author: Me. Justice Elicin,

text:
    Wilson v. Pittsburg & Lake Erie Railroad Company, Appellant.

      Railroads — Eminent domain — Widening road — Water tanks — Act of March 17,1869, P. L. 12.
    A railroad company duly incorporated under the laws of Pennsylvania with power to condemn land for general railroad purposes is invested with the right of eminent domain to take land for the purpose of erecting and maintaining thereon tanks to supply water to its locomotives, engines and trains under the provisions of the Act of March 17, 1869, P. L. 12, giving railroad companies the right to condemn land for the purpose of straightening, widening or otherwise improving their lines.
    A resolution of the board of directors of a railroad company as to the erection and maintenance of water tanks for railroad purposes stated, at a point mentioned, and upon land designated, is final and conclusive as to the necessity for such improvement, and is within the purview of the act of 1869.
    Under such a resolution a prima facie right to condemn all of the land described is made out and this prima facie right can only be overcome by evidence which clearly establishes the fact that the railroad company, arbitrarily and without regard to its actual needs, had undertaken to appropriate more land .than its necessities require.

      Railroads — Eminent domain — Practice, C. P.

    The court of common pleas is not under any legal obligation to approve a bond tendered in railroad condemnation proceedings, where it does not affirmatively appear, either in the petition or in the notice, or in the bond itself, that the land is to be taken for any purpose for which lands may be acquired by condemnation.
    Where it appears by the- resolution of the board of directors of a railroad company invested with the power of eminent domain that in their opinion the land is necessary for a specific purpose for which the company may condemn land, and this resolution is made part of the petition for the approval of the bond and the adoption thereof is duly proved or admitted, and the bond tendered after due notice is in proper form and is adequate in amount and the sureties are sufficient, it is the duty of- the court to approve the bond and admit it to be filed for the benefit of those interested.
    Argued Oct. 13, 1908.
    Appeal, No. 126, Oct. T., 1908, by-defendant, from order of G. P. Lawrence Co., June T., 1908, No. 98, refusing to approve bond in condemnation proceedings in case of Thomas D. Wilson v. Pittsburg & Lake Erie Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Application to approve bond in condemnation proceedings.
    William E. Porter, P. J., stated the facts to be as follows:
    In order to obtain additional land “for the purpose of better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic on its lines of railroad by keeping and maintaining on said land water tanks for the purpose of supplying water to its locomotives, engines and trains,” the Pittsburg & Lake Erie R. R. Co. has begun this proceeding to condemn land of Thomas D. Wilson and has tendered him a bond in the sum of $2,500 which he has refused to accept, and we are now asked to approve said bond. Attached to the bond is a blue print which shows that the present west line of the right of way of said company is about ninety feet at the south end and about ninety-four feet at the north end of the property it is now desired to acquire from the center line of the present right of way of said company. And the land it is proposed to acquire is a small strip just west of the present right of way about 106 feet wide and 320 feet long on the east side and 254 feet along on the west side, so that if this piece were acquired by the railroad company the west line of its property would be about 200 feet from the present center line of the company’s right of way.
    The court refused to approve the bond on the ground that the company had no power to condemn land for the purpose stated.

      Error assigned was order refusing to approve the bond.

      J. Norman Martin, for appellant.
    The improvement of the line of railroad, the better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic, etc., are the matters covered by the statutes. The supply of water is necessary to the operation of a railroad and the board of directors alone shall judge where and how this water shall be supplied: Smithko v. Railway Co., 5 Pa. Dist. Rep. 543; Penna. R. R. Co. v. Miller, 112 Pa. 34; 3 Weimer’s Penna. Railroad Law, 19.
    The act of 1869 was intended in a large measure to be exercised for the public good, and it will not be presumed in the absence of clear words that the company intended to barter away that right and thus disable itself wholly or in part to perform those functions it has undertaken: Jones v. Pittsburg, McKeesport and Youghiogheny R. R. Co., 11 Pa. Superior Ct. 202; Katherine Water Co., 32 Pa. Superior Ct. 94.
    The right to build a railroad carries with it the right to build sidings and switches and side tracks and in fact to build and take land for building all things necessary to the. operation of the road: P. & C. R. R. Co. v. Speer, 56 Pa. 325; Hagner v. Railroad Co., 154 Pa. 475; Phila., Wilmington, etc., R. R. Co. v. Williams, 54 Pa. 103; Black v. Railroad Co., 58 Pa. 249.
    The act of 1869 is to be read as a supplement to all railroad charters granted by special law before the act of 1849 and as part of the charters of companies created since the act of 1869: Bigler v. Penna. Canal Co., 177 Pa. 28; Pittsburg, etc., Ry. Co. v. Peet, 152 Pa. 488; Pittsburg Junction R. R. Co.’s App., 122 Pa. 511; Jones v. Railroad Co., 11 Pa. Superior Ct. 202.

      James A. Gardner, for appellee.
    A railroad company cannot take land for every purpose which it may deem useful, necessary or convenient: Snee v. Railroad Co., 210 Pa. 480; Wilson v. Pittsburg & Lake Erie R. R. Co., 34 Pa. Superior Ct. 575; Robinson v. Railroad Co., 161 Pa. 561; Phila. & West. R. R. Co.’s Petition, 32 Pa. C. C. Rep. 337; Phillips v. Railroad Co., 78 Pa. 177.
    The power to take for widening is confined to that purpose alone, and any attempt to take for another purpose, or in excess of what is necessary for that purpose, is not within the act; and in this particular the act of 1869 is as definite as the act of 1849, which limits the width to sixty feet except in cases of cuts, etc.: Dryden v. Railway Co., 208 Pa. 316; O’Leary v. Railway Co., 210 Pa. 522.

      January 4, 1909:
   Opinion by

Me. Justice Elicin,

The question passed upon by the court below and argued here, is whether a railroad company, duly incorporated under our statutes, having the power to condemn land for general railroad purposes, is invested with the right of eminent domain to take land for the purpose of erecting and maintaining thereon tanks to supply water to its locomotives, engines and trains, under the provisions of the Act of March 17,1869, P. L. 12. This appeal, in the nature of a certiorari, is from an order of the court below refusing to approve the bond tendered on the sole ground that appellant is not authorized to condemn the land in question for the purpose stated. It is provided in the first section of said act that railroad companies may straighten, widen and otherwise improve the whole or portions of their lines, bridges, crossings, sidings, piers and structures thereof,"whenever in the opinion of the board of directors of any such company the same may be necessary for better securing the safety of persons or property and increasing the facilities and capacity for the transportation of traffic thereon, and for such purposes, to purchase, hold and use, or enter upon, take and appropriate lands and materials.” Here, then, in express terms the legislature authorized railroad companies, in addition to the.land taken originally for right of way purposes, to condemn other lands for the purpose of straightening, widening or otherwise improving their lines, whenever in the opinion of the board of directors it may be deemed necessary to do these things in order to better secure the safety of persons and property, or increase the facilities and capacity for transportation and traffic. Very ample power is given for the purposes stated. In the present case, the effort of the railroad company is to widen or otherwise improve its lines at a particular point in order to provide for the erection and maintenance of tanks to store water for necessary railroad purposes. Does the statute cover such a case? If not, why not? Nothing is more imperatively demanded for the successful operation of a railroad than an abundant supply of water, and it must be secured at those points most accessible for the use intended. If at some point near its line of right of way, there is a supply of water, and thus is presented an opportunity to locate tanks to store water for locomotives, engines and other railroad purposes, and the necessity exists to appropriate land for these purposes, there does not seem to be any valid reason why the act of 1869 should not be held to cover such a situation. Certainly the words “and otherwise improve” its lines are sufficiently comprehensive to include such a necessary and useful purpose. What improvements are more necessary for a railroad, or what facilities for the transportation of traffic are more required than the means of furnishing a sufficient water supply, and a recognized method of storing water for this use is in tanks, and tanks must be erected on land, and land must be secured where available for this use. Again, the statute provides that the board of directors shall determine the necessity for straightening, widening and otherwise improving the lines, and when so determined, that determination is final and conclusive as to the necessity of doing those things authorized to be done by the act. It would be otherwise if the board, under the guise of this legislative authority, should attempt to condemn land for purposes not within-the purview of the act. Nor do we agree that the determination by the board of the amount of land necessary for the purpose intended is conclusive and binding on the landowner. In the present case the resolution of the board of directors is conclusive as to the necessity to keep and maintain water tanks for the purpose stated at the point designated, but it is not conclusive as to the amount of land necessary for the use intended. The act does not fix any limitation upon the amount of land that may be taken for such purposes, and the presumption is that only so much can be appropriated as may be necessary to serve the public use. In the first instance this is a question for the railroad company, and when through its board of directors it is determined by resolution that a certain amount of land is necessary for the authorized use, a prima facie right to condemn the land so designated is made out. The railroad company must of necessity be the best judge of its own needs, but on the other hand it will not do to say that by a simple resolution of its own board of directors it may arbitrarily condemn any amount of land, as, for instance, a'whole field or farm, and that the owner thereof may not inquire into the exercise of the right by a proper proceeding in court. We therefore hold that the resolution of the board of directors as to the erection and maintenance of water tanks for the railroad purposes stated, at the point mentioned, and upon the land designated, is final and conclusive as to the necessity for such improvements and is within the purview of the act of 1869. We further hold that under said resolution a prima facie right to condemn all of the land described is made out, and that this prima facie right can only be overcome by evidence which clearly establishes the fact that the railroad company, arbitrarily and without regard to its actual needs, has undertaken to -appropriate more land than its necessities require.

The contention that the question raised on this appeal is res adjudicata cannot be sustained. The case of Wilson v. Pittsburg & Lake Erie R. R. Co., 34 Pa. Superior Ct. 575, was decided upon the facts presented in that record, and it was clearly pointed out in the opinion of the Superior Court that the court below was not under any legal obligation to approve the bond tendered where it did not affirmatively appear, either in the petition, or in the notice, or in the bond itself, that the land was to be taken for any purpose for which lands may be acquired by condemnation. It was also suggested in that case that the sufficiency of the bond may have been questioned by the court below. The record in the present case eliminates all these questions by stating the purpose for which the lands are to be taken, by including the resolution of the board of directors, and by presenting a bond deemed to be sufficient. Indeed, the proper practice in such proceedings was clearly and concisely pointed out by the learned president judge of the Superior Court in that case in the following language which we quote with approval: “Where it appears by the resolution of the board of directors of a railroad company invested with the power of eminent domain that in their opinion the land is necessary for a specific purpose for which the company may condemn land, and this resolution is made part of the petition for the approval of the bond, and the adoption thereof is duly proved or admitted, and the bond tendered after due notice is in proper form and is adequate in amount and the sureties are sufficient, it is the duty of the court to approve the bond and admit it to be filed for the benefit of those interested.” All of which applies to the case at bar on the record now presented.

The order of the court below refusing to approve the bond is reversed and set aside, the bond is directed to be approved and filed and the record is remitted with a procedendo.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Byers v. Baltimore & Ohio Railroad Company, Appellant.

      Railroads — Sparks—Evidence—Burden of proof.

    In an action against a railroad company to recover for the destruction of property by fire from sparks, it devolves upon the plaintiff to prove by a preponderance of evidence that the fire was communicated by sparks or cinders from the railway engine. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set by any engine passing over defendant’s railway, and the evidence may be wholly circumstantial; as, first, that it was possible for fire to reach the plaintiff’s property from the defendant’s engines, and, second, facts tending to show that it probably originated from that cause, and from no other.
    In such a case where the plaintiff is suing for the destruction of a barn, the question of the defendant’s liability is for the jury, if there is evidence tending .to prove that it was possible for fire to reach the barn from defendant’s engine; that sparks as large as hickory nuts were seen escaping from a locomotive which passed just before the fire; that the wind blew towards the building; that a few moments before the fire the sound of something falling upon the porch of the house or porch roof was heard, and at least one cinder, hot and- smoking, was seen on the porch of the house, about as far from the track as the bam; that the fire was discovered on the shingle roof of the barn on the side next to the railroad, a few moments after the train had passed; and that the spark arrester on the engine in question, when examined two or three days afterwards, showed signs of fresh repair.
    In an action against a railroad company to recover for the destruction of property from the escape of sparks, the plaintiff may testify that he examined the engine which was alleged to have caused the fire, two or three days afterwards, and found that the spark arrester showed signs of fresh repair.

      In such a case where the plaintiff testifies that he had seen a hot cinder fall on his porch, and testifies that it was one of three cinders shown, and a witness for defendant testifies that large sparks or cinders would not escape through a spark arrester in good condition, such witness may be shown on cross-examination the smallest of the three cinders for the purpose of establishing or fixing by comparison the size of cinders that could pass through the meshes of a properly equipped spark arrester.
    Any article made important by evidence, or by the nature of the investigation may be produced or inspected.
    Argued Oct. 13, 1908.
    Appeal, No. 128, Oct. T., 1908, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1905, No. 95, on verdict for plaintiff in case of Horace D. Byers v. Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for destruction of plaintiff’s barn by fire alleged to have been caused by sparks escaping from a locomotive. Before William E. Porter, P. J.
    At the trial plaintiff was asked this question:
    “Q. State whether or not you observed the netting called the spark arrester? A. I did. Q. What condition was it in?”
    Objected to by defendant’s counsel because this alleged examination occurred two or three days after the alleged damages occurred and it is incompetent to show its condition on the day of the alleged injury.
    Plaintiff’s counsel proposed to show by this witness that he watched for this engine until it returned to the terminal at New Castle Junction and before it made another trip he examined it, and that the spark arrester had been patched and repaired and the patch was new, and that the engine had not been used from the time it was patched until witness saw it. This for the purpose of showing that the spark arrester was in bad condition at the time of the fire at the plaintiff’s buildings.
    Defendant’s counsel object as incompetent and for the reason that the witness has not yet testified that the engine had not made another run before this alleged examination was made.
    The Court: It might not be positive evidence, but it would be some evidence as to the condition the engine was in.

      Mr. McCaslin: If the witness knows that the engine was not out after the run of January 17.
    Mr. Aiken: We propose to show that by the condition the patch was in.
    The Court: We will allow the witness to answer and seal an exception for the defendant. [I]
    “A. I went down on that morning, had the front opened and noticed that the bolts and the box of this front end had been open, because the threads were bright and we got the door opened and seen the front end and it was in good condition when I looked at it.”
    J. B. Daugherty, a witness for defendant, was asked on cross-examination this question:
    “Q. I show you now three cinders, being exhibit 'A/ among which is one testified to by the plaintiff that as the engine passed his premises it struck the porch and was hot and that he after-wards picked it up and it is included among the three. I therefore ask you whether the smallest of those three cinders could pass through the netting of a Mulfeld spark arrester that was in good condition on January 17, 1905.”
    Objected to by defendant’s counsel for the reason that the plaintiff did not testify that the spark was hot, and for the further reason that the cinders in question have been excluded from the evidence by the court. Further, that the plaintiff has not identified any one of those cinders as the one which he claims dropped on his property at the time when the train passed.
    The Court: The witness may answer the question and an exception is sealed for the defendant. [2]
    “A. No, sir, it couldn’t.”
    M. S. Parker was asked this question on cross-examination:
    “Q. I now show you three cinders or coals marked exhibit ‘A,’ one of the cinders being the one that the plaintiff noticed rolling on his porch as the train passed by his premises, and I ask you whether the smallest of those coal cinders could pass through the netting of that spark arrester on engine 1367, if the spark arrester was in good condition?”
    Objected to as improper cross-examination on the evidence in this case.

      The Court: The witness may answer and an exception sealed for the defendant. [3]
    “A. No, sir.”
    Defendant presented this point:
    9. Under all the evidence in this case the verdict of the jury, should be for the defendant. Answer: The ninth point is refused, so we will not read it to the jury. [4]
    Plaintiff presented these points:
    3. If the jury find from the evidence in this case that the defendant’s locomotive No. 1367 passed along the plaintiff’s premises a few minutes before the discovery of the fire and that said locomotive was emitting sparks as large as a hulled hickory nut, which were seen in the air and smoke at a height of from fifty to sixty feét, and if they also find that there were cinders from said locomotive that were larger than would pass through a spark arrester in good condition that was carried as far distant as the house which was as far distant as the barn from the railroad, and if the jury so find they would also be warranted in finding that the spark arrester in locomotive No. 1367 of the defendant company was deficient and not in good repair and that the defendant company was thereby negligent and that the barn of the plaintiff was set on fire by the sparks emitted from said locomotive. Answer: We cannot ap-. prove or affirm this point as stated, but with a very slight change we can affirm it and we will read the point and affirm it as we believe the law to be:
    If the jury find from the evidence in this case that the defendant’s locomotive No. 1367 passed along the plaintiff’s premises a few minutes before the discovery of the fire, and that said locomotive was emitting sparks as large as a hulled hickory nut which were seen in the air and smoke at a height of from fifty to sixty feet, and if they also find that there were cinders from said locomotive that were larger than would pass through a spark arrester in good condition that were carried as far distant as the barn from the railroad, the jury would also be warranted in finding that the spark arrester in locomotive No. 1367 of the defendant company was deficient and not in good repair and that the defendant company was thereby negligent and that the bam of the plaintiff was set on fire by the sparks emitted from said locomotive. As thus stated we affirm the point. [5]
    4. The evidence in this case is that the barn and the house were on the same side of the railroad, each equally distant not to exceed 237 feet from the railroad track of the defendant company, and the house being about 100 feet from the barn, and if the jury find that locomotive No. 1367 of the defendant company as it passed along the plaintiff’s premises a few minutes before the fire was discovered, emitted sparks and cinders of a larger size than would pass through a spark arrester in good condition, from the smokestack of the locomotive, and some of them were carried as far distant as the house, the jury would be warranted in finding that the spark arrester of the defendant’s locomotive No. 1367, was not in good condition and that the defendant company was guilty of negligence and under all the evidence the jury may find that the plaintiff’s barn was burned by the sparks emitted from the defendant’s said locomotive. Answer: Affirmed. [6]
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Errors ■assigned were (1-3) rulings on evidence, quoting the • bill of exceptions; (4-6) above instructions, quoting them.

      Wylie McCaslin, with him U. G. DeFord, for appellant.
    It cannot be held that the fact that a fire took place in the immediate vicinity of the railroad shortly after the passing of an engine is prima facie evidence of negligence and therefore the case should be submitted to the jury: Jennings v. Penna. R. R. Co., 93 Pa. 337; Reading, etc., R. R. Co. v. Latshaw, 93 Pa. 449; Taylor v. Pa. Schuylkill Valley R. R. Co., 174 Pa. 171.
    It devolves upon the plaintiff to prove by the preponderance of the evidence that the fire was communicated by sparks or cinders from the railway engines: Henderson v. Railroad Co., 144 Pa. 461.
    In the case of mere negligence with no malice, to ascertain whether the negligence be the proximate cause of the injury, it must appear "that the injury was the natural and probable consequence of the negligence: Yoders v. Amwell Twp., 172 Pa. 447; Scott v. Allegheny Valley R. R. Co., 172 Pa. 646.

      Robert K. Aiken, with him J. Clyde Gilfillian, for appellee.—
    Under all the evidence in this case it was clearly one for the jury: Henderson v. Railroad Co., 144 Pa. 461; Huyett v. Railroad Co., 23 Pa. 373; Penna. Co. v. Watson, 81* Pa. 293; Van Steuben v. Cent. R. R. Co., 178 Pa. 367; Matthews v. Railroad Co., 18 Pa. Superior Ct. 10; Thomas v. Railroad Co., 182 Pa. 538; Howard Express Co. v. Wile, 64 Pa. 201; Citizens’ Pass. Ry. Co. v. Foxley, 107 Pa. 537; McCafferty v. Railroad Co., 193 Pa. 339.
    It is the duty of companies to control their engines carefully, to adopt every known safeguard and to avail themselves from time to time of every approved invention to lessen their danger: Frankford, etc., Turnpike Co. v. Phila. & Trenton R. R. Co., 54 Pa. 345; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122.
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

Plaintiff in this case is the owner of a farm adjoining the tracks of the defendant company. Upon this farm stood his barn, 229 feet north of the railroad track, and his house was located about the same distance from the railroad, and about 100 feet away from the barn. On January 17, 1905, in the forenoon, the barn and other outbuildings caught fire and were destroyed. A relief train of the defendant passed the location of the property a few moments before the fire was discovered. The plaintiff charged the defendant company with negligence, in that it had not provided the locomotive of the relief train with an efficient spark arrester, and that by reason of its neglect and oversight in this respect, sparks of unusual size escaped from the locomotive, and set fire to the buildings. He therefore brought this action to recover from the defendant company the damages sustained in the loss of the property. At the trial, plaintiff testified that he was sitting in his house just before the time of the fire, and saw the relief train pass by; and that he noticed the smoke blow from the railroad towards his buildings, and heard the sound of something dropping upon his porch. He looked out and saw a cinder, warm and smoking, roll along the porch. This cinder and two others were picked up on the porch by plaintiff after the fire, and were preserved and produced in court. A few moments after plaintiff saw the train pass and heard the sound of something dropping, the barn was seen to be on fire. One witness testified that he saw the train pass shortly before he noticed the fire on the barn roof, and that the locomotive was then throwing out sparks as large as hickory nuts. There was also testimony that a locomotive properly equipped with a spark arrester would not throw out cinders or sparks of the size described by plaintiff’s witness. Plaintiff further testified that two or three mornings after the fire, he examined the engine which had passed his place at the time of the fire, and that the wire netting comprising part of the spark arrester on the locomotive gave evidence of having been newly patched.

The trial judge refused to give binding instructions for the defendant, and submitted the question of defendant’s negligence to the jury, who found for the plaintiff. This appeal is by defendant, and the fourth, fifth and sixth assignments raise the question whether there was any evidence of negligence sufficient to be submitted to the jury. The law governing this class of cases wherein recovery is sought for a loss by fire, caused by sparks from a locomotive engine of a railroad company, has been thoroughly considered in Pennsylvania, and is well settled. A very thorough and elaborate discussion of the subject by Justice Clark is found in Henderson v. Railroad Co., 144 Pa. 461, where, upon page 479, the following statement of the rule is quoted with approval: “ It devolves upon the plaintiff to prove by a preponderance of evidence that the fire was communicated by sparks or cinders from the railway engine. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set by any engine passing over defendant’s railway, and the evidence may be wholly circumstantial; as, first, that it was possible for fire to reach the plaintiff’s property from the defendant’s engines; and, second, facts tending to show that it probably originated from that cause, and from no other.” And, as applicable to a state of facts similar to those in the case now before us,' the law was again succinctly stated in Elder Township School District v. Penna. R. R. Co., 26 Pa. Superior Ct. 112, where Henderson, J., said (p. 114): “While the burden is on the plaintiff to prove that the fire was negligently communicated by some engine of the company, the fact may be shown by circumstantial evidence. Given the passing train, the accumulated combustible material, the fire breaking out therein within a few minutes after the train had passed and communicating directly with the plaintiff’s building, there exists a state of facts from which the jury would be authorized to draw the inference of negligence on the part of the defendant.” Under these authorities and many others to the same effect, which might be cited, we have no doubt as to the sufficiency of the evidence in this case to justify its submission to the jury. There was evidence tending to prove that it was quite possible for fire to reach the plaintiff’s property from the defendant’s engine. That sparks as large as hickory nuts were seen escaping from the locomotive which passed just before the fire. That the wind blew towards the buildings. That, a few moments before the fire, the sound of something falling on the porch or porch roof was heard, and at least one cinder, hot and smoking, was seen on the porch of the house, about as far from the track as the bam. That the fire was discovered on the shingle roof of the barn on the side next to the railroad, a few moments after the train had passed. There was further testimony tending to show that the spark arrester on the engine in question when examined two or three days afterwards, showed signs of fresh repair.

If the testimony in these respects was believed by the jury, it was sufficient to justify the inference that an imperfect and inferior spark arrester was used, and that the fire resulted from this fact.

In the first assignment of error counsel for appellant questions the admissibility of plaintiff’s testimony, as to the condition of the spark arrester upon the engine, when he saw it, two or three days after the fire, and when the appearances indicated the recent repair of the netting. The evidence that the engine threw .out sparks of the size described was in itself enough to carry the case to the jury, upon the question of whether the spark arrester was in good condition: Phila. & Reading Ry. Co. v. Shultz, 93 Pa. 341; Penna. Co. v. Watson, 81* Pa. 293. And the further showing that a few days later the wire netting in the spark arrester exhibited signs of recent repair, taken in connection with the proof of large sparks thrown out upon the day of the fire, fairly warranted the inference that there had been an opening in the spark arrester, which was subsequently covered by the patch which the plaintiff said he saw. For that purpose the testimony was clearly admissible. “It has been held that on account of the general nature and circumstances of cases involving the liability of railroads for fires, a greater liberality in the admission of evidence is permitted, both as to the origin of the fire and the defendant’s negligence, than in other cases of damages for tortious injuries. There is no doubt that a plaintiff may show the defendant’s liability for damages by fire by circumstantial evidence merely. As defects in an engine and negligence in its management, it has been said, are matters peculiarly within the knowledge of the company, it is not reasonable to expect of a stranger direct evidence of the defects or negligence:” 13 Am. & Eng. Ency. of Law (2d ed.), 510, 511.

In the second and third assignments of error, complaint is made of the action of the trial judge in permitting the cross-examination of defendant’s witnesses with regard to three cinders which were shown them. They were asked if the smallest one of the three cinders could pass through the netting of the spark arrester if it was in good condition. The three cinders had not been admitted in evidence, for the reason that the plaintiff could not identify the particular one he had seen fall hot upon the porch. But he testified that it was one of the three,, and the inquiry was confined to the smallest one. So that no harm was done to defendant in this respect. The witness had testified that large sparks or cinders would not escape through a spark arrester in good condition. On cross-examination, counsel might then properly have shown him any object, whether in evidence or not, for the purpose of establishing or fixing by comparison, the size of cinders that could pass through the meshes of a properly equipped spark arrester. Any article made important by evidence or by the nature of the investigation may be produced for inspection. ... A witness may use his own body or that of another person or any article to illustrate the evidence:” 17 Cyl. L. & Pr. 292, 293.

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


author: Mr. Justice Stewart,

text:
    Wallace v. Pennsylvania Railroad Company, Appellant.

      Negligence — Damages—Future pain and suffering.

    In an action to recover damages for personal injuries the jury may and should award compensation for future pain and suffering whenever the evidence furnishes just ground for the belief that such pain and suffering will likely or probably ensue.

      Negligence — Railroads—Surgical operation — Sequence of original injury — Damages—Radiograph pictures — Evidence.
    Where a surgeon employed by a railroad company sets the broken leg of a passenger in such a way as to cause the fibula to override, resulting-in intense pain, and making necessary a second operation, if the second operation is performed in good faith, with a view to promote and insure complete recovery or mitigate the patient’s pain, either by correcting what had been done, or by supplementing it, by a surgeon in whose skill and judgment the ordinarily prudent person would have a right to rely, the consequences following the operation and resulting directly therefrom, are in a legal sense the sequence and result of the original accident; and it is immaterial that the second operation did not relieve the patient’s pain and suffering.
    In such a case the surgeon who performed the second operation is properly permitted to show that his conclusion in determining that the second operation was necessary, was based upon radiograph pictures, and that when operating he found the conditions to be just as the picture represented. Under such circumstances the objection that the pictures were not taken by a professional, amounts to nothing.
    Argued Oct. 13, 1908.
    Appeal, No. 180, Oct. T., 1908, by defendant, from judgment of C. P. Lawrence Co., March T., 1906, No. 62, on verdict for plaintiff in case of Fred F. Wallace v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    • Trespass to recover damages for personal injuries. Before William E. Porter, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial when Doctor L. W. Swope was on the stand certain radiograph pictures were shown to him, and he was asked this question:
    “ Q. I will ask you, doctor, to take exhibit ‘ B ’ to the jury. First, when this incision was made state whether or not the conditions that you found there corresponded with the radio-graph? A. It did.”
    Mr. Jackson: I ask that answer to be withdrawn until I make my objection.
    Mr. Aiken: We will consider it withdrawn.'
    Mr. Jackson: What is the question for?
    Mr. Aiken: What do you say? I am not saying. It is your duty to give the purpose of the question.
    Question read at suggestion of counsel.
    Defendant’s counsel object, as it contains two separate and distinct questions and different subject-matters.
    We object to the witness going to' the jury and showing the jury the radiograph plate, because it has not been properly identified or shown by an expert to have been made so as to make it evidence for any purpose. It is objected to for the second reason because a radiograph plate, sometimes called X-ray, of the wounded or injured parts of this man’s leg, for which suit is brought, is incompetent and irrelevant evidence and should not be received for any purpose whatever as to anything in issue in this case and we desire the court to understand we make two distinct and specific objections to the offering of these radiographs to the jury, in that it has not been shown to have been taken in such a way or by such a person of such a profession, such an expert, as would entitle it to be received as evidence. Further objected to for the reason that the radiograph and X-ray pictures of injured and deformed parts are not receivable in evidence on the trial of a case like this; that there is nothing at issue in this case except a question of damages for injuries sustained, for costs and expenses that may have been incurred, for such damages as might properly be allowed for pain and suffering and for loss of earning power since the accident up to the present and if it should be believed in the future.
    No one of these questions is relevant in the offer of the picture, X-ray or radiograph, as it is termed, nor is it competent, and that its being offered is for an improper purpose and only for the purpose of inflaming the minds of the jury improperly.
    The Court: The surgeon is called upon to go before the jury and to use the radiograph in explaining the condition of the injured leg as found by him and I believe it would be proper to allow him to do so, and we will permit the witness to do that. There is really no question before the court to rule on. You may proceed, doctor.
    Mr. Jackson: The court being of opinion that there is no question before the court to raise the question objected to, I now object to the witness showing this plate to the jury because the plate has not been sufficiently identified and has not in fact been offered in evidence, and it is therefore incompetent for the witness to use it in illustrating, as there is no proof that it even pretends to be a picture of the plaintiff’s injured limb.
    The Court: We will overrule the objection and seal an exception for the defendant. [6]
    Last question read witness.
    “A. Yes, sir, it did.”
    The court charged in part as follows:
    [In addition to compensation for expenses incurred and loss of earning power you may consider compensation for pain and suffering, and in doing so you are not confined simply to what he has endured since the accident to the present time, but what he will probably suffer in the future as a sequence of the injury.] [1]

      Plaintiff presented these points:
    7. In considering the damages you may award the plaintiff for pain and suffering you will consider the pain and suffering he has already endured bodily and mentally, and which he is likely to endure, and it is for you to determine what compensation under all the circumstances should be allowed the plaintiff, in addition to the other items of damage to which he is entitled, in consideration of the pain and suffering as a result of the accident and what amount of money is sufficient compensation for pain and suffering is to be decided by the jury. Answer: Affirmed. [2]
    4. That if the jury find that the operation of Doctor Swope caused dead bone and that this dead bone was not the sequence or result of the original injury they should not take this dead bone into account in making up their verdict. Answer: Refused.
    While it is true the plaintiff cannot recover for injuries which are not the sequence of the original injury received in the accident, yet if he exercised care, caution and good judgment in the selection of a skillful and competent surgeon he has discharged his duty in this respect and is not responsible for an error in judgment or unskillful treatment on the part of the surgeon who has been selected with care. Where a person has used reasonable care in selecting a physician or surgeon, but owing to unskillful treatment the injury has been increased, the party causing the injury will be held liable for the latter. [3]
    Defendant presented this point:
    That the defendant is not liable for damages arising from the fault, mistake or neglect of plaintiff's own surgeon, which produced injury and loss to plaintiff that could under no circumstances have resulted from the injuries plaintiff received at the collision. Answer: Affirmed.
    In affirming this point while we say the defendant is not liable for an injury caused by the fault, mistake or neglect of the surgeon which could under no circumstances have resulted from the injury caused by the accident, yet if the plaintiff used reasonable care in selecting a physician or surgeon, but owing to unskillful treatment by the surgeon thus selected the injury has been increased the defendant will be held liable for the increased injury if it is liable for the original injury. [4]
    Verdict and judgment for plaintiff for $15,250. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them; (6) ruling on evidence, quoting the bill of exceptions; and (7) that the charge was inadequate.

      Oscar L. Jackson, with him C. B. Fernald and Charles R. Davis, for appellant.
    The liability for future damages for the wrongful infliction of a personal injury is strictly limited to compensation for such pain and other evil effects as are reasonably certain to result from it. Possible even probable future effects are too remote and speculative to form the basis of legal recovery: Chicago, M. & St. P. Ry. Co. v. Lindeman, 143 Fed. Repr. 946; Chicago, M. & St. P. Ry. Co. v. Newsome, 154 Fed. Repr. 665; Curtis v. R. R. Co., 18 N. Y. 534; Smith v. Milwaukee Builders’ & Traders’ Exchange, 91 Wis. 360 (64 N. W. Repr. 1041); Stutz v. Ry. Co., 73 Wis. 147 (40 N. W. Repr. 653); Fry v. Ry. Co., 45 Iowa, 416; Aaron v. R. R. Co., 2 Daly, 127; Ross v. Kansas City, 48 Mo. App. 440; Chicago, R. I. & P. R. R. Co. v. McDowell, 92 N. W. Repr. 121; Ford v. City of Des Moines, 106 Iowa, 94 (75 N. W. Repr. 630).
    The X-ray pictures were improperly admitted in evidence.

      Robert K. Aiken, for appellee.
    The plaintiff is entitled to recover for the pain and suffering that plaintiff has endured and will endure in the future on account of his injuries: Smedley v. Ry. Co., 184 Pa. 620; Baker v. Irish, 172 Pa. 528; Penna. R. R. Co. v. Hope, 80 Pa. 373; Hoag v. R. R. Co., 85 Pa. 293; Filer v. N. Y. Cent. R. R. Co., 49 N. Y. 42.
    X-ray photographs may be shown to the jury to illustrate or make clear the testimony of experts: Hampton v. Norfolk & W. R. R. Co., 35 L. R. A. 808; Geneva v. Burnett, 58 L. R. A. 287.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

The evidence fully warrants the conclusion reached by the jury in this case that the injuries sustained by the plaintiff were severe to an unusual degree. Whether they all were legally chargeable to defendant’s negligence is a matter to be considered later on. Under the instructions of the court the jury were allowed, in determining the plaintiff’s damages, to take into consideration the pain and suffering he would probably in the future endure, as a sequence of his injuries, as well as that he had already suffered. This instruction is complained of as introducing an element of damage too remote and speculative to form a basis of legal recovery, and it is the subject of the first assignment of error. Nothing is better settled than that in cases of personal injury pain and suffering are to be reckoned as distinct elements for which compensation is to be allowed. It is equally well settled that this rule admits of compensation for future as well as past pain and suffering. With what degree of certainty must it be made to appear that the future pain and suffering will ensue before compensation for them can be allowed? That is the question raised by the assignment; and it might well call for consideration if no rule existed with respect to it, or the rule were of questionable authority. But neither is the case. In the multitude of cases of like character which have come before this court for review, one unvarying rule has been observed regarding the quantum of proof required, and it is this — the jury may and should award compensation for future pain and suffering whenever the evidence furnishes just ground for the belief that such pain and suffering will likely or probably ensue. This standard has met with the approval and sanction of this court in every case, and that without qualification. It is sufficient to refer to the cases of Schneider v. Penna. Co., 2 Cent. Repr. 74; McLaughlin v. City of Corry, 77 Pa. 109; Scott Township v. Montgomery, 95 Pa. 444; Lake Shore, etc., Railway Co. v. Frantz, 127 Pa. 297; Smedley v. Railway Co., 184 Pa. 620. Many others as distinctly recognizing and enforcing the rule could be cited were it necessary. In the case of Scott Township v. Montgomery, 95 Pa. 444, an instruction to the effect that the “jury shall allow for pain and suffering, the plaintiff had already endured, bodily and mentally, and which he is likely to experience” was assigned for error. This court held in a per curiam that the measure of damages was correctly stated. In Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297, the trial judge in his charge had allowed the jury to consider the pain and suffering “the plaintiff has. undergone and may undergo in the future.” This was specifically assigned as error. This court, while disapproving of the expression “may undergo,” affirmed the judgment on the ground that in the connection in which it was used it could not have been misleading to the jury, in view of the subsequent instruction that recovery was to be limited to “that already experienced and likely yet to be experienced.” With such explicit and repeated recognition by our own courts of a rule which admits compensation for pain and suffering likely to ensue, it comes to nothing to show that in some jurisdictions recovery for these is allowed only when it is made to appear that they are reasonably certain to result. We are not called upon to vindicate the justice or reasonableness of the rule which obtains with us; it is only necessary to assert it and express our continued adherence to it. All that is required with us is, that there be sufficient evidence from which the jury may fairly derive the conclusion that the chances that the plaintiff will endure future pain and suffering preponderate over those that he will not. Such preponderance denotes probability or likelihood, and that is sufficient.

The plaintiff, while a passenger, was injured in a collision between two of defendant’s trains, sustaining a fracture of both bones of his left limb between the knee and ankle. This occurred September 7, 1905. He was at once removed to a city hospital where he was placed in charge of a physician' and surgeon in the employ of the defendant company, who proceeded without delay to place the injured limb in alignment and apply splints. The plaintiff remained in the hospital under treatment for nearly a month when, being able to go about on crutches, he was taken to his home. About the middle of November following, the same surgeon removed the plaster cast and directed moderate use of the limb. Plaintiff testified that after the removal of the cast he suffered pain in his limb so severe that he was scarcely able to endure it. It is not alleged that this pain resulted from any undue or immoderate use of the limb. Because of its continued severity plaintiff procured radiographs to be taken of the injured part, and in view of what these were supposed to disclose, he employed Doctor Swope, a surgeon of repute residing and practicing in the city of Pittsburg. From an examination of the radio-graphs and the patient, Doctor Swope concluded that what caused the pain was an overriding of the fibula to the extent of three-fourths of an inch, and that an operation was necessary to make the small bones unite squarely, and thus relieve the pressure upon the vessels and nerves of the foot resulting from the overriding. The operation involved not only an incision, but a severance of the bones which had partially united, the removal of the oblique ends, and the bringing them into a more perfect apposition and securing them in proper place by artificial tendons. This operation was performed by Doctor Swope with the assistance of another surgeon, and in the presence of several, at the same hospital where the patient was first treated. Doctor Swope testified that he found the conditions to be just as the radiographs represented them, and in addition he found the tissues about the place of fracture devitalized, the blood supply having been interfered with by the pressure of the bone. Several months later another operation was required for the removal of a piece of dead bone which resulted from the devitalized tissues. At that time it was observed that the tissues were doing no good, not healing, not throwing off the broken-down processes. Doctor Swope gave it as his conclusion from a very recent examination of the patient, that there had been but little improvement in his condition; that necrosis was still going on, and that another operation would be required for the removal of dead bone. The effort on part of the defendant was to show that the operation performed by Doctor Swope was wholly unnecessary; that plaintiff’s limb was in good condition at the time the operation was performed, and that the healing processes were steadily going forward; that if there was any overriding of the bone it was so slight as to be of no consequence, nothing beyond what is ordinarily looked for in such cases, and the necrosis which subsequently set in, and is the admitted cause of plaintiff’s present disability and suffering, is due wholly to the operation performed by Doctor Swope. This view of the case was expressed by Doctor Wilson, the surgeon who first treated the plaintiff, and he was fully supported in it by several others called by the defendant. Into this controversy we need not enter. Every point submitted by the defendant which bore relation to it was affirmed by the court with a single exception. Defendant’s fourth point was as follows: “If the jury find that the operation of Doctor Swope caused the dead bone, and that this dead bone was not a sequence or result of the original, injury, they should not take this dead bone into account in making up their verdict.” In refusing this point the learned trial judge said: “While it is true the plaintiff cannot recover for injuries which were not the sequence of the original injury received in the accident, yet if he exercised care, caution and good judgment in the selection of a skillful and competent surgeon, he has discharged his duty in this respect, and is not responsible for an error in judgment or unskillful treatment on the part of the surgeon who has been selected with care. Where a person has used reasonable care in selecting a physician or surgeon, but owing to the unskillful treatment the injury has been increased, the party causing the injury will be held liable for the latter.” Putting it somewhat differently, the point was refused because it did not comprehend sufficient matters of fact to justify the conclusion sought to be drawn; and this was clearly right. If the operation was performed in good faith, before the recovery of the plaintiff from the original injury, with a view to promote and insure complete recovery or mitigate plaintiff’s pain, either by correcting what had been done' or by supplementing it, by the surgeon in whose skill and judgment the ordinarily prudent person would have a right to rely, the consequences following the operation and resulting directly therefrom are in a legal sense the sequence and result of the original accident. The affirmance of the point would have involved an assumption that there was no evidence from which the jury could find such conditions as those we have indicated, and which, once established, would legally refer the consequence to the accident as the proximate cause. Instead of this being the state of the evidence, there was not only-abundant testimony- in support of every contention we have above referred to, but there was no attempt whatever on the part of the defendant to controvert it. This testimony, if accredited, established not only a connection between the pain and suffering caused by the presence of the dead bone and the original accident, sufficient in law to make the accident the proximate cause, but it linked the two together in' such a way as to make a natural whole. Any consideration of this matter must start with the fact that before the fractured parts had healed, while the process was going on, and after plaintiff had been virtually released from the surgeon’s care and supervision, he was subjected to intense pain and suffering in the region of the fracture. If such were not the fact, or if it resulted from something else than the original injury, defendant should have made some effort to controvert the testimony with respect to it. It is enough in this connection to know that the testimony was undisputed. The natural connection between the pain, if it existed, and the original accident, is too obvious to call for remark. It was just as natural that the plaintiff, in his desire to be released from the pain to which he was subjected, should have recourse to surgical skill and submit to whatever treatment such skill should determine upon. The suffering which followed the treatment, whether that treatment was wise or unwise, is as directly and naturally traceable to the original accident as that which attended the setting of the fractured limb in the first place; both were parts of the connected whole, and of course it is of no consequence that one is further from the beginning of the chain of events than the other. What we have here said applies as well to the fourth assignment, which is the answer of the court to the defendant’s fifth point, which asked the court to say, “that defendant is not liable for damages arising from the fault, mistake or negligence of plaintiff’s surgeon which produced injury and loss to plaintiff that could under no circumstances have resulted from the injury plaintiff received in the collision.” The court affirmed the point, and followed the affirmance with a qualification or explanation which set out the same considerations which led to a refusal of the fourth point. It is the qualification that is assigned for error. Like the point itself 'it assumes a case where the injury under no circumstances could have resulted from the original accident, and acquits from liability the party causing the accident. It goes on to say, however, that though injury was caused by unskillful treatment, yet, if the plaintiff exercised ordinary care in the selection of the surgeon, the defendant, if liable legally for the original injury, would be liable for the increased injury as well. The point submitted should have been refused for reasons which we have stated in considering the former point; the explanation left the affirmance without advantage to the defendant, but so far as it went it was a correct statement of the law under the facts of the case.

It was entirely proper to allow the witness, Doctor Swope, to state the grounds on which he based his conclusion as to what caused the pain from which the plaintiff suffered, and prevailed with him in determining that an operation was necessary. His conclusions were based largely upon what the radiographs revealed. This circumstance made the radiographs admissible. While, as we have stated, it was not a material inquiry in the case whether the operation was a prejudicial one or not, if made in good faith by one on whose skill the plaintiff had a right to rely, yet it was around this question that the controversy was waged, the defendant insisting that no excuse whatever existed for the operation. Under such circumstances it would have been most unjust to the witness to refuse him permission to show by the radiograph what directed his judgment. He testified that when operating he found the conditions to be just as the pictures represented. In view of this testimony the objection that they were not taken by a professional comes to nothing. The sixth assignment of error for the reasons given cannot be sustained. The remaining assignment complains of the inadequacy of the charge in that it does not sufficiently call the attention of the jury to the evidence on the part of the defendant as to plaintiff’s ability to make use of the injured limb, — this in connection with the question of compensation. This assignment is without merit. The charge is not only a full and adequate presentation of the evidence, but strictly impartial.

The judgment is affirmed.


author: Me. Justice Elkin,

text:
    Commercial National Bank, Appellant, v. Kirk.

      Conflict of laws — Penal laws — Jurisdiction—Inability of directors— Failure to make return — Construction by court of last resort — Corporations.
    The courts of Pennsylvania will not enforce the penal laws of another state in all actions brought here when the courts of that state have declared the statute in question to be penal.
    Where the highest court of appeal of another state has decided that the liability imposed upon the directors of a corporation of such state for failure to make a statutory return is a penal liability, the courts of Pennsylvania will not enforce such liability against the directors in an action brought to enforce the penalty here.

      Affidavit of defense — Practice, C. P. — Penal action.

    No affidavit of defense is required in a penal action.
    Argued Oct. 13, 1908.
    Appeal, No. 220, Oct. T., 1908, by plaintiff, from judgment of C. P. Lawrence Co., June T., 1906, No. 99, on verdict for defendants in case of Commercial National Bank of Bozeman, Montana, v. C. J. Kirk et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit against directors of a Montana corporation. Before William E. Porter, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Oscar L. Jackson, with him Hartman & Hartman and Chas. R. Davis, for appellant.
    Whilst the court below seemed to base its decision largely if not entirely on Montana decisions it is worthy of note that there is very high authority for the claim that in a contest of this kind it is Pennsylvania courts that should decide whether that statute is so far penal that they will not enforce it: Githers v. Clarke, 158 Pa. 616; Ball v. Anderson, 196 Pa. 86; First Nat. Bank of Pittsburg v. Darlington, 30 Pa. Superior Ct. 302; Vanhorn v. Corcoran, 127 Pa. 255; Sheble v. Strong, 128 Pa. 315.
    The liability sought to be enforced is contractual in its nature and the statute remedial: Huntington v. Attrill, 146 U. S. 657 (13 Sup. Ct. Repr. 224); Nebraska Nat. Bank v. Walsh, 68 Ark. 433 (59 S. W. Repr. 952); Farr v. Briggs, 72 Vt. 225 (47 Atl. Repr. 793); Ferguson v. Sherman, 116 Cal. 169 (47 Pac. Repr. 1023); Russell v. Ry. Co., 113 Cal. 258 (45 Pac. Repr. 323); Marshall v. Sherman, 148 N. Y. 9 (42 N. E. Repr. 419); Dexter v. Edmands, 89 Fed. Repr. 467; Bank v. Ellis, 42 L. R. A. 396; Swanscoat v. Remsen, 78 Fed. Repr. 592; Northern Pac. R. R. Co. v. Mase, 63 Fed. Repr. 114; Hobbs v. Nat. Bank of Commerce, 96 Fed. Repr. 396; Ramsden v. Knowles, 151 Fed. Repr. 721; Anglo-American Land, etc., Co. v. Lombard, 132 Fed. Repr. 721; Whitman v. Citizens’ Nat. Bank, 110 Fed. Repr. 503; Whitman v. Nat. Bank of Oxford, 83 Fed. Repr. 288; Child v. Iron Works, 137 Mass. 516; Patterson v. Stewart, 41 Minn. 84 (42 N. W. Repr. 926); Jenet v. Nims, 43 Pac. Repr. 147; First Nat. Bank of Butte v. Weidenbeck, 87 Fed. Repr. 271; Davis v. Mills, 99 Fed. Repr. 39.

      J. Norman Martin, for appellees.
    The penal laws of one state can have no operation in another: Plymouth First Nat. Bank v. Price, 33 Md. 487; Price v. Wilson, 67 Barb. (N. Y.) 9; Spellier Electric Time Co. v. Geiger, 147 Pa. 399; Bennett v. Cadwell, 70 Pa. 253; Van Auken v. Dunning, 81 Pa. 464; Brown v. R. R. Co., 83 Pa. 316.
    The statute of Montana under which the suit is brought is declared to be penal by the Supreme Court of Montana: Gans v. Switzer, 9 Montana, 408 (24 Pac. Repr. 18); Elkhorn Trading Co. v. Tacoma Min. Co., 16 Montana, 322 (40 Pac. Repr. 606); Wethey v. Kemper, 17 Montana, 491 (43 Pac. Repr. 716).

      The courts of Pennsylvania are bound by the construction put on the act by the supreme court of Montana: Schmaltz v. York Mfg. Co., 204 Pa. 1; Ball v. Anderson, 196 Pa. 86; Cushing v. Perot, 175 Pa. 66; Lebanon Nat. Bank v. Karmany, 98 Pa. 65.
    The action being penal, an affidavit of defense was not required: Boyd v. Turner, 1 Browne, 133; Read v. Bush, 5 Binney, 455; Borlin v. Com., 99 Pa. 42; Boas v. Nagle, 3 S. & R. 250; Barr v. Duncan, 76 Pa. 395; Tiffany v. Nat. Bank, 85 U. S. 409; Barnet v. Nat. Bank, 98 U. S. 555; Lebanon Nat. Bank v. Karmany, 98 Pa. 65; United States v. Bank, 26 U. S. 100; Weidimor v. Drissel, 1 Yeates, 77; Finney v. McMahon, 1 Yeates, 248.
    January 4, 1909:
   Opinion by

Me. Justice Elkin,

The appellees were stockholders in and directors of a mining corporation of Montana. Under a statute of that state, it is made the duty of. the corporation to make an annual report showing the amount of capital stock authorized, the proportion of the capitalization paid in, and the existing indebtedness, which report is required to be filed in the office of the clerk of the county where the principal place of business is located. In the present case the annual report was not made nor filed as required by the statute. Failure to make and file the report imposes upon the directors a statutory liability to jointly or severally pay the indebtedness of the corporation then existing or any that shall thereafter be contracted until such report shall be made and filed. This suit was instituted in Pennsylvania to enforce against certain of the directors here the collection of an indebtedness of the corporation due the appellant bank in Montana. The right to recover as a personal obligation against directors in this state depends upon the nature of the liability under the Montana statute, which if penal, must be enforced in that jurisdiction. The earlier cases in most jurisdictions regarded such statutes as penal, and suits upon them as actions for jienalties, but the later cases, especially those of the federal courts, which perhaps declare the sounder view of the law, hold that the liability in such cases is contractual in its nature, and such statutes remedial. The leading case declaratory of this doctrine is Huntington v. Attrill, 146 U. S. 657. We have carefully considered this case and the numerous other cases cited by the learned counsel for appellant, and we agree that the weight of authority sustains the general principle announced, but we are not convinced that it can have controlling force in the decision of the present case under the circumstances. It must not be overlooked that the liability sought to be enforced here arises under a Montana statute, and in the first instance we must look to the law of that state to determine its nature, limitation and extent. If the courts of that state had not passed upon the question involved here, it would then be our duty to consider and decide it according to the general principles of law applicable to such cases. But, the supreme court of Montana has passed upon the question in several cases by holding the statute under which the alleged liability in this case arises to be penal, and that its provisions must be strictly construed: Gans v. Switzer, 9 Mont. 408; Elkhorn Trading Co. v. Tacoma Min. Co., 16 Mont. 322; Wethey v. Kemper, 17 Mont. 491; State Savings Bank v. Johnson, 18 Mont. 440. We do not feel at liberty to disregard these decisions of the Montana courts and must conform our administration of the law to them, and this is true independently of what our views on the question involved might be: Ball v. Anderson, 196 Pa. 86. This view of the case makes it unnecessary to discuss the question raised as to the necessity of filing an affidavit of defense. If penal no affidavit is required. The argument of the learned counsel for appellant is able and exhaustive, and if presented to us in the first instance, perhaps convincing, but we are •bound by the Montana decisions as to the penal character of the statute; and if penal, the disposition of the case by the learned court below was clearly right.

Judgment affirmed.


author: Mr. Justice Fell,

text:
    Parks v. Pennsylvania Clay Company, Appellant.

      Estoppel — Title to land — Acquiescences in improvements — Ejectment.
    In an action of ejectment for one acre of land that adjoined a tract of nine acres owned by the defendant, it appeared that the plaintiff had a clear record title while the defendant had no record title. The defendant claimed to have acquired the land at a receiver’s sale. The evidence showed that at a time when the plaintiff was in the brick business with his sons who then owned the nine acres, he built at his own expense two kilns on his land which were used in the business. After he withdrew from the business his sons and a corporation that succeeded them in business used the kilns and a part of the land without charge. This use was permissive only. These kilns were repaired or rebuilt when it became necessary, and a third kiln was located partly on plaintiff’s land. The president of the corporation knew of this location, but before the kiln was completed the corporation passed into the hands of a receiver, who finished the kiln in ignorance of his rights but without the knowledge of the plaintiff. Subsequently, on notice of the plaintiff’s title he abandoned the kiln and afterwards the defendant acquired title to the adjoining land. Held, that the court committed no error in directing a verdict for plaintiff, inasmuch as there were nothing in the facts proved upon which an estoppel could be based.
    Argued Oct. 13, 1908.
    Appeal, No. 34, Oct. T., 1908, by defendant, from judgment of C. P. Beaver Co., June T., 1906, No. 175, on verdict for plaintiff in case of James I. Parks v. The Pennsylvania Clay Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Conway borough. Before Wilson, P. J., specially presiding.
    The court gave binding instructions for plaintiff,
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      J. F. Reed, for appellant.

      William, A. McConnel, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

This was an action of ejectment for an acre of land that adjoined a tract of nine acres owned by the defendant and had been used in connection with it in the manufacture of fire bricks. There was no dispute as to the plaintiff’s record title. He had purchased the land many years before by deed duly recorded, and his title had never been divested by conveyance or by legal process. The defendant had no record title. Its defense to the action was that the plaintiff was estopped by his silent acquiescence with knowledge when improvements were made on his land by the defendant’s predecessor in title under the erroneous belief that it owned the land. This defense was not sustained by the evidence.

At a time when the plaintiff was associated in business with his sons, who then owned the adjoining tract, he built at his own expense two brick kilns on his land, which were used in connection with the business carried on by the partnership. After he had withdrawn from the partnership, his sons and a corporation that succeeded them in business used the kilns and a part of the land without charge. This use was permissive only and not under any claim of right. These kilns were repaired or rebuilt when it became necessary, and a third kiln was located partly on the plaintiff’s land. Before work had been commenced on this kiln, the president of the corporation was informed that the location was partly over the line of its property. Before the kiln was completed, the corporation passed into the hands of a receiver, who finished the kiln in ignorance of his rights but without the knowledge of the plaintiff. Subsequently, on notice of the plaintiff’s title, he abandoned the use of the kiln and took up the tracks leading to it. This was the situation at the time of the receiver’s sale, under which the defendant acquired title to the adjoining land.

•There was nothing in the facts proved upon which an estoppel could be based, and a verdict was properly directed for the plaintiff.

The judgment is affirmed.