certain articles of agreement had with the Pittsburg, Fort Wayne & Chicago Railway Company, a steam railway corporation duly organized and existing under the laws of the commonwealth of Pennsylvania, and one of which said lines it operates and leases by and under the terms and provisions of certain articles of agreement had with the Cleveland & Pittsburg Railroad Company, a steam railway corporation duly organized and existing under the laws of the commonwealth of Pennsylvania. The said Pennsylvania Company is obliged to pay lawful taxes, assessments, etc., levied or assessed against the properties of the said railway companies.
    2. That the city of Pittsburg, the defendant, is a municipal corporation of the commonwealth of Pennsylvania, and a city of the second class.
    3. That the former city of Allegheny, a municipal corporation of the commonwealth of Pennsylvania, and a city of the second class, was on or about December 6, 1907, annexed to the city of Pittsburg, as a result of proceedings duly had in the court of quarter sessions of Allegheny county at No. 71, December term, 1905 (Miscellaneous Docket), by virtue of an Act of assembly approved February 7, 1906, P. L. 7, and the said city of Allegheny is now known as the “North Side” of the city of Pittsburg.
    4. That the Pittsburg, Fort Wayne & Chicago Railway Company owns in fee simple or base fee title, or occupies by and under grants from the former city of Allegheny certain tracts or parcels of land situate in the first, second, fourth, sixth and ninth wards of the former city of Allegheny, now the “North Side” of the city of Pittsburg, and the Cleveland & Pittsburg Railroad Company owns certain tracts or parcels of land situate in the fifth, sixth and ninth wards of the former city of Allegheny, now. the “North Side” of the city of Pittsburg.
    6. That all of the above-mentioned tracts or parcels of land described in exhibit “A” form no part nor are included in the main tracks or rights of way of the plaintiff companies, but all of said tracts or parcels of land are adjacent or contiguous to the rights of way of the railroads operated and maintained by the Pennsylvania Company, and all of the said tracts are occupied with tracks, switches, sidings, turnouts, freight yards, roundhouses, platforms, embankments, stations, depots, signal towers, operating offices, or similar structures, and their respective curtilages, and are reasonably necessary and material to the proper and safe operation of the railroad rights of way and roadbeds maintained and operated by the Pennsylvania Company in conducting the business of transporting freight and passengers.
    7. That the said city of Pittsburg, through its department for the assessment of taxes, prior to February 1, 1908, made assessments for the purposes of municipal taxation for the fiscal year commencing February 1, 1908, upon the tracts of land and the structures thereon mentioned in the fifth paragraph of this bill; and the said assessments, with the valuations made thereon, are shown upon exhibit “A” of the bill. The city of Pittsburg has levied and assessed taxes upon all real estate situate on the north side of the city of Pittsburg, formerly city of Allegheny, including the parcels described in exhibit “A” of the plaintiffs’ bill, for the purpose of paying the bonded and floating indebtedness of the former city of Allegheny as it existed prior to its annexation to the city of Pitts-burg, by virtue of an ordinance recorded 1'n ordinance book, vol. 19, p. 152, entitled, “An Ordinance levying taxes and water rents for the fiscal year beginning February 1, 1908 (including the levying of special taxes for the payment of the separate indebtedness of certain annexed districts),” approved March 17, 1908.

      8. That the Pennsylvania Company has caused to be paid the September installments for the year 1908 of the taxes assessed and levied by the said ordinance approved March 17, 1908, and referred to in the seventh paragraph of the bill, upon properties mentioned in exhibit “A,” and as assessed as therein shown, in so far as said ordinance has levied taxes of 9.5 mills upon each dollar of valuation for the payment of ordinary current expenses of the city; also, taxes of four mills upon each dollar of valuation for the use of the central board of control having charge of the Allegheny school district; also the taxes of various millages upon each dollar of valuation for the uses of the subdistrict schools, of the respective wards in which the properties are situate. The March installment for the year 1908 of the said taxes is now delinquent, liability for the same in the amount paid upon the September, 1908, installment and for the purposes above mentioned, with the lawful penalty for the delinquency, not being denied in this proceeding.
    • 9. That the said ordinance approved March 17, 1908, purports to levy and assess millage of 5-J mills upon all property taxable for state, county or city purposes within the limits of Allegheny as it existed prior to its annexation with the city of Pittsburg, for the sinking fund and interest on the bonded debt, and for the payment of the separate floating indebtedness of the former city of Allegheny. The millage so fixed at 5£ mills is for the payment of the funded debt of the former city of Allegheny, evidenced by various bonds issued from time to time under various ordinances of the city of Allegheny, and interest thereon. In each of said ordinances authorizing the respective loans, an annual tax was levied upon all property in the city of Allegheny, made taxable by law, sufficient to pay the loan and the interest thereon within thirty years, and providing a sinking fund for the payment of the principal. The various ordinances authorizing the issuance -of bonds from time to time enacted by the city of Allegheny provided that until the bonds issued in pursuance thereof shall be fully paid, “there is hereby levied and assessed annually upon all subjects now by law liable or hereafter to be made liable to assess^ ment for taxation for city purposes, a tax sufficient to pay the interest on said bonds, etc., and also sufficient to pay the principal of said bonds, as they become due and payable, according to their terms, .... The gross separate bonded indebtedness of the former city of Allegheny at the time of the annexation to the city of Pittsburg was $7,539,246, the net debt being $5,899,437.46.
    10. That the said city of Pittsburg claims the right to collect taxes of five and one-third mills upon each dollar of valuation upon the properties of the plaintiffs referred to in exhibit “A” of plaintiffs’ bill, for the sinking funds and interest on the bonded debt, and for the payment of the separate floating indebtedness of the former city of Allegheny.
    11. That by an act of assembly of the commonwealth of Pennsylvania entitled, “An Act to enable the City of Pitts-burg to raise additional revenue,” approved January 4, 1859, P. L. 828, powers are conferred upon the city of Pittsburg, inter alia, as follows, namely:
    “That all real estate situated in said city owned and possessed by every railroad company, shall be and is hereby made subject to taxation for city purposes, the same as other real estate in said city (Pittsburg).”
    12. That the city of Allegheny, prior to its consolidation with the city of Pittsburg, at various times issued bonds, and the ordinances of the said city of Allegheny authorizing such increase of its indebtedness, contained, inter alia, a provision that until all bonds issued in pursuance thereof shall be fully paid, “there is hereby levied and assessed annually upon all subjects now by law liable, or hereafter to be made liable, to assessment for taxation for city purposes, a tax sufficient to pay the interest on said bonds, and also sufficient to pay the principle of said bonds, as they become due and payable, according to their terms.”
    Counsel for plaintiffs have asked us to find the following:
    That none of the plaintiffs’ said tracts or parcels of land mentioned in exhibit “A” of the bill, or of the structures thereon erected, has ever been assessed by the county of Allegheny for the purposes of local or state taxation, as other real estate within the county; and the city of Allegheny prior to its annexation to the city of Pittsburg never levied or attempted to collect taxes for municipal or local purposes on any of the plaintiffs’ tracts of land or the structures thereon erected.
    The statement of the facts contained in this finding is true, but the facts are immaterial to this issue, and hence we decline to find as requested.
    The court found as a conclusion of law that the tax on the real estate in question was a valid one and accordingly dismissed the bill.

      Error assigned was decree dismissing the bill.

      R. H. Hawkins, of Dalzell, Fisher & Hawkins, for appellants.
    The plaintiffs’ properties are tax exempt under general laws: Pennsylvania R. R. Co. v. Pittsburg, 104 Pa. 522; Conoy Twp. Supervisors v. Power Co., 222 Pa. 319.
    The local act of 1859 does not justify a tax to pay Allegheny’s debt simply because Allegheny was annexed to Pitts-burg.
    Allegheny City still exists, to the extent that it must pay its debts under its taxing power — not under Pittsburg’s taxing power: Broughton v. Pensacola, 93 U. S. 266.
    The presumption is against the city: Com. v. R. R. Co., 188 Pa. 169; Tennessee v. Whitworth, 117 U. S. 129 (6 Sup. Ct. Repr. 645).
    That the lower court had jurisdiction to grant the relief prayed for in this bill, we believe to be beyond question, and cite: Arthur v. School District, 164 Pa. 410. The question of want of jurisdiction was never raised, as required by the Act of June 7, 1907, P. L. 440. Jurisdiction in equity was sustained in the similar case of Pennsylvania R. R. Co. v. Pittsburg, 221 Pa. 90.

      Lee C. Beatty, first assistant city solicitor, with him C. A. O’Brien, city solicitor, for appellee.
    By the annexation act, Allegheny was annexed to the city of Pittsburg, and the laws of the city of Pittsburg are supreme over the city of Allegheny. Upon such annexation, according to the uniform decisions of the courts, the corporate existence of the city of Allegheny ceased: Mount Pleasant v. Beckwith, 100 U. S. 514.
    January 3, 1910:
   Opinion by

Mr. Justice Elkin,

This is an injunction bill filed to restrain the consolidated city of Pittsburg from collecting a tax of five and one-third mills upon the assessed valuation of certain real estate belonging to the appellant companies located in the former city of Allegheny and which prior to the consolidation of the two cities was not subject to taxation as real estate because deemed to be essential and necessary to the exercise of the franchises of these public service corporations. The tax in question was levied by ordinance for “the purpose of'providing sufficient revenue for the payment of the interest on the funded debt, and to provide sinking funds, as required by law, for the retirement of said debt at maturity.” This ordinance covered generally all of the constituent parts of the consolidated city, but as to the old city of Allegheny it expressly provides as follows: “For the sinking fund and interest on the bonded debt, and for the payment of the separate floating indebtedness of the city of Allegheny as it existed prior to its annexation with the city of Pittsburg — upon all property taxable for state, county or city purposes within the limits of said city, as it existed prior to its annexation with the city of Pittsburg, five and one-third mills upon each dollar of valuation.” A literal reading of the ordinance would seem to be a complete answer to the contention made in behalf of the city seeking to levy and collect the tax in question. The officers authorized to assess the property and collect the tax have no greater power than the ordinance gave them, which was to levy and collect for the purposes stated a tax of five and one-third mills upon the valuation of “ all property taxable for state, county or city purposes within the limits of said city, as it existed prior to its annexation with the City of Pittsburg.” It is conceded by all parties and has been found as a fact by the learned court below that the particular real estate affected by this proceeding and now sought to be taxed was not taxable for state, county or city purposes prior to the consolidation of the two cities. The ordinance only imposed a tax on property taxable by the old' city of Allegheny and contains no warrant to include property which never had been, and under the law could not have been, taxed by that city. The lawmaking body of the consolidated city must have had this thought in mind because the intention to limit the levy to property taxable by the annexed city at and prior to the time of annexation is clearly expressed. There is good reason for the action of councils thus taken. Section eight of the consolidating act provides: “Each of the constituent cities, and the intervening land, if any, so consolidated, shall pay its own floating and bonded indebtedness and liabilities of every kind, and the interest thereon, as the same existed at the time of annexation; and the councils of the consolidated city shall levy, respectively, on the properties in each of the said cities and intervening land so consolidated, and as they existed at the time of annexation, a tax sufficient to provide funds for each to pay its own floating and bonded indebtedness and liabilities and interest, as the same may accrue.” The power of the legislature to thus provide is not open to serious question. The general rule is that when two or more cities are consolidated into one municipality, the legislature by the act authorizing the consolidation may make the consolidated city liable for the indebtedness of the old municipalities; or it may provide for an equitable apportionment of the existing burdens by requiring each of the respective municipalities to be responsible for its own indebtedness at the time of consolidation, and by providing for the payment of such indebtedness by taxation limited to the property located within the limits of the municipality contracting the same. It is not necessary to cite authorities to sustain this rule, as it is of general application unless otherwise provided by constitutional requirements. Here, then, we have in the act of consolidation an express provision that each of the constituent cities shall pay its own floating and bonded indebtedness and liabilities of every kind existing at the time of annexation, and the interest thereon. The councils of the consolidated city are authorized to levy on properties respectively located within each of said cities a tax sufficient to provide funds to pay the existing indebtedness of each municipality at the time- of consolidation. The legislature had the power to thus provide, and the language of the statute is so plain as to leave no doubt about its exercise. With the express provision of the act before them the citizens of the two cities voted in favor of consolidation, but it was consolidation upon the conditions and subject to the provisions of the act authorizing the same.

As to existing floating and bonded indebtedness each city was left with its own obligations, and the taxable property located within the territorial limits of each contracting municipality is subject to taxation for the purpose of meeting this burden which has not been shifted to other shoulders. In other words, property taxable by the former city of Allegheny remains subject to taxation for the purpose of paying its then existing bonded and floating indebtedness, and property then taxable by the old city of Pittsburg remains subject to taxation for the payment of its prior indebtedness. This of course does not mean that if by general statute, or rule of law, or added improvements, new taxable subjects are created in either city, they would be exempt from taxation. No such construction could or would prevail. But in this instance it is not necessary to rely on a rule of construction because the original ordinances under which the indebtedness of the city of Allegheny was created provide, inter alia, that “there is hereby levied and assessed, annually, upon all subjects now by law or hereafter made liable to assessment for taxation for city purposes, a tax sufficient to pay” interest and create a sinking fund as required by law. Not only do the original ordinances provide for the annual assessment and levy of taxes upon all subjects now by law or hereafter made taxable, but in the absence of any such provision, the words “taxable property” must be held to include all subjects of taxation within the territorial limits of the contracting municipality at the time the indebtedness was created as well as all taxable subjects added in fact or by law during the continuance of the debt. The important fact to keep in mind in the present case is that only property taxable in the old city of Allegheny, or which under the law may become taxable therein, can be subjected to taxation for the purpose of liquidating its floating and bonded indebtedness at the time of annexation. The properties of the appellant companies sought to be taxed are essential and necessary to the exercise of the franchises of these public service corporations, and as such are not now and never were subject to taxation by the city of Allegheny for municipal purposes. The consolidating act did not confer upon the consolidated city the power to create any new subjects of taxation either within the "old limits of each of the constituent cities, or indeed within the limits of the consolidated city treated as a single municipality. There is a wide difference between the authority to levy and assess a tax and the power to create a subject of taxation. Municipalities are the creatures Of the state and have no powers except such as have been expressly conferred by the legislature or which arise by necessary implication. With this distinction in mind the difficulties which seem to have arisen in the present case are easily solved. The power conferred by section eight of the consolidating act upon councils was to levy a tax upon taxable properties located in the respective cities, as they existed at the time of annexation. This did not include the power to create a new taxable subject in the former city of Allegheny for the purpose stated. Taxable subjects are created by general laws, except in some instances where prior to the adoption of the new constitution,-local acts were passed providing for the assessment of certain lands of property, not subject to taxation under general statutes, for local purposes. Such acts could not now be passed, but when not repealed they have been held to be in force within the limits of the district affected for the purpose intended. Real estate in the city of Allegheny was taxable under the general law and was not affected by any local act imposing a tax for municipal purposes on the properties of the appellant companies. We find nothing in the consolidating act which authorized councils of the consolidated city to levy a tax upon any other property within the limits of the city of Allegheny for the purpose of paying its existing indebtedness, than was taxable under general laws. There are other interesting questions passed upon by?" the learned court below and ably argued here, but for the reasons hereinbefore stated, the decree must be reversed and no useful purpose will be served by a further discussion of them. We therefore hold that the properties of the appellant companies, not subject to taxation at the time of annexation, were not made subject to taxation for the purpose of providing for the payment of the floating and bonded indebtedness of the former city of Allegheny and the interest accrued and accruing thereon, by the act of consolidation, and that by reason thereof the decree entered by the court below must be reversed.

Decree reversed, bill reinstated and record remitted with directions to enter such decree in accordance with the views herein expressed as will protect the rights of the parties.

Costs to be paid by appellee.


author: Per Curiam,

text:
    Hollis v. United States Glass Company, Appellant.

      Negligence — Master and servant — Explosion of boiler.

    In an action against an employer to recover damages for the death of an employee, caused by the explosion of a boiler, the case is for the jury where there is testimony tending to show that both the general manager of the defendant's works and the superintendent of the factory where the accident happened, had cause to know, notwithstanding the reports of inspection, that the boiler was unsafe.
    Argued Oct. 20, 1909.
    Appeal, No. 90, Oct. T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1905, No. 1,185, on verdict for plaintiff in case of Margaret A. M. Hollis v. United States Glass Company.
    Before Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Shafer, J.

      January 3, 1910:
    The facts appear by the report of the case in 220 Pa. 49.
    Verdict and judgment for plaintiff for $7,750. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      William M. Hall, for appellant.

      Rody P. Marshall, with him Thomas M. Marshall and Robert G. Woodside, for appellee.
   Per Curiam,

A former judgment in this case was reversed because of the refusal of the court to withdraw a juror and continue the case after objectionable remarks prejudicial to the defendant had been made by plaintiff’s counsel in his argument to the jury: see 220 Pa. 49. But it was said in the opinion of this court that the case could not have been withdrawn from the jury because there was testimony tending to show 'that both the general manager of the defendant’s works and the superintendent of the factory where the accident happened had cause to know, notwithstanding the reports of inspection, that the boiler that exploded was unsafe. The testimony at the second trial was substantially the same in all material respects as that at the first trial. There are circumstances under which one using steam boilers must of necessity rely upon the certificate of a competent inspector, but such certificate will not be a protection, if, notwithstanding it, he had knowledge of defects: McNeil Brothers Co. v. Crucible Steel Co., 207 Pa. 493. Whether the plaintiff’s husband knew or was chargeable with knowledge of the unsafe condition of the boiler was under the testimony also a question for the jury.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Dorsett, Appellant, v. Dorsett.

      Evidence — Competency of witness — Husband and wife — Act of June 8, 1893, P. L. 345 — Constitutional law — Title of statutes.

    1. The Act of June 8, 1893, P. L. 345, entitled, “An act relating to husband and wife, enlarging her capacity to acquire and dispose of property, to sue and be sued, .... and enabling them to sue and to testify against each other in certain cases,” is comprehensive enough in its title to authorize a provision in the act conferring power upon husband and wife to sue each other at law or in equity.
    2. On a bill in equity by a husband against his wife who had deserted him, to compel a conveyance to him of land belonging to himself, but standing in her name, the husband is a competent witness in his own behalf.
    Argued Oct. 20, 1909.
    January 3, 1910:
    Appeal, No. 91, Oct. T., 1909, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 468, dismissing bill in equity in case of Samuel Dorsett v. Elizabeth Dorsett.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction, an account, and for a conveyance of real estate. Before Swearingen, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were (1) decree dismissing the bill and, (2) refusal to permit the plaintiff to testify.

      R. S. Martin, with him Jere Carney, for appellant,
    cited: Kline v. Kline, 2 Blair County Reps. 187.

      J. B. Orr, with him H. I. Riley, for appellee,
    cited: Heckman v. Heckman, 215 Pa. 203.
   Opinion by

Mr. Justice Mestrezat,

This is a bill in equity filed by the plaintiff against his wife praying for an account and that the defendant be restrained from transferring or incumbering the real estate described in the bill and be decreed to hold the undivided one-half thereof in trust for plaintiff and be directed to convey the same to him. It is averred that “ in August, 1905, defendant deserted the plaintiff and separated herself from him without sufficient cause and has not lived with or had any marital relations with him since.” The defendant filed a responsive answer which denied the material allegations in the bill.

On the trial of the cause, the plaintiff was offered as a witness in support of the allegations in the bill. The defendant objected to the competency of the witness on the ground that he was the husband of the defendant and for that reason could not testify against her. The court sustained the objection, and the testimony was excluded. This is assigned for error, and raises the only question in the case.

Section three of the Act of June 8, 1893, P. L. 345, 3 Purd. (13th ed.) 2461, provides that a married woman may sue and be sued civilly in all respects and in any form of action and with the same effect, result and consequences as an unmarried person, but prohibits her from suing her husband, except in a divorce proceeding, “ or in a proceeding to protect or recover her separate property whensoever he may have deserted or separated himself from her without sufficient cause, or may have neglected or refused to support her.” The same section provides that a husband may not sue his wife except in a divorce proceeding, “ or in a proceeding to protect or recover his separate property whensoever she may have deserted him or separated herself from him without sufficient cause.” It will be observed that this section authorizes either to sue the other in any proceeding to protect or recover separate property when there has been a desertion without cause. That section of the act, however, does not authorize either a husband or wife to testify against the other. It simply confers upon either the right to bring an action against the other for the purpose designated in the act.

Section four of the act deals with the qualifications of the parties to testify in actions brought under section three. It provides: “In any proceeding brought by either (husband or wife) under the provisions of section three to protect or recover the separate property of either, both shall be fully competent witnesses, except, that neither may testify to confidential communications made by one or the other, unless this privilege be waived upon the trial.” This section therefore specifically provides that when the action is brought under section three “to protect or recover the separate property of either, both shall be fully competent witnesses.” The language of this section is broad enough, we think, to include a proceeding in equity by either against the other for the purpose stated in the former section of the act. The third section, it will be noted, permits a married woman to sue or be sued civilly and in any form of action the same as an unmarried person. In any form of action or in any proceeding, therefore, he or she may proceed against the other to protect his or her separate property. This includes a suit in equity as well as an action at law, notwithstanding the fact that prior to the passage of the act either the husband or wife might sue each other in equity for the same purpose. When, therefore, the third section provides that either shall be a competent witness against the other “in any proceeding” brought under section three, we think that either may testify against the other in a proceeding in equity to protect or recover his or her separate property. It follows that in the case before us the plaintiff was a competent witness in his own behalf, and it was error in the court to exclude him.

The learned trial judge in holding the plaintiff incompetent as a witness followed what was said in Heckman v Heckman, 215 Pa. 203. That was a bill filed by the wife against her husband to cancel a deed and compel a reconveyance of real estate. We sustained the trial court in holding that equity had jurisdiction in such cases, and that the parties were not competent to testify against each other. The parties wore and had been living together, and hence the proceeding was not within the act of 1893 which permits a wife to bring a suit against her husband, and allows her to testify against him “whensoever he may have deserted or separated himself from her without sufficient cause, or may have neglected or refused to support her.” In the Heckman case the parties were living together as husband and wife and neither had deserted the other; but when one of the parties has deserted the other and the marital relations have ceased to exist, we are of opinion that the third section permits the party to bring an action either at law or in equity, notwithstanding either could have maintained a bill prior to the passage of the act, and that therefore the parties are competent to testify against each other in any such proceeding.

We think the title to the act is sufficiently comprehensive to include suits in equity. It is, “An act relating to husband and wife, enlarging her capacity to acquire and dispose of property, to sue and be sued, .... and enabling them to sue and to testify against each other in certain cases.” This is ample to authorize a provision in the act conferring power upon either to sue at law or in equity.

The second assignment of error is sustained and the decree is reversed with a procedendo.


text:
    Ott v. General Fire Extinguisher Company, Appellant.

      Negligence~Master and servant — Defective building — Case for jury.

    In an action to recover damages for the death of defendant’s superintendent caused by the falling of a tank containing 15,000 gallons of water, the case is for the jury where the evidence tends to show that the tank fell because the steel substructure on which it rested gave way, that the substructure .was defective in design and of insufficient strength to support the tank when filled with water; and that the design was an unusual one and had been selected and approved by the defendant.
    Argued Oct. 20, 1909.
    Appeal, No. 101, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1905, No. 488, on verdict for plaintiff in case of Pamelia Ott v. General Fire Extinguisher Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart., JJ.
    Affirmed.

      January 3, 1910:
    Trespass to recover damages for death of plaintiff’s husband. Before Ford, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for-$12,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Wm. S. Dalzell, of Dalzell, Fisher &, Hawkins, for appellant.

      A. B. Reid, with him W. F. McCook, B. J. Jarrett and A. V. D. Watterson, for appellee.
   Per Curiam,

The plaintiff’s husband was employed by the defendant to superintend the installing of an automatic fire extinguishing system and was killed by the falling of a tank, containing 15,000 gallons of water, which a subcontractor finder the defendant had constructed on the roof of the building. The testimony on behalf of the plaintiff tended to show that the tank fell because the steel substructure on which it rested gave way; that the substructure was defective in design and of insufficient strength to support the tank when filled with water; and that the design was an unusual one and had been selected and approved by the defendant. The court could not properly have said that under the testimony the plaintiff had not made out a case for the jury.

•The judgment is affirmed.


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    Owecka v. Nowak.

      Attachment execution — Fraudulent combination to defeat creditors— Case for jury.

    In. an action against a garnishee in an attachment execution, the case is for the jury where the evidence is ample to justify a finding of a fraudulent combination to defeat creditors, and that the assignment of the property attached was not made in payment of a debt, if one existed, but as a cover to conceal the debtor’s property from other creditors.
    Argued Oct. 20, 1909.
    January 3, 1910:
    Appeal, No. 103, Oct. T., 19.09, by Leon Sadowski and Damian Wahl, Garnishees, from judgment of C. P. No. 1, Allegheny Co.,'June T., 1905, No. 366, on verdict for plaintiff in case of Stephania R. Owecka v. John Nowak and Leon Sadowski and Damian Wahl, Garnishees.
    Before Pell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Attachment execution. Before Brown, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $3,647.83. Garnishees appealed.

      Error assigned was in submitting the case to the jury.

      William A. Jordan, with him George P. Murray, for appellant.

      Robert Woods Sutton, with him Watson & Freeman, for appellees.
   Per Curiam,

This appeal is from a judgment against garnishees in an attachment execution. The question of fact at the trial was whether property of the defendant in the judgment had been assigned by him to one of the garnishees in good faith in payment of an existing debt, or whether the assignment was a mere pretense to hinder and defraud creditors by concealing the defendant’s property. This question was submitted to the jury with instructions that a debtor might lawfully prefer a creditor, and that the mere fact of preference was not ground for the inference of a fraudulent intention. The assignments of error relate to the refusal of the court to withdraw the case from the jury by a direction to find for the garnishees. This could not have been done. There was ample evidence to justify the finding of a fraudulent combination to defeat creditors and that the assignment was not made in payment of a debt, if one existed, but as a cover to conceal the debtor’s property from other creditors.

The judgment is affirmed.


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    Cote, Appellant, v. Langton.

      Trusts and trustees — Title to real estate — Execution—Notice of trust— Sheriff’s sale.

    Where a trustee conveys real estate which he has held as trustee for himself and for his brothers and sister to another person by a deed which does not show the trust, but the grantee on being informed of the trust agrees to hold it on the same trusts as the grantor, a judgment creditor of the grantor who purchases the property at a sheriff’s sale, with full knowledge of the facts relating to the trust, takes no more than the original trustee’s individual interest in the property.
    Argued Oct. 21, 1909.
    Appeal, No. 117, Oct. T., 1909, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 456, dismissing bill in equity in case of George M. Cote v. Thomas M. Langton, Sidney F. Langton, Andrew G. Langton, James A. Langton, Meade S. Langton and Ulysses G. Vogan.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity by a judgment creditor of Thomas M. Langton.

      January 3, 1910:
    Frazer, P. J., filed an opinion which-was in part as follows:
    The purpose of the bill was to enjoin defendants from asserting title to certain real estate situated in Chartiers township, or claiming any interest therein as individuals, trustees or otherwise.
    In our opinion the testimony clearly shows that Thomas M. Langton held the property in controversy in trust for himself and his brothers and sister. This fact was known to plaintiff long before he purchased the property at sheriff’s sale. Consequently plaintiff by his sheriff’s deed took no more than the interest of Thomas M. Langton. The situation was not changed in the least by the deed from Thomas M. Langton to U. G. Vogan. Mr. Vogan acted at the request of a fellow member of the bar in taking title to the property, and understood that he was taking it merely as trustee for Thomas M. Langton. Upon learning shortly afterward that Langton himself held as trustee for himself and brothers and sister, Vogan immediately agreed to hold the property under the same trusts and conditions that Thomas M. Langton held it. Under these circumstances plaintiff takes no more than the interest of Thomas M. Langton.
    The court entered a decree dismissing the bill.

      Error assigned was decree dismissing the bill.

      S. S. Robertson, for appellant.

      Harvey A. Miliar, for appellees.
   Per Curiam,

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


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    Rellihan v. Pennsylvania Company, Appellant.

      Negligence — Railroads—Bridge—Defective hand rail — Contributory negligence — Case for fury.

    In an action against a railroad company to recover damages for death of plaintiff's husband caused by the defective condition of a hand rail of an overhead bridge, the question of the deceased's contributory negligence is for the jury where there is no evidence that he had actual notice of the condition of the hand rail, or that its defective condition was so obvious and apparent that he must have known the condition from passing over the bridge daily.
    Argued Oct. 21, 1909.
    Appeal, No. 118, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 63, on verdict for plaintiff in case of Margaret A. Rellihan v. Pennsylvania Company, Operating the Pittsburg, Fort Wayne & Chicago Railroad.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Davis, J.
    At the trial the jury returned a verdict for plaintiff for $5,000.
    On a motion for judgment non obstante veredicto, Davis, J., filed the following opinion:
    The defendant contends that the evidence in this case shows such contributory negligence on the part of deceased that the plaintiff cannot recover and that the jury should have been so instructed as requested by the defendant on the trial of the case.
    The defendant company, by authority of the city of Allegheny, had erected a foot bridge for public use over its tracks known as the Island Avenue bridge, and under the ordinance authorizing the erection of the bridge it was the duty of the defendant to maintain and keep the structure in repair. On both sides of the bridge were hand rails about twenty-eight inches in height for the purpose of protecting the public in crossing the bridge.
    It appeared from the testimony that one of the hand rails had become loose, weak or “rotten” as described by the witness, for such length of time that the defendant would have constructive notice of its defective condition. The hand rail had a play of twelve to fifteen inches, that is, when force was applied it would sway from six to eight inches either way from an upright position.
    Mr. Rellihan, the husband of plaintiff in this case, was passing over this bridge on March 22, 1905, and as he ascended the steps on the bridge he had his hand on this defective hand rail, when he slipped and fell back against the hand rail. The hand rail not being firm, and not giving him proper support, and swaying away from him, caused him to lose his balance and fall backward over the hand rail to the street below, causing his death.
    The deceased crossed this bridge daily in going to and from his work, and counsel for defendant contends in his argument on this motion that if the hand rail was in such defective condition as to visit the defendant company with notice of its condition, that it ought also to bring notice to the decedent, who passed over the bridge daily.
    The decedent stood in an entirely different position than the defendant. The defendant owed a duty to the public to keep and maintain the hand rail in good repair and in safe condition to protect those using the bridge. The deceased had the right to use the bridge and cannot be held to notice unless the defective condition of the hand rail was such as to give him actual notice. There was no evidence in the case that he knew or had actual notice of the condition of the rail, nor was the condition of the hand rail so obvious or apparent as to give him actual notice of the danger, nor was evidence sufficient for the court to say, as a matter of law, that he could have had actual notice the day of the accident when he ascended the steps of the bridge, having his hand on this defective rail. The hand rail at all times presumably stood in its natural upright position, and required pressure or force to ascertain that it would give way. Mr. Louis Laibold, a witness, said he knew it swayed a foot because he had tested it. Mrs. Rellihan testified that she examined the rail directly after the accident; that it swayed “from eight to ten inches, and from a foot to a foot and a half by giving it a good shove. If you laid up against it temporarily it would sway from eight to ten inches,” that is, by using force or pressure it would give each way eight to ten inches, or an entire movement of a foot to a foot and a half.
    January 3, 1910:
    The duty of the deceased was ordinary care under all the circumstances, and no evidence appearing in this case that he had actual notice of the condition of the hand rail, or that its defective condition was so obvious and apparent that he must have known the condition, from passing over the bridge daily, or that in ascending the stairs and passing over the bridge on the day of the accident, with his hand on the rail, he was using sufficient force or pressure to give him actual notice that he could not rely on the hand rail for support and protection, the court could not say — as a matter of law — that he was guilty of contributory negligence.
    The court is therefore of opinion, that it was for the jury to say, under all the evidence and the circumstances of the case, whether the decedent was guilty of contributory negligence or not, and the motion for judgment non obstante veredicto is refused, with leave to plaintiff to enter judgment on the verdict.

      Errors assigned were (1) refusal of binding instructions for defendant; (2) in overruling motion for judgment for defendant non obstante veredicto.

      R. H. Hawkins, of Dalzell, Fisher & Hawkins, for appellant.

      James W. Kinnear, with him T. D. McCloskey & W. E. Best, for appellee.
   Per Curiam,

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


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    Groves v. McNeil, Appellant.

      Negligence — Master and servant — Vice principal — Fellow servant— Question for jury.

    1. In an action against an employer to recover damages for the death of an employee resulting from the breaking of a steel hanger of a scaffolding upon which the deceased was employed, the question as to whether the foreman in charge of the work was a vice principal or a fellow servant is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the foreman had entire charge of the particular department of the work where the accident occurred; that he employed and discharged men; that he was directed by defendant to procure from a particular steel company materials necessary for the building of the scaffolding; that in doing so he selected without inspection or testing steel that was brittle, insufficient in thickness and unsuited for making hangers, and that the accident was caused by the brealdng of one of the hangers made from such steel.
    2. One who has been placed in entire charge of a distinct branch of his employer’s business not merely to superintend it but to control it, with no one else to exercise any discretion or oversight, is a vice principal.
    3. An employee whose duty it is to build a scaffold is providing a place to work, and in so doing he is charged with the duty of his employer, which could not be delegated by the employer so as to relieve him from liability for its improper performance. In selecting materials for the scaffold the employee was vested with a discretion as to what was necessary which the employer could not delegate except at its peril.

      Negligence — Damages—Death—Parent and child — Age of mother.

    4. The age of a mother suing for the death of a son, should be made to appear, but if no objection to the failure of proof on this subject is raised at the trial and the record shows that the mother was present and testified, and the jury had an opportunity of seeing her, the failure of proof as to her age is not ground for reversing the judgment in her favor.
    Argued Oct. 21, 1909.
    Appeal, No. 123, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 951, on verdict for plaintiff in case of Catherine Groves v. James McNeil and Brother Company.
    Before Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.

      January 3, 1910:
    Trespass to recover damages for death of plaintiff’s son. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,100. Defendant appealed.

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

      William M. Hall, for appellant.

      Rody P. Marshall, with him Thos. M. Marshall, for appellee.
   Opinion by

Mr. Justice Fell,

The plaintiff’s son was a structural iron worker in the employ of the defendant, a contractor engaged in building a blast furnace for the Cambria Steel Company. He was killed by the falling of a swinging scaffold on which he was working at the top of the furnace, eighty-five feet from the ground. It was customary to suspend scaffolds by ropes, and the scaffold in use had been suspended by ropes provided by the defendant, but because of the danger of the ropes.being worn and weakened by the edge of the steel structure at the top of the furnace, John Shipman, who had charge of the work, decided that steel hangers should be used in place of ropes or in addition thereto. He directed a blacksmith in the employ of the defendant to go to the open-hearth department of the steel company and get steel rods and make hangers. All the steel in this department was brittle and unsuited for making hangers. No test was made of the rods, nor was any inquiry made as to the quality of the steel. There was testimony that the rods were of insufficient thickness. The accident was caused by the breaking of one of the hangers. Shipman had been in charge of the work nearly two years; he hired and discharged the men and had full supervision and control of the work. He was supplied by the defendant with materials and appliances necessary in carrying on the work, and he had orders from the defendant to procure from the steel company materials necessary for building the scaffolding. The defendant’s manager went to the work only for the purpose of paying wages when due.

The question whether under the testimony Shipman was a vice principal or a fellow workman was submitted to the jury with full and accurate instructions, to which no exceptions were taken. The appellant’s contention is that there was not sufficient evidence to sustain the finding of the jury that he was a vice principal, and that in selecting material for building the scaffold, outside of that provided, he was merely a fellow workman, for whose' error in judgment the employer was not liable. This contention cannot be sustained. There was ample evidence to sustain a finding that Shipman had been placed in entire charge of a distinct branch of the defendant’s business, not merely to superintend it but to control it, with no one else to exercise any discretion or oversight. Moreover, in building the scaffold he was providing a place to work, and in so doing he was charged with the duty of his employer, which could not be delegated so as to relieve from liability for its improper performance. The case was not, as in Ross v. Walker, 139 Pa. 42, and Staebler v. Warren-Ehret Co., 223 Pa. 129, a case in which the employer had furnished material ample in quantity and quality for doing the work. Shipman had been directed to procure the material for the scaffold from the steel company, and in doing this he was charged with the performance of his employer’s duty and was vested with a discretion as to what was necessary,, which it could not delegate except at its peril. The case cannot be distinguished in principle from the recent case of Carr v. Gen. Fire Extinguisher Co., 224 Pa. 346, in which a corporation was held liable for the action of a foreman who had instructions to draw on the company’s storehouse for supplies of tools and appliances, but procured a defective ladder elsewhere in the use of which a workman was injured.

It is argued that in the absence of proof of the plaintiff’s age, there was no evidence from which the jury could determine the proper measure of damages. Her age should have been proved, because the loss for which she sought compensation was the pecuniary advantage she might reasonably have expected to receive from her son for the remainder of her life. No objection to the failure of proof on this subject was raised at the trial, and the failure is not ground for reversal. She was present at the trial and testified, and the jury could form at least an approximate estimate,of her age from her appearance and from facts in relation to her family to which she testified.

The judgment is affirmed.