author: Me. Justice Pottee,

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

      Negligence — Street railways — Crossing tracks — Death—Contributory negligence — Nonsuit.
    In an action against a street railway company to recover damages for the death of plaintiff's husband, it appeared that at the time of the accident the deceased walked slowly from the sidewalk of a street on which were two street car tracks. He crossed the nearest track in front of an approaching south bound car which came to a standstill within a few feet of the place where he crossed. The motorman of this car testified that he saw an approaching north bound car, and warned the deceased as he was passing, and the latter responded, “Oh, all right.” He then stepped across the first rail of the next track but instead of drawing back, or proceeding rapidly straight ahead to clear the second track, he turned to the left and turned back into the space between the two tracks, and while standing there was caught between the two cars and killed. Held, that a nonsuit was properly entered.
    Argued April 2, 1908.
    Appeal, No. 103, Jan. T., 1908, by plaintiff, from order of O. P. No. 5, Phila. Co., March T., 1906, No. 4,042, refusing to take off nonsuit in case of Sophia Mc-Vaugh v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Staake, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      George Lemming, with him Edgar W. Lanío, for appellant.—
    Where the evidence is conflicting, or the facts are left in doubt, the conclusions are to be drawn by the jury : Davidson v. Railway Co., 171 Pa. 522; Elston v. R. R. Co., 196 Pa. 595.
    Whether the presumption that deceased exercised due care has been rebutted is for the jury, unless the evidence to the contrary is clear, positive, credible and indisputable, and any inferences to be drawn from this evidence are also for the jury, unless the inferences are so clear as to admit of no dispute: Unger v. R. R. Co., 217 Pa. 106; Kreamer v. R. R. Co., 214 Pa. 219; Schwarz v. R. R. Co., 218 Pa. 187; Armstrong v. Traction Co., 216 Pa. 595 ; Howard v. R. R. Co., 219 Pa. 358; Mosten v. Ry. Co., 218 Pa. 392.
    May 26, 1908:

      Thomas Learning, with him Bussell Duame, for appellee.
    There was no sufficient evidence of negligence on the part of the defendant: Kelly v. Traction Co., 211 Pa. 456; Moss v. Traction Co., 180 Pa. 389 ; Johnson v. Ry. Co., 160 Pa. 647; Gould v. Traction Co., 190 Pa. 198 ; Young v. Omnibus Co., 180 Pa. 75 ; Mulcahy v. Traction Co., 185 Pa. 427; Kochesperger v. Phila. Rapid Transit Co., 217 Pa. 320.
    The decedent, having neither stopped nor looked for a car before stepping upon the track where he was instantly struck, was guilty of contributory negligence : Blaney v. Electric Traction Co., 184 Pa. 524; Watkins v. Union Traction Co., 194 Pa. 564; Sullivan v. Consolidated Traction Co., 198 Pa. 187; McCracken v. Consolidated Traction Co., 201 Pa. 378; Kochesperger v. Phila. Rapid Transit Co., 217 Pa. 320.
    The contributory negligence of the decedent was demonstrated by his being instantly struck as he stepped upon the track, even without considering the uncontradicted evidence that he did not look: Carroll v. Penna. R. R. Co., 12 W. N. C. 348 ; Boring v. Traction Co., 211 Pa. 594; Piatt v. Rys. Co., 219 Pa. 583 ; Davidson v. Ry. Co., 171 Pa. 522; Flanagan v. R. R. Co., 181 Pa. 237 ; Hess v. R. R. Co., 181 Pa. 492; Baker v. R. R. Co., 182 Pa. 336; Coppuck v. R. R. Co., 191 Pa. 172.
   Opinion by

Me. Justice Pottee,

This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit. The plaintiff sought to recover damages under the allegation that the death of her husband was caused by the negligence of the defendant company. Mr. McYaugh, a man about sixty years old, undertook to cross Germantown avenue, a wide, unobstructed highway, about six o’clock on the evening of February 5, 1906, at or near the intersection of East Sharpnack street. He was caught in the space between two passing cars and killed. At the close of the testimony for plaintiff, in granting the nonsuit, the trial judge said : “ He (the deceased) does not appear to have looked at the proper place, nor did he cross the street at the regular crossing, but went over it diagonally, Germantown avenue being a street with two tracks on it, and cars running in different directions.” It appears from the testimony that Mr. McY augh, the deceased, walked slowly from the sidewalk to the nearest street' car track, and crossed it in front of an approaching south bound car, which came to a standstill within a few feet of the place where he crossed. The motorman of that car says that he realized Mr. McYaugh’s peril from an approaching north bound car, and shouted to him as he was passing, and he responded, “ Oh, all right,” and then stepped across the first rail of the next track, but instead of drawing back or proceeding rapidly straight ahead to clear the second track he curved to the left, and turned back into the space between the two tracks and stood there by the side of the gate of the south bound car. Just then the north bound car reached the spot, and the space between the two cars being very narrow, Mr. McYaugh was caught between the two cars and injured so severely that he died shortly afterwards. The second car was stopped before it had entirely passed the first one, but too late to avoid the accident. There was no evidence of negligence upon the part of the defendant company unless it was in the failure to stop the north bound car before it reached Mr. McYaugh, but his action in stepping upon the track in front of the north bound car and then in swerving back against the side of the south bound car, must have been, under the evidence, almost instantaneous. And, under all the circumstances, the accident was clearly the fault of the deceased in walking deliberately across in front of the south ■ bound car, without at the instant taking note of the near approach of the north bound car upon the track farthest from him. It is not uncommon for pedestrians to step into danger by passing behind one car, over the second track and directly in front of another approaching car, which is hidden from them temporarily by the first car. But in this case the deceased had not even that excuse, for he passed in front of the first car, directly into the path of the second, and when he realized its proximity, and probably by reason of confusion or fright, instead of drawing directly back from the second track, as he might readily have done, he curved around against the side of the first car, and stood in the space between the two tracks, where he was inevitably caught between the two cars.

The learned trial judge could not, under the evidence, have reached any other conclusion than that the accident was the result of negligence of the deceased in passing with heedless steps directly into danger.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Krickbaum’s Contested Election.

      Election law — Contested election — Practice, C. P. — Appeals—Remew— Certiorari.

    Proceedings by certiorari on a summary petition in an election contest occupy a middle ground between those in common-law actions, and equity suits; and the appellate court, in the exercise of supervisory powers in such cases, will not stop with a mere inspection of the formal proceedings, but will examine the opinion of the court below so far as it may be necessary to ascertain the basis of its action.

      Election law — Election contest — Judge of election de facto.

    In the absence of any evidence of fraudulent or wrongful voting, or of fraudulent or improper counting of votes, the entire poll of votes cast in a district will not be rejected, because a person was sworn and acted as the judge of election in place of the regularly elected judge, under the mistaken idea that he had a right to do so since he had acted as judge in the preceding election in the absence of the elected judge.
    In such a ease the officer is a judge de facto by color of authority, and the validity of his acts cannot be questioned so far as they affect third persons.
    Whole communities of electors are not to be disfranchised for the time being, and a minority candidate forced into an office, because one or more of the judges of election have not been duly sworn, or were not duly chosen, or do not possess all the qualifications requisite to the office.

      Public officers — De facto officers — Color of authority — Definition of de facto officer.

    A de facto officer is one who is in possession of an office and discharging its duties under color of authority, and by “color of authority” is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer.
    Argued April 15, 1908.
    Appeal, No. 55, Jan. T., 1908, by William Krickbaum, from order of Q. S. Columbia Co., Dec. Term, 1907, No. 32, in election contest of Election of William Krickbaum as Associate Judge of Columbia County.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Petition to contest the election of William Krickbaum as associate judge of Columbia county. Before Evans, J.
    From the record, it appeared that the court below rejected all of the votes cast in Mifflin township at an election held on November 5,1907, and entered an order declaring that George M. Hughes and not William Krickbaum had received a majority of the legal votes cast in the county for the office of associate judge.

      Error assigned was the order of the court.

      Fred Feeler, with him James Gay Gordon, for appellant.
    This court may examine the whole record and the opinion of the court in a proceeding such as this: Independence Party Nomination, 208 Pa. 108; Mulholland’s Case, 217 Pa. 631.
    The conduct of election officers, although clearly illegal and in violation of a plain direction of the election laws, will not be allowed to defeat the expressed will of the people, where there is no reason to believe that the-officers acted fraudulently, or in bad faith, or that their conduct changed, altered or rendered uncertain the return of the election: Thompson v. Ewing, 1 Brewster, 67; Boileau’s Case, 2 Parsons, 503; Daly v. Petroff, 10 Phila. 389 ; In re Justices of the Peace, 11 Pa. Dist. Rep. 731; Weaver v. Given, 1 Brewster, 110.
    As between the contestants and Krickbaum, the respondent, Whitney Hess, was the de facto judge of election in Mifflin township, at the November election: Thompson v. Ewing, 1 Brewster, 67; Clark v. Com., 29 Pa. 129; Campbell v. Com., 97 Pa. 311.

      Geo. S. Graham, with, him Clyde Chas. Yetter, for appellee.
    —It is the undoubted law of the state of Pennsylvania, and has been unquestioned, that on a writ of certiorari neither the evidence nor the opinion of the court is brought up for review by the appellate court: Yonkin’s Contested Election, 13 Atl. Repr. 750; Com v. Ramsay, 166 Pa. 642; Lyon v. Dunn, 196 Pa. 90; Election Cases, 65 Pa. 20; Carpenter’s App., 11 W. N. C. 162; Robb’s Nomination, 188 Pa. 212; Von Moss’s Election, 219 Pa. 453; Mitton’s App., 2 Penny. 380.
    May 25, 1908:
   Opinion by

Mr. Justice Potter,

In the opinion of this court, in Independence Party Nomination, 208 Pa. 108, Chief Justice Mitchell points out, that proceedings by certiorari on a summary petition occupy a middle ground between those in common-law actions, and equity suits. And that the appellate court, in the exercise of supervisory powers in such cases will not stop with a mere inspection of the formal proceedings, but will examine the opinion of the court below so far as may be necessary to ascertain the basis of its action. This statement of the principles and practice by which this court is governed in such cases was again cited and approved in Chester County Republican Nominations, 213 Pa. 64; and it was further pointed out that “ where the facts appear upon the record this court will examine whether the judgment is correct upon such facts and may for that purpose consider the opinion of the court as part of the record.” See also Mulholland’s Case, 217 Pa. 631. The opinion of this court in Von Moss’s Election, 219 Pa. 453, is also consistent with this rule, and in that case we took into consideration the facts presented, as found in the opinion of the court below. In the present case the facts are not dis- ■ puted; they are found and presented by the trial judge as the basis of his action, and it becomes our duty to examine the judgment to see if it is correct upon such facts, and for that purpose, we take them as set forth in the opinion of the trial judge as follows: “ The petition of George M. Hughes was filed in this case on the 4th day of December, 1907, to contest the election of William Krickbaum to the ofiice of associate judge for the county of Columbia. At the general election held on the 5th day of November, 1907, in said county, an associate judge was to be elected. On the canvass of the returns by tbe judges, it appears that William Krickbaum received 3,043 votes and that George M. Hughes received 3,012 votes. The petition alleged that 107 votes were cast for William Krickbaum, and that thirty-nine votes were cast for George M. Hughes in Mifflin township at said election, and that all the votes cast at said election in Mifflin township were illegal and void and should not be counted for either Krickbaum or Hughes in computing the election returns of Columbia county. That if the votes cast at said election' in Mifflin township were not counted George M. Hughes would have received 2,973 votes and that William Krickbaum would have received 2,936 votes. That George M. Hughes received a majority of the legal votes cast for associate judge in Columbia county at the election held November 5th, 1907. The objection to the vote counted for Mifflin township is, that the legally elected judge of election was not permitted to take part in holding the election and that a usurper acted as judge in holding said election.” The court below proceeds to find specifically, “ 1. That at the February election, 1907, in said district of Mifflin township, A. E. Johnson was duly elected as the judge of election, to serve for the ensuing year. 2. That at the next following election in said district, to wit: the June primary election, ■ the said A. E. Johnson did not attend and that thereupon one of the inspectors appointed Whitney Hess as the judge of election, in the place of Johnson, and who, after being sworn, acted as judge during said June primary election. 3. That on the morning of the general election held in said township, on the 5th day of November, 1907, before the polls were opened, tbe said A. E. Johnson appeared at the regularly appointed place for holding the election in said township and demanded to be sworn in as the regularly elected judge of election. 4. That the other election officers refused to administer the oath to the said A. E. Johnson, and further refused to allow him to sit upon said election board, and perform the duties enjoined upon him as the regularly elected judge of the election for said district. 5. That the said A. E. Johnson persisted in demanding his right to sit as one of the said election board; but notwithstanding his demand, Whitney Hess was sworn in as judge of election by the minority inspector, and then said Whitney Hess and other members of the board proceeded to conduct the election without Johnson and receive the votes cast at said polling place, counted and. made return of the same without the said Johnson participating therein. 6. That Whitney Hess acted as judge of the general election held in Mifflin township November 5,1907. That he was not the regularly elected judge of election to hold the November election, 1907, in said Mifflin township. That there was no vacancy in the office of judge of election in Mifflin township on the morning of November 5, 1907, A. E. Johnson, the regularly elected judge of election, being present at the time of opening the polls and demanding his right to participate in the receiving, counting and return of the votes cast at said polling place. 7. That the election returns from Mifflin township for said election show that 107 votes were cast for William Krickbaum for associate judge and that thirty-nine votes were cast for George M. Hughes for associate judge.

“ On the part of the respondent it is contended that the votes of Mifflin township cannot be thrown out. 1. Because the action of Whitney Hess as judge was not in fraud of the rights of either candidate; neither was his appointment fraudulently obtained; nor did his action or the action of the board in allowing him to sit, change, alter or even render uncertain a single vote cast at the election. 2. Because Whitney Hess holding and claiming to hold by virtue of a valid appointment at the June primary election was acting under color of title, and was, therefore, as respects third persons, the de facto judge of election, and his acts as such are binding on the contestant and respondent.

“ On the part of the contestant it is contended, that because the election in Mifflin township was held by a judge of election who was not legally elected or legally appointed the return of votes cast at the poll is illegal and cannot be counted.”

After conceding that the irregular conduct upon the part of the election officers, is not to be allowed to defeat the expressed will of the voters, unless there be fraud, or such conduct as will alter or render uncertain the result, the learned judge of the court below announced his conclusion that Whitney Hess was not de facto judge of election, acting under color of title, but that he was a mere usurper, and he therefore rejected all the votes cast in Mifflin township. How he could have reached this conclusion we do not understand. It is directly in the teeth of, and is entirely unwarranted by, his findings of fact; for he found expressly that in truth and in fact, Whitney Hess was sworn in as judge of election by one of the inspectors, and that he then proceeded with the other members of the board to conduct the election, and receive the votes, and counted and made return of them. So that beyond question he was actually, in fact and in deed, the judge of the election. He performed the duties of the office with apparent right, and under claim and color of an appointment, even though it be granted that he was acting under a mistaken authority. But he was in the exact sense of the term an officer de facto. Now the validity of the acts of officers of election who are such de facto only, so far as they affect third persons, and the public, is nowhere questioned. “ The doctrine that whole communities of electors may be disfranchised for the time being, and a minority candidate forced into an office, because one or more of the judges of election have not been duly sworn, or were not duly chosen, or do not possess all the qualifications requisite for the office, finds no support in the decisions of our judicial tribunals: ” McCrary on Elections (4th ed.), 1897, sec. 251. To sustain this statement, the author cites our own case of Baird v. Bank of Washington, 11 S. & R. 411, where Justice Gibson said (p. 414): “ The question does not depend on whether the appointment is void or only voidable, or whether it emanated from an authority which had full power to make it; but whether the officer has come in under color of right, or in open contempt of all right whatever: The King v. Lisle, Andr. Rep. 163, s. c., 2 Stra. 190. This distinction runs through all the cases. . . . This principle of colorable election holds not only in regard to the right of electing, but also of being elected. A person indisputably ineligible may be an officer de facto by color of election: Knight v. The Corporation of Wells, Lutw. 156. So, even where the office was not vacant, but there was an existing officer de jure at the time: O’Brien v. Knivan, Cro. Jac. 552; Harris v. Jays, Cro. Eliz. 699.”

And in Keyser v. McKissan, 2 Bawle, 139, the case of a county treasurer appointed by county commissioners who had failed to take the oath of office, Justice Rogues said (p. 140) : “ The rule which governs the case is, that the commissioners who appointed the treasurer were officers de facto, since they came into their office by color of title. It is a well-settled principle of law that the acts of such persons are valid when they concern the public or the rights of third persons who have an interest in the act done: The People v. Collins, 7 Johns. 554; King v. Lisle, Andrews’ Rep. 263. And this rule has been adopted to prevent a failure of justice. . . . That the commissioners, who appointed the treasurer, were officers de facto is certain, as they possessed every qualification of officers de jure, except in the one particular that they had omitted taking the oath prescribed by the constitution. They had at least color of title. It is equally clear that the suit was not brought for their individual benefit, but for the use of the public.”

In State v. Oates, 86 Wis. 634, we find this statement: “ Within the rule that a de facto officer is one who is in possession of an office and discharging its duties under color of authority, by ‘ color of authority ’ is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer.”

In the present case, Hess was duly and properly appointed as judge of election at the preceding election, and both he and the other officers assumed that the appointment was good for the remainder of the year, and under this assumption he claimed and was awarded by the other election officers the right to act as judge at the election in dispute. It was a mistake, but the claim and its allowance were enough to give him color of right to the office and to prevent him from being considered as a mere usurper. Certainly the rights of the voters should not be prejudiced by any such irregularity as this. “ It may be said that ‘ color of right ’ which constitutes one an officer de facto may consist in an election or appointment, or in holding over after the expiration of one’s term: ” Hamlin v. Kassafer, 15 Ore. 456.

The effect to be given to such irregularities is discussed in People v. Prewett, 124 Cal. 7, where it was said (pp. 12, 13): “ The court below found that the persons who served as officers of the election were not sworn as required by law; and the appellants cite those provisions of the political and penal codes making it a felony to act as an election officer without having been appointed and qualified as such. But these provisions, while imposing penalities upon the person who so acts, do not declare the election void for that cause. But this has been directly decided in Whipley v. McKune, 12 Cal. 352 (and in other cases cited). The principle underlying those decisions is that the rights of the voters should not be prejudiced by the errors or wrongful acts of the officers of the election, unless it shall appear that a fair election and an honest count were thereby prevented.”

And the general principle governing such a condition as is here presented is thus summed up in 15 Cyc. Law & Procedure, 316: “ It is the duty of the court to sustain an election authorized by law if it has been so conducted as to give a free and fair expression of the popular will, and the actual result thereof is clearly ascertained; for elections should never be held void unless they are clearly illegal. In the absence of fraud, mere irregularities in the conduct of an election, where it does not appear that the result was affected either by the rejection of legal votes or the reception of illegal ones, will not justify the rejection of the whole vote of the precinct, although the circumstances may be such as to subject the officers to punishment.”

And in Wheelock’s Election, 82 Pa. 297, in an opinion approved by this court, it was said : “ When the application of, technical rules and a strict construction of the acts of the officers, in preparing the election papers and conducting an election, would tend to defeat the will of the people and change the result of an election for an important office, they should not be applied, and all reasonable intendments should be made in favor of the legality of their proceedings.”

In the present case the requirements as to time and place of holding the election were entirely fulfilled, and there is no finding that any fraudulent or wrongful vote was offered or accepted. Nor i'S there even a hint of any confusion or carelessness in the conduct of the election. The record and the undisputed facts show nothing irregular, except the fact that Whitney Hess acted as judge of the election, under the mistaken idea that his appointment in place of the regularly-elected judge was good for the current year, instead of being good as it was, merely for the preceding election. But this mistake did not in any way result in obstructing the complete expression of the will of the voters, or the production of satisfactory evidence thereof. Under all the authorities, the irregularity was not, therefore, sufficient to avoid the election, or justify the rejection of the entire poll of the votes cast in the district.

We think it is clear that the judge of the court below erred in his conclusion that Whitney Hess was not de facto an officer, and in his further conclusion that as a consequence, all the votes cast at the election in question in Mifflin township must be rejected. The facts as set forth by him, and for the purpose of this inquiry made part of the record, show no basis for such action; and they do on the contrary clearly show that Whitney Hess was de facto judge of election, acting under color of title. The first assignment is sustained.

The decree of the court below is reversed and it is adjudged and decreed, that upon the finding of facts which appear upon the record in this case, William Krickbaum received a majority of the legal votes cast for associate judge, and was elected to said office on November 5, 1907.


text:
    American Car & Foundry Company v. Alexandria Water Company, Appellant.

      Evidence — Subpoena duces tecum — Particularity of description.

    The same reasonable certainty in describing what is required, should be observed in a subpcena duces tecum, as is held necessary in the case of applications for orders to produce books and papers.
    Where the plaintiff will swear that some specific book contains material or important evidence, and sufficiently describes and identifies what he wants, it is proper that he should have it produced. But this does not entitle him to have brought in a mass of books and papers in order that he may search them through to gather evidence.
    The peculiarity of the subpcena duces tecum, is that in the nature of things it must specify with as much precision as is fair and feasible the particular documents desired; because the witness ought not to be required to bring what is not needed, and he cannot know what is needed unless he is informed beforehand.
    It is unreasonable for a plaintiff to ask from the defendant a blanket list of persons and firms, with whom the defendant had made contracts during a particular year.

      Principal and agent — Authority of agent — Corporation—Power of agent to accept note — Mechanic’s lien — Evidence.
    A party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acted. The burden of proof lies on him to establish the agency and the extent of it.
    Where the defendant in a scire facias sur mechanic’s lien denies the right of the plaintiff, a corporation, to file the lien, because of the acceptance of a note by an agent of the company, the burden is upon the defendant to show that the agent had authority to accept the note as payment, and if the agent denies that he had such authority, and there is no other proof offered, the defendant cannot prevail as to such defense.
    The taking of the notes of a contractor for an amount due to a material man does not of itself effect a relinquishment of the right to file a lien. Nothing less than the agreement of the parties that it shall do so will effect a waiver of such right.

      Practice, C. P. — Judgment—Judgment for plaintiff non obstante veredicto — Act of April 22, 1905, P. L. 286.
    Where a point requesting binding instructions for plaintiff is refused and a verdict is rendered for the defendant, the court may under the Act of April 22,1905, P. L. 286, subsequently enter judgment for plaintiff non obstante veredicto, if a binding direction in favor of the plaintiff would have been proper at the close of the trial.
    Argued April 20, 1908.
    Appeal, No. 81, Jan. T., 1908, by defendant, from judgment of C. P. Huntingdon Co., May T., 1905, No. 23, for plaintiff non obstante veredicto in case of American Car & Foundry Company, subcontractor, v. Alexandria Water Company, owner or reputed owner, and William M. Powell & Company, contractor.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Woods, P. J.
    Before the trial, W. F. Lowery, who had been served with a subpoena duces tecum, petitioned the court to be relieved from producing certain documents. The court for reasons stated in the opinion of the Supreme Court granted the witness the relief which he sought. [1]
    At the trial when Mr. Lowery was on the stand the following request was made:
    Mr. Bailey: Counsel for defendant is not at present making any offer, he is asking the witness who has been subpoenaed with a duces tecum and who has in obedience to that duces tecum produced in court a list of the persons, firms and corporations with whom he has made contracts during the year 1903 ; counsel requests the witness, who has been subpoenaed by the defendant, to allow him to see the list of persons with whom he has contracted during the year 1903 so that the witness may be properly examined by counsel for defendant.
    Mr. Waite : Plaintiff’s counsel objects to the rights of the defendant to go into the private papers and contracts, if there be contracts, of the plaintiff company, with other persons, firms and corporations, and if the gentleman will specify any particular contract or contracts which he desires to have produced and will show how they can become material, then it is a matter for the court to decide whether or not they shall be produced and exhibited.
    The Court: Objection sustained. Evidence excluded. Bill of exceptions sealed for'defendant. [2]
    The facts of the case appear by the opinion of the Supreme Court.
    Yerdict for defendant. Subsequently the court entered judgment for plaintiff for $10,562.59 non obstante veredicto.

      Errors assigned were (1, 2) rulings as to the production of books and documents; (6) in refusing binding instructions for plaintiff; and (9) entering judgment for plaintiff non obstante veredicto.

      Thomas F. Bailey, with him Samuel I. Spy her, for appellant.
    —We contend that upon the issued joined every contract was as material as every other one. Each would tend to show the authority with which Lowery acted in relation to it. It was utterly impossible for us to designate any particular contract which he had made, and if it had been, any particular contract could in no way have been more material than any other contract: Campbell y. Knowles, 13 Phila. 163 ; Dexter v. Walker, 7 Pa. C. C. Rep. 274; Phila. v. McManus, 17 Phila. 4.
    May 25, 1908:
    The Act of April 22, 1905, P. L. 286, was not intended to change the relative functions of court and jury so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do, subsequently, on review of the whole case what it then appeared would have been proper to do by binding'direction at the trial: Dalmas v. Kemble, 215 Pa. 110 ; Bond v. Penna. R. R. Co., 218 Pa. 34; Shannon v. McHenry, 219 Pa. 267.
    Even assuming that all the reasons heretofore advanced against the decree entering judgment non obstante are untenable, yet the judgment would have to be reversed for the reason that the court assumed to determine the scope of Lowery’s authority as a question of law: Seiple v. Irwin, 30 Pa. 513 ; Loudon Saving Fund Society v. Bank, 36 Pa. 496; Lamb v. Irwin, 69 Pa. 436; Lerch v. Bard, 153 Pa. 573 ; Shea v. Quaker City Wheelmen, 9 Pa. Superior Ct. 225 ; Mange-Wiener Co. v. Patton Worsham Drug. Co., 27 Pa. Superior Ct. 315 ; Swing v. Bates Machine Co., 32 Pa. Superior Ct. 103 ; Singer Mfg. Co. v. Christian, 211 Pa. 534; Williams v. Getty, 31 Pa. 161; Harrington v. Bronson, 161 Pa. 296 ; Anderson v. Nat. Surety Co., 196 Pa. 289 ; Empire Implement Mfg. Co. v. Hench, 219 Pa. 135.

      H. H. Waite, with him W. H. <& J. S. Woods and O. C. Brewster, for appellee..
   Opinion by

Mr. Justice Potter,

This was a scire facias upon a mechanic’s lien filed by the American Car & Foundry Company, as subcontractors, against the reservoir and water works and system of the Alexandria Water Company. The right to maintain the lien was sustained by this court, in 215 Pa. 520. A trial was then had under the scire facias which resulted in a verdict for the defendant. Judgment on this verdict was reversed, because of error of the trial judge in permitting certain cross-examination of plaintiff’s witness and in rejecting evidence offered by plaintiff, and a venire facias de novo was awarded: American Car & Foundry Co. v. Water Co., 218 Pa. 512. The case was tried again and the verdict was again for the defendant, subject to points of law reserved. A motion for judgment non obstante veredicto was filed by the plaintiff and granted by the court below and judgment was entered for plaintiff for the full amount of the claim with interest. Defendant has appealed.

There was no dispute as to the contracts, the performance of the work, and furnishing materials, nor as to the amount due the claimant. The defendant denied liability, for the alleged reason that the claimants had accepted notes of the contractors in payment of the balance due upon the account, and had, therefore lost the right to file a mechanic’s lien.

It appears from the evidence that the Alexandria Water Company contracted with William M. Powell '& Company to construct a gravity water system at Alexandria, Huntingdon county, Pa., for $18,000. Powell & Company in turn contracted with the American Car & Foundry Company for the cast iron pipe and specials necessary for the construction of the water plant, -for $12,221.20. The water pipe, etc., were furnished according to the contract, and the contractors paid on account of the contract price, $3,649.98, leaving a balance due of $8,571.22, for which the mechanic’s lien was filed.

William P. Lowery was district manager for the American Car & Foundry Company, having an office at Berwick, Pa., and the contract with Powell & Company was made by him for his company. The payments on account made by Powell & Company were sent by them directly to the home office of the American Car & Foundry Company at St. Louis, Mo. William M. Powell - testified that they remitted to the’home office at St. Louis because they were directed on the invoices to do so. Lowery, who was called by defendant as witness, testified that he had power to make contracts within certain lines for his company, but that he had no authority to make collections or to receive notes, checks or money in payment for the sales made by him; that all collections were made from the treasurer’s office at St. Louis, and that all invoices were dated as from the home office where payments were to be made. There was no evidence that Lowery had any authority to receive payments either in cash or note for the company, or that he at any time received any payments on its behalf.

It appears from the testimony that in December, 1903, Mr. Mandeville, a member of the firm of Powell & Company, accompanied by a lawyer, Mr. Abner Smith, visited Lowery at his office in Berwick with a view to making settlement of the claim. Mr. Smith testified that Mr. Lowery agreed to accept certain notes, but he refused to say that he agreed to accept them in satisfaction of the claim. His memory was indistinct as to that. Mr. Lowery testified that his understanding was, that the notes were to be tendered for the decision of the company, and that a few days afterwards the notes were given to him, and he sent them to St. Louis for the consideration of the company at the home office. The notes were rejected by the company and returned to Lowery, who turned them over to the attorney of the company, with instructions to proceed to collect the claim. He obtained a judgment as collateral for two of them, and also gave notice and filed the lien upon which this scire facias was issued.

The entire defense rests upon Smith’s testimony that the notes were accepted, and the inference which it was strongly urged should be drawn from that fact, that such acceptance was in satisfaction and payment of the indebtedness.

Prior to the trial the defendant served upon Lowery a subpoena duces tecum, commanding him to produce at the trial certain books and papers. It was not specific, but was couched in the most indefinite terms. Thereupon Lowery petitioned the court, setting forth that it would put the plaintiff to a tremendous amount of trouble and expense to produce all the books and papers required by the subpoena ; that it would require a number of very large boxes to transport them and that they would then be exposed to destruction, and that he was advised that the greater part -of the books and papers were not and could not become material in any way to the issue to be tried, and praying that he might be relieved from compliance with the subpoena. The court granted the prayer of the petition, and confined the production of books and papers to such only as might be shown to be material in the case. This action of the court is made the subject of the first assignment of error.

The learned judge was entirely right in his conclusion. The same reasonable certainty in describing what is required, should be observed in a subpoena duces tecum, as is held necessary in the case of applications for orders to produce books and papers. In Cowles v. Cowles, 2 P. &. W. 139, it was held that, where an order for the production of books and papers under the act of February 27, 1798, is asked for, the papers must be described with reasonable certainty. In Wills v. Kane, 2 Grant, 17, Justice Woodward said (p. 51): “The affidavit of notice must describe the books and papers with reasonable certainty — must allege that they are, or at least that the affiant verily believes them to be, in the possession or power of the party — and that they contain evidence pertinent to the issue.”

Anything in the nature of a mere fishing expedition is not to be encouraged. Where the plaintiff will swear that some specific book contains material or important evidence, and sufficiently describes and identifies what he wants, it is proper that he should have it produced. But this does not entitle him to have brought in a mass of books and papers in order that he may search them through to gather evidence. In 23 Am. & Eng. Ency. of Law (2d. ed.), 179, it is said: “ The courts uniformly decline to grant an application for production and inspection where it is merely for the purpose of a fishing examination, as where it is made to discover whether or not there is evidence contained in the documents which will be useful to the applicant, or for the purpose of determining whether he has a cause of action, or a defense, or in anticipation of a defense, or to gratify curiosity.”

And the fair and proper rule upon the subject is also set forth in 3 Wigmore on Evidence (1901), sec. 2200, where it is said: “ A peculiarity of the subpoena duces tecum is that in the nature of things it must specify with as much precision as is fair and feasible the particular documents desired, because the witness ought not to be required to bring what is not needed, and he cannot know what is needed unless he is informed beforehand.” And in a note to above the following cases are cited : Carson v. Hawley, 82 Minn. 201. Demand for all books and papers for a business during three months held insufficient: Ex parte Brown, 72 Mo. 83 (93). There must be a “reasonably accurate description of the papers wanted,” and a showing that it is material in a pending cause; here, a call for all telegrams between half a dozen persons within fifteen months past was held too broad: United States v. Babcock, 3 Dill. 566 (570). “The papers are required to be stated or specified only with that degree of certainty which is practicable, considering all the circumstances of the case, so that the witness may be able to know what is wanted of him and to have the papers on the trial, so that they can be used if the court shall then determine that they are competent and relative evidence.”

An order to produce all papers concerning the matter in dispute is not sufficiently specific. The papers and documents to be produced should be described with reasonable precision. An inspection of the subpoena in this case shows that the court below was fully justified in refusing to compel obedience to what was asked for. The first assignment of error is, therefore, dismissed. For the same reason the second assignment of error is overruled. It was unreasonable to ask for a blanket list of persons and firms with whom contracts had been made during the year. In the absence of all particularity in specifying what was wanted, and without any showing of materiality, the court was right in sustaining the objection to the demand for a general list of contracts with other persons.

With regard to the authority of the agent, Mr. Lowery, to accept the notes in full payment of the claim, this court said, when this case was here before, 218 Pa. 542, that the evidence offered upon the former trial was too meager to enable us in reviewing the case to determine wha.t the general powers of the agent were, and the case was sent back to enable defendant, if possible, to produce more satisfactory evidence in that respect. But the correctness of the judgment which has now been entered in the court below must, of course, be tested by the evidence offered upon the last trial. The trial judge held it was insufficient to establish authority in the district manager to accept the notes of the contractors in full settlement of the account, and our review of the testimony leads us to the same conclusion. The burden of proof was upon the defendant ; “ a party who avails himself of the act of an agent must, in order to charge the principal, prove the authority urn der which the agent acted. The burden of proof lies on him to establish the agency and the extent of it: ” Hays v. Lynn, 7 Watts, 524, 525 ; Moore v. Patterson, 28 Pa. 505, 512; American Underwriters’ Assn. v. George, 97 Pa. 238, 241; Relief Assn. v. Post, 122 Pa. 579, 597; Smith v. Iron & Steel Co., 208 Pa. 462, 466.

In the present case the district agent, Mr. Lowery, who was called by the defendant to establish his authority to receive the notes in payment, not only denied positively that he had taken them in payment, but denied that he had authority to so receive the notes, and denied further that he had any authority to receive payments even in cash. There was no other evidence of his authority, and it appeared from the evidence that the contractors, Powell & Company, had notice, from the invoices of the material sent to them, that payments must be made to the treasurer of the plaintiff company at St. Louis. And in pursuance of such notice they did forward the cash payments made by them on account, directly to St. Louis, and they paid no money to Mr. Lowery. At the trial the defendant put Mr. Lowery on the stand for the purpose of proving the scope of his authority, and this opened the door to the plaintiff on cross-examination to show precisely the limits of that authority. We see no merit in the third assignment of error.

As a general principle, the taking of the notes of the contractors for the amount due to the material men would not of itself effect a relinquishment of the right to file a lien. This was decided in Kinsley v. Buchanan, 5 Watts, 118, where it was said (p. 119) : “ Additional securities are in their nature cumulative; nor where the parties have not expressly or impliedly so stipulated, is there any reason why the one should be a relinquishment of the other. Accordingly, it has been determined in one of the cases cited that acceptance of a bond is not an abandonment of a mechanic’s lien. The case is in point and rules the present.” To the same effect are Jones v. Shawhan, 4 W. & S. 257; Odd Fellows’ Hall v. Masser, 24 Pa. 507; Shaw v. Church, 39 Pa. 226 ; Noar v. Gill, 111 Pa. 488.

Nothing less than the agreement of the parties that it shall do so will have the effect of waiving the right to file a lien. “ If the note is taken as a payment of the debt, the lien is waived. It is not, however, to be presumed that a note taken by a person entitled to a lien was taken as payment, but it must be shown that such was the case: ” 27 Cyc. L. & Pr. 272. In the present case, if there had been evidence of authority on the part of Lowery to receive payment of the account in the shape of notes, then the testimony of the witness Smith would have been sufficient to take the case to the jury on the question of fact as to whether or not the notes were so accepted in payment, and with the intention of releasing the right to lien. But in the absence of any evidence of such authority on the part of Lowery, there is nothing in the record to show that the defendant company ever parted with the right to enforce its lien.

The fact that one of the points reserved was a request by the plaintiff for binding instructions, brings the case directly within the terms of the Act of April 22, 1905, P. L. 286, which applies expressly where such a point requesting binding instructions has been reserved or declined. Under all the evidence, as we have seen, a binding direction in favor of the plaintiff would have been proper at the close of the trial; The court below, therefore, very properly entered judgment non obstante veredicto for the plaintiff.

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


author: Mr. Justice Elkin, Mr. Chief Justice Mitchell,

text:
    Commonwealth v. Fisher, Appellant.

      Criminal law — Murder—Technical defenses — Evidence—Husband and wife — Letters from husband to wife.

    While courts will not be astute to sustain technical assignments of error in a homicide case, where from a consideration of the whole record it appears no substantial injustice was done defendant, and that a fair trial on the merits had been accorded him, they are not at liberty to disregard established rules of procedure, or settled rules of evidence, or the constitutional and statutory rights of parties.
    Letters dictated by a prisoner in jail charged with murder to fellow prisoners, addressed to the prisoner’s wife, duly mailed, and delivered by her to the district attorney, are not admissible against the husband at his trial. The admission of such letters is in effect permitting the wife to testify against her husband, which cannot be done under the statute.
    Mitchell, C. J., and Potter, J., dissent.
    Argued April 27, 1908.
    Appeal, No. 93, Jan. T., 1908, by defendant, from judgment of O. & T., Northumberland Co., Feb. T., 1907, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth of Pennsylvania v. Henry Fisher.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Indictment for murder. Before Savidge, P. J.
    At the trial the district attorney offered two letters dictated by the prisoner when in jail to two other prisoners, addressed to his wife, and duly mailed to her.
    Mr. J. A. Welsh : This offer is objected to, 1. For the reason that they were not written by the defendant, and that the defendant did not know what was in the letters; that they were written by a person and mailed to his wife.
    2. For the reason that the letter dated December 21, 1906, is a letter from Fisher to his wife, and that it is a confidential and privileged communication sent to Mrs. Fisher and received by her, and confidential communications between husband and wife cannot be received in evidence at this time.
    3. The letter dated January 25, 1907, is also objected to because it is a letter addressed to Mrs. Fisher, and, as we understand, was received by her, and is also a confidential and privileged communication between husband and wife.
    4. The statement made to the district attorney is also objected to because it was written by Elmer Farnsworth, a prisoner in the jail, who is convicted of felony, and has been sentenced and his term has not expired, and he is, therefore, an incompetent witness to give testimony in any case.
    The witness Wilvert has also been convicted of a felony, and is incompetent to give testimony in the case.
    ********
    Mr. Shipman: We offer the statements and the letter in evidence, first, for the purpose of showing that the defendant was upon the scene of the crime at the time it was committed as particeps criminis.

      2. For the purpose of showing the instrument with which the death was caused.
    3. For the purpose of showing the time of death.
    4. For the purpose of showing that the murder was willful, deliberate and premeditated.
    5. For thé purpose of showing a motive for the crime.
    Mr. J. A. Welsh : We renew our objections.
    ********
    The Court: 1. The Act of May 23, 1887, F. L. 158, makes competent persons under trial and conviction for offenses or crimes other than perjury or subornation of perjury. This disposes of the objections on that ground.
    2. The letters to the wife may, or may not, have been delivered to her. Assuming that they were, she is not called upon to testify against him. The contents of the letters are not the testimony of the wife, but are the statements of the defendant himself.
    The objections are overruled, evidence admitted and bill sealed for the defendant.
    F. J. [Seal.]
    The letters were as follows:
    “ Sunbury, Fa., December 21, 1906.
    “ Mrs. Ella Fisher, Shamokin, Fa.
    “ My dear wife : I just received your letter to-night. Tou don’t need say that you don’t know anything about this case for you are not as innocent, as you say you are. Tou know you tried your best to get the woman out of the way long ago for the little she had. It is your fault that I am here for putting my shirt and the carpet in the place you did. I am sorry I did not tell the truth right away when it happened, and then you would be here too. Tou are no woman or you would not have laid around with another man the way you did in Shenandoah. Tou ask me to sign off but there is no signing on my part and the signing you will get is down here in jail. If you would have been any kind of a woman you would have been down before I gave you money enough. I have been very sick and that is all I have to say.
    [Signed]
    “Henry Fisher,”

      Letter of January 25,1907, as follows:
    “ Sunbury, Pa., January 25, 1907.
    “ My Dear Wife: I now pencil this letter to let you know that I hope you will stick to me through this position that I am now held in.
    “ The shirt I had on that Sunday night I was intoxicated, I also had on to work Monday and Tuesday, but the day of the murder I did not have the shirt on for you took the shirt from my back yourself. You know I was bleeding at the nose and mouth the Sunday night I was out late under the influence of liquor. You also know it was you and I that went in the house together and found she had been murdered, so if you swear otherwise you will be convicting yourself as well as me and you know as well as I that if you send me to the death trap you would regret it as long as there is life in your body. And that knife I had, you know that Mrs. Klinger gave it to me the first Sunday we were there and also gave you a small knife.
    “ You also know that time I talked about things and turn right around and say I did not say it. You also know I have been that way for about two years and I am not accountable for many things I have said within that time. I write you these lines so as to let you know just how things stand and that I want to subpoena you as a witness on my side. You also know that someone could have went into the house and took that shirt out of the closet along with the keys the lawyers said they found there. And the blood on my trousers, that was found, I spilled on them the night I emptied the ■ water after they washed her off. So now I hope you will stick to me as a wife should through this awful charge against me.
    ' “You remember you took that shirt off the Sunday night I came home drunk for you said you would not sleep with me if I kept it on and you asked me where I was and I told you I was too drunk to find my way home, and that I fell down over the bank, in the crick, and that is the way I got the blood on the shirt, and you remember you also washed me off after I got home. And you know we also got along with the woman and never had any fights or cross words with each other. Now please come down as soon as you can, the quicker the better for both you and I. You can get in to see me at any time during the week. From your husband.
    May 25, 1908:
    [Signed] “Henry Fisher,
    “ 39 N. Second St., Sunbury, Pa.”
    Yerdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Error assigned among others was (4) admission of letters as above.

      J. A. Welsh, with him John 1. Welsh and O. K. Morganroth, for appellant.
    The letters were not admissible : Peck v. Ward, 18 Pa. 506; Robb’s Appeal, 98 Pa. 501; Cornell v. Vanartsdalen, 4 Pa. 364; Brock v. Brock, 116 Pa. 109 ; Seitz v. Seitz, 170 Pa. 71; Hayes’s Estate, 23 Pa. Superior Ct. 570 ; Johnson v. Watson, 157 Pa. 454 ; Robin v. King, 2 Leigh (Va.), 140 ; Reg. v. Pamenter, 12 Cox. C. C. 177; Mercer v. State, 40 Fla. 216 (24 So. Repr. 154).
    A letter written by a husband to his wife while he is imprisoned on a charge of murder, and voluntarily surrendered by her, is a confidential communication, and is not admissible against him on trial: Wilkerson v. State, 91 Ga. 729 (17 S. E. Repr. 990); Lanctot v. State, 98 Wis. 136 (73 N. W. Repr. 575); People v. Mullings, 83 Cal. 138 (23 Pac. Repr. 229); Duttenhofer v. State, 34 Ohio, 91.

      D. W. Shipman, with him A. K. Deibler, district attorney, and U. W. Gummings, for appellee.
   Opinion by

Mr. Justice Elkin,

It has been said in several of our cases that courts will not be astute to sustain technical assignments of error in homicide cases where from a consideration of the whole record it appears no substantial injustice was done defendant, and that a fair trial on the merits has been accorded him. This must not be understood to mean, however, that courts are at liberty to disregard established rules of procedure, or settled rules of evidence, or the constitutional and statutory rights of parties, in the trial of such cases. It may be, under existing conditions, and in view of our present state of society, there should be some relaxation of the old rigid rules of the common law, applicable to the trial of such cases, which grew out of an order of things at a time when the law-making bodies made petty offenses felonies and the common everyday practices of the people misdemeanors. Indeed, we are inclined to think there should be less insistence on technicalities and more stress put upon a course of procedure intended to develop the merits. In olden times heavy burdens were placed on the people, who required all the safeguards the courts could give in the trial of criminal cases, in order that some protection should be afforded those charged with crime. Conditions have changed, the number of felonies has been reduced to the minimum, the burden in a general sense has shifted and now rests very heavily on the commonwealth, which is still practically bound by old rules intended for other purposes and growing out of different conditions. Our criminal classes at the present time are very leniently and humanely dealt with, and the wisdom of safe-guarding their trials with all the refinements and technicalities of the common-law procedure may well be questioned. It is well to remember that he who takes the life of another with intent to do so, has offended against the laws of God and man, and a proper regard for the rights of society requires that conviction and punishment should surely follow. It is not the purpose of the law to make it easy for a person guilty of a brutal ■ murder to escape the penalty of his crime, but, on the other hand, a person so charged must be convicted, if at all, according to the law of the land.

1908.] Opinion of the Court.

The fourth assignment complains that the learned trial judge erred in overruling the objection and admitting in evidence two letters written by fellow prisoners at the dictation and by the request of defendant to his wife. The admission of the letters was objected to on the ground of being confidential and privileged communications between husband and wife. It is argued that this in effect was the giving of testimony by the wife against the husband, which in our state is forbidden by statute. We have concluded that this assignment must be sustained. The letters were produced at the trial by the district attorney, representing the commonwealth, and were inclosed in envelopes postmarked at Sunbury, where mailed, and at Shamokin, the place of delivery. These facts clearly show that the letters were placed in due course of transmission in the mails, and the presumption arises under the rule of our own cases that letters so mailed were delivered to the party addressed. It is true the evidence does not show how the district attorney got possession of the letters, but the wife having received them, the reasonable presumption is that she gave them to the prosecuting officer, which, in point of fact she did, as is shown by facts subsequently developed. For the purposes of the present case it is not necessary to consider or determine whether the letters were such confidential and privileged communications as not to be admissible in evidence at all under any circumstances, but we do hold that they could not be produced by the wife and offered in evidence as coming from her because this in effect was permitting the wife to testify against her husband as to confidential communications made by one to the other, which cannot be done under our statute. We see no reason why the declarations contained in the letters, if they were made to other parties, competent to testify, should not be proven by them. Because these letters were improperly admitted in evidence, a statutory right vouchsafed to defendant was disregarded, and the fourth assignment of error must be sustained.

Judgment reversed and a venire facias de novo awarded.

Mr. Chief Justice Mitchell,

dissenting :

This judgment is being reversed upon two presumptions, one piled on top of the other without any evidence to support either. What the statute prohibits is that “ neither husband nor wife shall be competent or permitted to testify against each other .... nor shall either husband or wife be competent or permitted to testify to confidential communications made by one to another.” There is not a scintilla of evidence that either branch of the statute was violated in this case. The wife did not testify at all. Certain letters written by other persons in the name of the husband and addressed to the wife were offered and admitted in evidence. Whether letters dictated by a husband and written by other persons can be called confidential communications to his wife is at least an open and doubtful question. But waiving that there is no evidence that the letters ever reached the wife. It was not shown at the trial that they did reach her or even that they were mailed to her. It is true that subsequent to the trial the envelopes in which the letters were alleged to have been inclosed, were produced and appeared to have been regularly stamped and mailed. If this fact had appeared at the trial, which it did not, there would under the cases have been a presumption that they reached the wife. But the presumption would have stopped there. When the letters appeared at the trial in the hands of the commonwealth there was no explanation asked of the district attorney nor volunteered by him as to how he got them. The conclusion is jumped at by the further presumption that the wife gave them to the commonwealth, and that.in so doing she was testifying to confidential communications. There is no evidence nor any presumption, either of fact or of law, to support such a conclusion. She might just as probably have lost them by carelessness, or by the treachery of the fellow prisoners whom the defendant trusted with them in the first place, as they testified on the stand. It is very old and very sound law that a presumption founded on a presumption is not valid. I see no good reason for making a different rule in favor of a convicted murderer. I would affirm the judgment.

Mr. Justice Potter joins in this dissent.


author: Mr. Justice Mestrezat,

text:
    Hickey v. Caldwell, Appellant.

      Negligence — Master and servant — Fellow servant — Vice principal— Foundry.

    Where two owners of a foundry have no practical knowledge of the business, and delegate to a workman the absolute control and management of the foundry and of the employees engaged in constructing molds and making castings, with power to employ and discharge the men, such employee becomes a vice principal, and if he is negligent in permitting a mold to be used in casting before it is sufficiently dry, and when it is in an unfit and dangerous condition, and a workman is in consequence injured, the owners of the foundry are liable to the workmen for the injuries sustained.

      Argued May 5, 1908.
    May 25, 1908:
    Appeal, No. 71, Jan. T., 1908, by defendant, from judgment of C. P. McKean Oo., June T., 1906, No. 89, on verdict for plaintiff in case of Martin Hickey v. E. R. Caldwell and R. R. Caldwell.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bouton, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Error assigned was in not giving binding instructions for defendant.

      John G. Johnson, and W. E. Burdioh with them, M. L. Willis, for appellant.
    Knapp was not a vice principal: Ross v. Walker, 139 Pa. 42; Ricks v. Flynn, 196 Pa. 263; Casey v. Asphalt Paving Co., 198 Pa. 348; Buck v. Zinc Co., 204 Pa. 132; Duffy v. Platt, 205 Pa. 296.

      J. P. Mullin, of Mullin & Mullin, for appellee.
    Knapp was a vice principal: Lininger v. Air Brake Co., 210 Pa. 62; Lewis v. Seifert, 116 Pa. 628; Dyer v. Bridge Co., 198 Pa. 182; Reese v. Clark, 198 Pa. 312; Newton v. Vulcan Iron Works, 199 Pa. 646; Butterman v. Construction Co., 206 Pa. 82.
   Opinion by

Mr. Justice Mestrezat,

The defendant partnership is engaged in the foundry and machine business in Bradford City, this state. The plaintiff was employed as a laborer in the foundry. A mold had been made for a casting, weighing about ten tons, and while the plaintiff was assisting in pouring the molten metal into the mold an explosion occurred which threw some of the metal on the plaintiff, resulting in serious injury to him. The molds are‘made of damp sand, and must be dried and baked before they can be used with safety. On the occasion of the accident to the plaintiff, the explosion occurred by reason of the molten metal having been poured into the mold before it was properly dried.

It appeared from the evidence that neither of the partners is a practical molder or ever had any practical experience in the molding business. The firm employed one Anthony Knapp, a molder, who'had supervision of the foundry, subject to the directions of E. E. Caldwell who had general charge of the defendant’s business. E. E. Caldwell had delegated to Knapp his authority within certain limits. Knapp employed and discharged men, he directed the molds to be made and it was his duty to look after them and see that they were correctly made and in safe condition before they were used. In other words, he had general supervision over the construction and use of the molds. Some of the witnesses testified that Knapp apparently had full control of the foundry. The Caldwells, having no practical knowledge of the business, necessarily left the- management of the foundry business to Knapp.

The mold which exploded and caused the plaintiff’s injuries was constructed by Nicholas Zims and another molder-with the assistance of two helpers. They began the work on Monday or Tuesday and finished it on the following Friday, when they put a gas fire in it to dry it. It seems from the ■ testimony that it requires at least two days to dry the mold before it is fit or safe for use. On Saturday morning, the day after the completion of the mold, Zims examined it, and informed Knapp that it is mud, not fit to cast.” Zims told Knapp that the mold was not fit to put water in, let alone iron. He also called a helper and by the use of a rod they showed Knapp that the mold was wet and was not in a suitable condition to receive molten metal. Knapp, however, insisted upon making the casting; he said they must' cast as they needed the space, and directed Zims to proceed with the work. Zims replied, “ If we must, we will; but it is a very dangerous proposition.” In attempting to make the casting, the explosion occurred by reason of the mold not having been sufficiently dried and baked.

The learned trial judge submitted the case to the jury.' He instructed them that it was the duty of the firm to furnish the employees, including the plaintiff, a suitable and properly dried and baked mold for the reception of the iron; that if the defendant firm delegated to Knapp the authority to construct the mold, to determine when it was suitable to receive the metal, and the defendant exercised personally no authority over it, then Knapp would be a vice principal; and if Knapp neglected to furnish a proper mold and his negligence in failing to do so resulted in the plaintiff’s injuries, the plaintiff was entitled to recover in the case. The learned judge left to the jury to determine whether the mold furnished on the occasion of the accident was in proper and suitable condition for use, and whether Knapp was a vice principal exercising the authority of the defendant in the construction of the mold. By the verdict, the jury has found that the mold was not suitable and that its construction was under the supervision of Knapp who was at the time the vice principal of the defendant.

The assignments of error raise but a single question, and . that is, whether under all the evidence in the case the plaintiff was entitled to recover. The case was clearly for the jury and was properly submitted by the learned judge. It was unquestionably the duty of the defendant to furnish reasonably safe instrumentalities or appliances for their employees to perform the service for which they were employed. In malting the casting, the mold was an instrumentality or appliance with which the work was to be done by the plaintiff and the other employees. The duty to furnish this appliance rested upon the defendant; it was a personal obligation and required the defendant to provide a suitable and reasonably safe mold. The plaintiff did not assist in making the mold, nor was it his duty to see that the mold was safe or in a fit condition for use. When he was directed by his employer to assist in making the casting, he had a right to assume that the mold was in a safe condition. He had no knowledge to the contrary ; .he did not know and had no reason to believe that it was wet and unfit for use. It was delivered to the plaintiff and the other employees and they were to use it in making the casting, and they could rely on it being baked and in a suitable condition.

Under the evidence in the case, the jury were fully justified in finding that Knapp was a vice principal. He had entire charge of this part of the work of the defendant firm. This was necessarily so, because the partners themselves were not practical molders nor had they any experience in the business. While one of the partners had general supervision over the entire work, yet Knapp had the authority to make the molds, to supervise the making of the castings, and to direct the employees ábout the work; in a word, he had the absolute control and management of the foundry and of the employees engaged in . constructing the molds and in making the castings. As testified by E. K. Caldwell, one of the partners, he had general supervision over the defendant’s foundry and machine business, and he delegated to Knapp his authority within certain limits;'and those limits included the management and control of the foundry department of the defendant’s business.

That Knapp was negligent in the performance of his duties, and that such negligence resulted in the plaintiff’s injuries, there can be no doubt. This clearly appears from the plaintiff’s evidence, and the defendant introduced no testimony to contradict it. On Saturday morning, the day of the accident, the mold was wet and wholly unfit for use. Knapp was advised of this fact, and he did not then nor did he on the trial of the cause deny that the mold was in an unfit and dangerous condition when he ordered the casting to be made. Knapp insisted on making the casting and assigned as a reason that it must be made because they needed the room. As testified by Zims, “ it was just a case of too much hurry up; if we had fired it another day' and night, and waited to cast it Sunday, there would have been no trial to-day.” With a knowledge of the unsafe and dangerous condition of the mold, it was negligence on the part of the defendant, by its vice principal, to direct the casting to be made; and thé responsibility for the negligence of the vice principal must rest upon the defendant.

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


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    Potter, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—Fright of horse — Evidence—Nonsuit.
    No error in a close calculation of a chance can reheve from the charge of contributory negligence.
    Where a man, in a country district, in broad daylight, drives his horse very close to a track of a railroad before stopping, looking and listening, and as a train approaches the horse becomes so frightened as to become uncontrollable, and plunges across the track in front of a train, and the driver is killed, the latter is guilty of contributory negligence, and no damages can be recovered from the railroad company for his death.
    Argued May 11, 1908.
    May 25, 1908 :
    Appeal, No. 314, Jan. T., 1906, by plaintiff, from order of C. P. Union Co., Sept. T., 1905, No. 28, refusing to take off nonsuit in case of Sophia E. Potter v. The Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Tresspass to recover damages for death of plaintiff’s husband. Before McClure, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      Geo. B. B>eimensnyder with him Phillip B. linn, for appellant.
    The case was for the jury: McGovern v. Traction Co., 192 Pa. 344; Kuntz v. R. R. Co., 206 Pa. 162; Coolbroth v. R. R. Co., 209 Pa. 433; Toban v. Lehigh, etc., Coal Co., 24 Pa. Superior Ct. 475; Haughey v. Rys. Co., 210 Pa. 363; Patterson v. Dushane, 115 Pa. 334.

      Andrew A. Leiser for appellee.
    The traveler must stop at a convenient distance from the track and wait for the train to pass: Myers v. R. R. Co., 150 Pa. 386; Munckinhaupt v. R. R Co., 196 Pa. 213 ; Corcoran v. R. R. Co., 203 Pa. 380.
    The deceased took his chances: Brown v. Traction Co., 14 Pa. Superior Ct. 594; Aiken v. Penna. R. R. Co., 130 Pa. 380.
   Opinion by

Mr. Justice Potter,

The reason given by the iearned judge of the court below, in entering judgment of conpulsory nonsuit in this case fully justified him in refusing to take it off. The accident occurred at a grade crossing over a single track railroad, in a country district, in broad daylight. The deceased was a mail carrier, upon a rural route, and whatever may have been the precise circumstances at the time of the accident, it is clear that he drove his horse very close to the line of the railroad, before stopping to look and listen, if he did make any stop. Whether the horse came to a full stop or not seems doubtful; at any rate it was uneasy and was prancing, and as the train approached became so frightened as to be uncontrollable, and wheeling somewhat to the left, plunged across the track, in front of the train which struck the wagon and killed the occupant. The only inference which can fairly be drawn from the action of the mail carrier in placing his horse so near the track before stopping, is that he was positively negligent. He was perfectly familiar with the crossing, as he passed over it daily in the line of his duty. The road was level and he was free to avoid all danger by stopping at a safe distance from the track. It appears from the testimony that another team was just ahead, and the driver of that wagon whipped up and succeeded in getting safely over the track in advance of the train; but the mail carrier evidently concluded at the last moment that he could not do so, and therefore attempted to stop his horse when very close to the track, intending to wait for the passage of the train. Had his horse remained quiet he would probably have been safe, but as to this he took his own risk. He voluntarily placed himself in a position of danger. “ No error in a close calculation of a chance can relieve from the charge of contributory negligence: ” Brown v. Traction Co., 14 Pa. Superior Ct. 594. Counsel on both sides have analyzed the evidence in this case minutely, and have thoroughly argued the points involved. But the law governing the question is well settled, and we can see nothing in the evidence which would have justified the trial judge in submitting the question of contributory negligence to the jury, and he discharged a manifest duty in assuming the responsibility of pronouncing upon it himself.

There was no error in -refusing to take off the nonsuit, and the judgment is affirmed.


text:
    Commonwealth v. Smith, Appellant.

      Criminal law — Murder—Charge—Refusal of instructions — Trial— Practice, O. & T.

    It is reversible error for the trial judge in a murder case, after the jury has returned and requested additional instructions, to refuse to answer' the questions asked by the jury, and to give them further and specific instructions upon the law as requested.
    In such a case it is immaterial that the court has already charged the jury upon the law of the case generally, or has given instructions which would answer the requést of the jury. The very fact that the jury, after having been in consultation, have failed to comprehend the instructions given in the charge and request further instructions is of itself sufficient to show the necessity of additional instructions.
    In capital cases, it is the duty of the trial judge to instruct the jury clearly and distinctly upon the law applicable to the facts disclosed by the evidence in the case. The instructions should be full, clear and explicit, giving to the jury all the law so far as it relates to the facts proved or claimed to be proved, if such facts are sustained by any evidence. The charge should be sufficiently explicit to enable the jury to apply the law to the facts of the case. It is not enough for a trial judge to charge upon abstract questions of law either in his own language or by reading from an opinion in an adjudicated case or from a textbook. The purpose of instructions given by the court is to explain fully and clearly to the jury the law applicable to the facts of the case under consideration, and when the trial judge has not succeeded in delivering instructions on the law in such way that they will be understood by the jury, his charge is inadequate and justly open to objection by the defendant.
    Argued May 11, 1908.
    Appeal, No. 155, Jan. T., 1908, by defendant, from judgment of O. & T. Pbila. Co., Jan. T., 1901, No. 562, on verdict of guilty of murder of the first degree in case of Commonwealth v. George Smith.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Indictment for murder.
    The opinion of the Supreme Court states the case.
    Yerdict of guilty of murder of the first degree.

      Error assigned amongst others was, “ in failing and refusing to give to the jury further and specific instruction's when they asked for them after they had deliberated for hours.”
    May 25, 1908 :

      George R. White, with him G. Edwa/rd Dickerson, for appellants.

      Joseph P. Rogers, assistant district attorney, with him Samuel P. Potan, district attorney, for appellee.
   Opinion by

Mr. Justice Mestrezat,

We are of opinion that it was reversible error for the trial judge, after the jury returned and requested additional instructions, to refuse to answer the questions asked by the jury and to give them further and specific instructions upon the law as requested. For this reason the eighth assignment of error must be sustained and the judgment be reversed.

In capital cases it is the duty of the trial judge to instruct the jury clearly and distinctly upon the law applicable to the facts disclosed by the evidence in the case. The instructions should be full, clear and explicit, giving to the jury all the ■law, so far as it relates to the facts proved, or claimed to be proved, if such facts are sustained by any evidence: 12 Cyclopedia of Law and Procedure, 612. The charge should be sufficiently explicit to enable the jury to apply the law to the facts of the case. It is not enough for a trial judge to charge upon abstract questions of law, either in his own language or by reading from an opinion in an adjudicated case or from a text-book. The purpose of instructions given by the court is to explain fully and clearly to the jury the law applicable to the facts of the case under consideration, and when the trial judge has not succeeded in delivering instructions on the law in such way that they will be understood by the jury, his charge is inadequate and justly open to objection by the defendant. As the very object of the instructions is to inform ■the jury as to the law applicable to the facts of the case, the charge fails of its purpose when the' jury are ignorant of the ■law applicable to any material question in the case.

In the absence of objection by counsel or requests for further instructions by the jury, the burden is upon him who alleges it to show that the instructions were inadequate. The charge will be deemed to be sufficient if generally it presents the law applicable to the facts of the case. It will not be open to objection if some slight or immaterial matters have been omitted if, as a whole, the charge fairly presents the law of the case.

In this state, in both civil and criminal cases, if, after retiring, the jurors disagree or are confused as to the court’s instructions on the law, or if the court omit to charge on the law applicable to any part of the case, it is the uniform practice for the jury to return and ask for additional or supplemental instructions. If, after they have retired, the court discovers that its instructions are not sufficiently explicit or do not state the law applicable to some parts of the case, the trial judge may recall the jury and give them further instructions. In either case, when the jury return of their own motion or the court recalls them, it is the duty of the court to give such additional instructions on the law as the jury may request and the court may think necessary to make clear to the jury the law as to which they are in doubt. In Cox v. Highley, 100 Pa. 249, Trunkey, J., delivering the opinion, said (p. 253): “ The court was entirely right in recalling the jury to give them any instruction which, inadvertently, had been omitted.” In speaking of the propriety, as well as of the necessity, for additional instructions in certain cases, Coulter, J., delivering the opinion in Cunningham v. Patton, 6 Pa. 355, said (p. 360): “ Juries are brought together from the body of the county, and generally composed of individuals unused to each other’s mode of thinking, and unaccustomed to collating and recollecting testimony. They take no notes of the evidence, and, after listening to the arguments of counsel and charge of the court, often retire no doubt with rather confused recollections of the evidence, and it is not surprising that they should differ. We can perceive no well-founded objection, therefore, that the court should refresh their memories when they request it, or instruct them further at t'heir request, in relation to the law. There would be none certainly when the jury returned into court, nor can we perceive any where the president judge, as in this case, at the request of the jury openly and fairly read his notes of evidence, and at their request instructed further as to the law.” In fact, the practice of giving additional instructions to the jury upon their request is so well settled in this state that we know of no prior instance in which the request has been refused. So far as we are advised it is the universal practice in the state. It is immaterial that the court has already charged the jury upon the law of the case generally, or has given instructions which would answer the request of the jury. The very fact that the jury, after having been in consultation, have failed to comprehend the instructions given in the charge and request further instructions, is of itself sufficient to show the necessity of additional instructions. As we said above, if the jury do not understand the instructions, or are ignorant or uncertain as to the law applicable to any part of the case, the charge is inadequate and fails of its purpose, which is to advise the jury fully and clearly upon the law applicable to each and every part of the case.

The prisoner was indicted for murder, and he alleged that the killing was done in self-defense, and further, that if he was guilty of any crime it was of a lesser grade than murder of the first degree. The charge was exhaustive, covering more than twelve pages of the paper-book. The law of homicide was discussed at length and the distinction between the degrees of murder, between murder and manslaughter, and between voluntary and involuntary manslaughter was pointed out. The jury retired at 3:45 p. m. and discussed the case until 8 o’clock p. m., when they returned to the court room and requested additional instructions upon the question of premeditation. Four questions were asked the trial judge, three of which he declined to answer, observing that he had “already referred to that matter at great length in my charge.” The learned judge in reply to the first question told the jury that there could not be murder of the first degree without premeditation. The other inquiries requested instructions on the question of premeditation applicable to certain facts in the case. The character of the defense made the answer to those questions of vital importance to the defendant. Whether they were adequately answered in the general charge or not is of no moment in view of the fact that the jury, by request for information upon the subject, disclosed the necessity for additional instructions. Until the jury had been fully advised and understood .tbe law upon the question of premeditation as applicable to the case, the instructions were inadequate and it was the duty of the court, upon request of the jury, to give additional instructions. The jury had discussed the case for four hours and a half without arriving at a conclusion as to the guilt or innocence of the defendant. Presumably the questions on which they were at variance were those put to the court for instructions. The jury did not ask the court to determine any question of fact or to express its opinion upon the facts of the case. Its instructions were solicited on questions of law which, it is apparent, were vital in the determination of the guilt or innocence of the defendant. We are clear that the court was in error in declining to answer the questions propounded by the jury, and in referring the jury to the general charge for answers to the questions.

In view of the fact that the case is remanded for another trial, the character of the questions raised by the other assignments do not make'it necessary to consider those assignments. The eighth assignment, however, must be sustained.

The judgment is reversed with a venire de novo.