text:
    Nolan v. Reading City, Appellant.

      Municipalities — Bond—Sewer assessments — Failure to make adequate assessments.

    Where a city has issued bonds containing statements that the principal and interest of the bonds was secured solely by sewer assessments levied under a specified ordinance, that the city was only to be liable for the amount collected on such assessments, and that the requirements of the ordinance and laws had been fully complied with, a negligent failure on the part of the city to make an assessment adequate to provide for the whole of the bond issue renders the city liable to any bondholder whose bond has not been paid by reason of the inadequate assessment.
    Argued Jau. 29,1912.
    Appeal, No. 330, Jan. T., 1911, by defendant from judgment of C. P. Berks Co., Jan. T., 1911, No. 80, for plaintiff in case of Edward C. Nolan v. City of Reading.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on municipal bonds.
    The case was tried by the court without a jury under the Act of April 22,1874, P. L. 109.
    Endlich, J., filed the following opinion:
    I. — Findings of Fact.
    1. An ordinance of the city of Reading, approved 7 Aug., 1905, provided for the construction of a sewer in the Fourth House Sewer District of the city, the exact cost and expense thereof to be assessed according to a method prescribed upon the properties in the district liable therefor.
    2. In pursuance of the ordinance a contract was entered into between the city and a certain contractor for the construction of the sewer and the work done accordingly.

      3. For the purpose of defraying the cost and expense of the construction, i. ev the amounts due the contractor, the wages of inspectors employed by the city to supervise the execution of the work, the charges for clerical services necessitated by the undertaking, and interest accruing from time to time upon deferred payments in connection with it, the city issued bonds to the amount of $157,184.28.
    4. In conformity with the provisions of the ordinance the bonds so issued contain the following stipulations—
    (a) This bond principal and interest is based solely and rests alone for its security upon the assessments made and levied under said ordinance * * * upon the property within the limits of the Fourth Sewer District of the city of Reading.
    (b) It is expressly understood that the city of Reading is only to be liable for the amount collected on said assessments and as fast as collected, and as often as there are $500 in the hands of the city treasurer from said assessments * * he shall call in bonds for payment.
    (c) The requirements of said ordinances and laws have been fully complied with.
    5. Through the negligence of the city engineer’s office of the city of Reading, the total assessments against the properties within the limits of the Fourth Sewer District liable thereto amounted to only $129,-755.60, i. <?., $27,428.68 less than the bonds issued against the same.
    6. Part of the assessments made has been collected by the city and applied to the payment in full of bonds called in for that purpose. For unpaid assessments liens were duly filed to Nos. 1-1305 Jan. Term, 1908, C. L. D., but remain in whole or in large part uncollected, although under the terms of the ordinance the last of the 10 installments in which the assessments were payable was due May 28, 1910, and a default for two months in the payment of any installment made the whole at once payable.
    7. The plaintiff by purchase became and is the holder of 4 of the bonds, which have not been paid or called in for payment, aggregating $2,000, with interest at the rate of 6 per cent, per annum from June 6, 1910.
    8. Demand was made upon the city by plaintiff on Dec. 6, 1910, for payment of the principal and interest of said bonds held by him, but was refused on the ground of the absence of funds available for the purpose, and no provision has since been made by the city looking towards such payment.
    II. — Discussion.
    The issuance of the bonds by the city and their acquisition by plaintiff established a contract between them. By it the city undertook to pay a certain sum to the plaintiff to be first collected by it from the owners of properties upon which the cost of the construction the bonds were to provide for was to be assessed by the city. Of course the city, in so undertaking, impliedly assumed to make the assessment and to collect it, and in common sense and fairness must be understood to have contemplated an assessment as adequate for the purpose and its collection as promptly as with due diligence they could be so made. The purchaser of the bonds under a clause limiting the liability of the city upon them to the proceeds of the assessment had the right to regard the city as so assuming. A binding agreement to that effect is therefore to be treated as a part of the contract between him and the city; for what is implied in a contract is as much a part of it as what is expressed in it: Siegel v. Lauer, 148 Pa. 286, 244 (and see also Waslee v. Rossman, 231 Pa. 219, 227). Moreover, the city expressly stipulated that the requirements of the ordinance had been fully complied with. One of those requirements was the assessment of the “exact cost and expense” of the improvement upon the properties liable therefor; which clearly means an assessment sufficient to meet the whole of the cost and expenses to be provided for. When through the carelessness of its own officials the city then made an inadequate assessment it committed a breach not only of one branch of its implied contract with the plaintiff, but also of its express assurance just referred to. It is conceded and is undoubtedly true that there is now no means of retrieving the error committed by an additional assessment covering the deficiency. The mischief is done, and there is no one to answer for it to the plaintiff except the city through whose short-coming it occurred. In equity, — and the action of assumpsit partakes of the nature of a bill in equity: Martzell v. Stauffer, 3 P. & W. 398, 402; Hind-march v. Hoffman, 127 Pa. 284, 288; Brown v. Title & Trust Co., 174 Pa. 443, 447, — it is plain that the city ought to be held to make him whole. Whilst there seems to be no authoritative declaration of its liability to do so under the precise state of facts here existing, there are certain adjudications in this state in principle decisive of this case.
    In Addyston Pipe & Steel Co. v. Corry, 197 Pa. 41, a 'contract for the construction of a sewer provided that its price should be paid partly by money in the city treasury and partly by assessments on abutting and non-abutting properties. The assessment was made against both, but was subsequently found to have been unlawfully made against the non-abutting properties, which were not liable to assessment. These assessments being irrecoverable by the city, the total of the assessment was inadequate. The city was held liable for the deficiency. And so in Gable v. Altoona, 200 Pa. 15, the city was held liable for bonds issued by it payable out of assessments on property, where the assessment turned out to have been illegally made and void. O’Hara v. Scranton, 205 Pa. 142, and Dime Deposit & Discount Bank v. Scranton, 208 Pa. 383, were actions upon bonds issued by the city •with a restriction upon its liability entirely similar to that in the bonds here sued on. The possibility of collecting part of the assessment was lost through the neglect of the city officials to file liens in time or their failure to proceed upon liens that had been duly filed, and there was a consequent deficiency. In the Common Pleas and on appeal by the city, it was held liable. Substantially to the same effect seems to be the decision rendered May 17, 1911, in Dale v. Scranton, 231 Pa. 604. The broad underlying reason of all these rulings is that, notwithstanding the express limitation of the liability of the city to the avails of the assessment, it is bound to make good any deficiency thereof to meet the whole bond issue, where that deficiency occurred in any way through the default of its own officers. That principle is as applicable to the case here presented as to those to which it was applied in the decisions cited. It follows that the plaintiff is entitled to recover.
    The question next arises, what is he entitled to recover? The city will never by virtue of the assessment made by it be in a position to pay him in full. It has no funds now available for the purpose. It is doubtful when collection will be made of the amount secured by the liens filed by the city. Its contract with plaintiff has been broken. Its liability to him for the whole face of the bonds and interest is certain. It would seem that in analogy to the rule adopted in U. S. Bldg. & Loan Ass’n v. Silverman, 85 Pa. 394, plaintiff is entitled to a judgment for the full amount of his claim. The control over its enforcement in such manner as shall be equitable and proper will still remain with the court
    III. — Conclusions of Law.
    A — The contract between the city of Reading and the holder of bonds issued by it under the ordinance of 7 Aug., 1905, implies an undertaking by the city and imposed upon it the duty to make an assessment upon the properties liable thereto sufficient to meet the whole of the bond issue, and to proceed with reasonable diligence in the collection of the amounts due thereunder.
    B — The negligent failure on the part of the city, acting through its officers, to make an assessment adequate to provide for the whole of the bond issue constitutes a breach of that undertaking and duty and renders the city liable to the plaintiff in this action.
    C — The plaintiff is entitled to recover in this action a judgment for the entire principal of the bond held by him, with interest from June 6, 1910.
    And now, June 24,1911, it is ordered that the foregoing decision be filed in the office of the prothonotary, and that he forthwith give notice thereof to the parties or their attorneys in conformity with the Act of April 22, 1874, Sec. 2, P. L. 109.

      Error assigned, was inter alia the judgment of court in favor of the plaintiff for f2,174.00.

      E. P. Keiser, city solicitor, for appellant.

      John E. Bridenbaugh, for appellee.
    March 18, 1912:
   Per Curiam,

The judgment is affirmed on the findings of fact and conclusions of law by Judge Endlich.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Proctor v. Lehigh Valley Transit Company, Appellant.

      Negligence — Collision between wagon and car — Contributory negligence — Casé for jury — Imputed negligence.

    In an action against a street railway company to recover damages for personal injuries resulting from a collision between a car and a wagon in which the plaintiff was riding, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence shows that the plaintiff, the driver of the wagon, and three other occupants of the wagon were employees of the defendant company; that they were driving along a turnpike road at the side of which were the defendant’s tracks; that to reach their destination they had to cross the tracks at right angles at one or the other of two cross roads, the latter of which was usually taken; that the wagon was covered on the sides but open at each end; that the plaintiff sat in the body of the wagon and had a clear view of the road for a considerable distance in the direction from which the car came, and that the wagon was struck while in the act of crossing the tracks at the first cross road; and defendant testifies that he did not know that the driver intended to turn from the road at this point.
    Argued Jan. 29,1912.
    Appeal, No. 237, Jan. T., 1911, by defendant from judgment of C. P. Montgomery Co., Dec. T., 1910, No. 102, on verdict for plaintiff in case of Edgar E. Proctor v. Lehigh Valley Transit Company.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Weand, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Nicholas H. Larzelere, with him Franklin L. Wright and Charles Townley Larzelere, for appellant.
    A passenger in a vehicle must use the best faculties which he has of seeing and hearing, and cannot remain careless and inert himself, and shift the whole responsibility upon the driver: Ehrisman v. Ry. Co., 150 Pa. 180; Kannenberg v. Traction Co., 215 Pa. 555; Thomas v. Ry. Co., 132 Pa. 504.
    But, in addition to the facilities for a view of the approaching car by appellee, there remains the confessed fact by the appellee that he did not look for a car, and moreover denied the necessity of looking, but stood upon the ground that looking was solely the business of the driver. It cannot be said that a passenger in a wagon which is stopped preparatory to crossing can disregard his own senses and faculties of sight and hearing and rely upon his driver. This is fully sustained by the authorities: Kunkle v. Lancaster County, 219 Pa. 52; Bracken v. Penna. R. R. Co., 32 Pa. Super. Ct. 22; Crescent Twp. v. Anderson, 114 Pa. 643; Dean v. R. R. Co., 129 Pa. 514.
    A person engaged in a common enterprise with another is bound by the latter’s negligence occurring in the course of the enterprise: Wade v. Western Maryland R. R. Co., 220 Pa. 578; Greenwood v. P. W. & B. R. R. Co., 124 Pa. 572; Omaha & R. V. Ry. Co. v. Talbot, 67 N. W. Repr. 599; Hajsek v. R. R. Co., 97 N. W. Repr. 327; Bush v. Union Pac. R. R. Co., 64 Pacific Repr. 724; Mo. K. & T. Ry. Co. v. Bussey, 71 Pacific Repr. 261; Fechley v. Traction Co., 96 S. W. Repr. 421; Dean v. R. R. Co., 129 Pa. 514; Allyn v. R. R. Co., 105 Mass. 77; Lundergan v. N. Y. Cent. etc. R. R. Co., 203 Mass. 460 (89 N. E. Repr. 625).
    The cause of the accident was the sudden act of the driver of the vehicle in suddenly turning across the track parallel'to his course, without looking for an approaching car, which was distant only a short interval: Harman v. Traction Co., 200 Pa. 311; Kane v. People’s Pass. Ry. Co., 181 Pa. 53; Thomas v. Pass. Ry. Co., 132 Pa. 501.

      Joseph S. Kratz, with him William E. Houston, for appellee.
    The case was for the jury: Little v. Telegraph Co., 213 Pa. 229; Carlisle Boro. v. Brisbane, 113 Pa. 544; Jones v. Lehigh etc. R. R. Co., 202 Pa. 81; Dryden v. R. R. Co., 211 Pa. 620; Carr v. Easton, 112 Pa. 139; Finnegan v. Foster Twp., 163 Pa. 135.
    In Pennsylvania the law has been since Carlisle v. Brisbane, 113 Pa. 544, that the negligence of the driver of a private conveyance can never be imputed to an innocent plaintiff: Bunting v. Hogsett, 139 Pa. 363; Carr v. Easton, 142 Pa. 139; Finnegan v. Foster Township, 163 Pa. 135; O’Toole v. R. R. Co., 158 Pa. 99; Mann v. Weiand, 81* Pa. 243; Jones v. R. R. Co., 202 Pa. 81.
    March 18, 1912:
   Opinion by

Mr. Justice Stewart,

The plaintiff was one of a company of five, all employees of the defendant company, who on the day of the accident had been together engaged in doing certain repair work. They were returning from their work to Ambler, the place from which they had started, in a covered wagon drawn by two horses. Yost, the foreman, was driving the team, and the course pursued was along a turnpike at the side of which ran the trolley tracks of the defendant company. There were two ways of reaching Ambler; one, the first to be reached, by turning aside from the turnpike at the point where the crossing of the trolley tracks was attempted, and going by Tennis avenue; and one by following the turnpike further and turning aside into Rose Valley road. When the first was reached, Yost turned his horse to the right with a view to cross the trolley tracks at that point and enter upon the Tennis avenue road. While in the act of crossing, a repair car of defendant company, coming from the same direction as that pursued by the wagon, collided with the wagon, and in the collision the plaintiff received his injuries. The negligence charged to the company was, failure in the motorman to give proper signal of the approach of the car, excessive speed of the car, and failure of the motorman to have his car under control. The case exhibits the usual conflict of testimony with respect to each of these several grounds of complaint; and if the appeal involved nothing more than the question of defendant’s negligence, little or no discussion would be required, since the evidence clearly warranted a submission of this question to the jury, and it was submitted under proper instructions. Another question was presented, however, which calls for and has received careful consideration. It is necessary here to state somewhat more fully the facts. The car which collided with the wagon, as we have remarked, was a repair car, and was therefore not running on any schedule of which the public had notice. The persons in the wagon however knew that this car was being employed on that day, having passed it while it was at rest at a point about 2,500 feet back from where the accident occurred; but they were without knowledge as to when it would start or the direction it would take. Unfortunately for the occupants of the wagon it followed in their rear. It appears from defendant’s testimony that as one approaches the crossing attempted by the driver he may, if he look in the direction from which the car came, have an unobstructed view of the trolley tracks for about 800 yards. The parties in the wagon were seated in this manner: Yost, the foreman, was in the driver’s seat with Rosenberger to his left on the same seat; Carruthers sat on a tool box in the body of the wagon; Weil sat on the end-gate facing to the rear, with his feet or legs outside the wagon; the plaintiff sat on a coil of wire on the floor of the wagon about midway between the front and rear of the wagon and opposite Carruthers. Occupying this position, plaintiff says he was somewhat lower than either Carruthers or Weil. The curtains at the side of the wagon were down, completely shutting off the view at either side. But to the rear and front there was nothing to obstruct the view, there being no curtains at either end. This was the situation within the wagon as it approached the crossing and as the crossing was attempted. The wagon was about five feet in width, while in height it was quite sufficient to admit of one standing erect within it. Yost testified that when he reached a point within fifty or seventy-five feet of the crossing, he “sort of halted his team” which he had been driving at a trot, looked, and not seeing a car — though upon his own admission the track was clear of obstruction for a distance of 800 feet — he drove upon the crossing, and before he had knowledge of danger the collision occurred. We may assume for present purposes that Yost was guilty of negligence. But his negligence, whatever it was, may not be imputed to this plaintiff. Yost had entire charge or control of the team. One may not, when traveling as this plaintiff was, divest himself of all obligation to exercise reasonable care for his own safety. If the driver negligently incurs a danger which was understood by, or would have been known to, the passenger, had he exercised ordinary care, and the passenger make no interference and no effort to look out for his own escape, the rule that prevents a recovery by the driver in case accident happens and injuries are sustained, applies equally to the passenger. In the present case the plaintiff had equal, if not better, opportunity than Yost, the driver, to see the approach of the car, while traveling alongside the trolley tracks. Had he looked he must have seen the car; the whole rear of the wagon was open and the view in that direction unobstructed. He may not have been able to see from the exact position in which he sat, but the slightest change in position on his part would have disclosed to him the entire situation. He admits he did not look for a car, and seeks to excuse himself in this regard by putting the duty of looking wholly upon Yost. The proximate cause of the accident, however, was not the driving alongside the trolley tracks, but the attempted crossing of them at that particular place. It follows that plaintiff’s failure to look and his general inattention to his surroundings, can be counted against him as negligence only as these can be connected with the attempt to cross the tracks. If he did not know, and had no reason to suppose that Yost would there make the attempt, until it was too late for him to interfere or escape himself from the danger, the fact that he had failed to look as they were traveling along the road cannot be said to have contributed to the accident in crossing; for had he looked and seen the car approach, while a circumstance from which would arise a duty of increased care and caution in driving, the failure in such duty, if any there was, in.no way contributed to the accident. It was not careless or reckless driving along the turnpike that caused the accident, but the reckless attempt to cross the trolley tracks. In this connection what duty rested on the plaintiff? The turn from the road to the crossing was almost at a right angle. Up until the moment the turn was made, nothing had occurred to indicate to the plaintiff that the crossing was there to be made. Was it then too late for him to do anything to avoid the result? So in its final analysis the question in the case must be, was the plaintiff bound to anticipate Yost’s attempt to cross at that point? He knew that the crossing there was into a road which led to Ambler where they were going. He knew also of another further along which was also into a road which led to Ambler, and which he says, was the one usually taken. He says he did not know that Yost was going to attempt the former. Had he known that Yost’s purpose was to adopt the first crossing, his negligence would be self-confessed. But he says he did not know it, and it cannot therefore be said that he failed in any positive duty prescribed by law. Whether he was guilty of negligence which contributed to the accident depended upon consideration of all the circumstances of the case, the precise measure of his duty under the circumstances being indeterminate. The question was therefore one for the jury, and it was submitted under careful and proper instructions, resulting in a verdict for the plaintiff.

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


author: Me. Justice Beown,

text:
    Garrett, Appellant, v. Moore.

      Decedents’ estates — Decedents’ debts — Lien on real estate — Act of June 11/., 1901, P. L. 562 — Husband and wife — Promissory note —Conveyance in fraud of creditors.

    Where a husband gives his wife a promissory note payable at his death, and after the death of his wife conveys all of his real estate to his son in consideration of the latter supporting him for life, the executor of the wife cannot after the death of the husband maintain a bill in equity to declare the deed to the son fraudulent and void as to the wife’s estate and for a decree that the property conveyed by the deed should be liable for the note, where it appears that the lien of the debt represented by the note had not been continued as required by the Act of June 14, 1901, P. L. 562, and that the decree if entered would be of a date more than two years after the death of the decedent; and this is true, even if the conveyance to the son had been in fraud of the wife’s estate.
    Argued Jan. 29,1912.
    Appeal, No. 304, Jan. T., 1911, by plaintiff from decree of C. P. Montgomery Co., Oct. T., 1908, No. 7, dismissing bill in equity in case of William Garrett, Surviving Executor of the Estate of Mary Ann Moore v. Elisha H. Moore.
    Before Pell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.

      Bill in equity to declare a deed void. Before We and, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned, was decree dismissing the bill.

      Joseph deF. Junkin and William I. Schaffer, with them Montgomery Evans, for appellant.

      L. M. Childs, with him O. B. Dickinson, for appellee.
    March 18, 1912:
   Opinion by

Me. Justice Beown,

On November 6, 1869, John H. Moore executed and delivered to his wife, Mary Ann Moore, his promissory note for $6,000, payable, upon his death, to the order of a trustee for her. She died January 27, 1897, leaving a will, of which the appellant is the surviving executor, and the said note given by her husband is part of her estate. John H. Moore died January 27,1907. On September 24,1902, he conveyed to his son, Elisha H. Moore, the appellee, the lots or pieces of land in controversy for a consideration named in the deed of $4,800 in cash. As a matter of fact the real consideration for the conveyance was the agreement of the son to provide a home for the father and to care for him for the rest of his life. When Moore died he was insolvent, his personal estate being insufficient to meet the administration expenses. On November 24, 1908, this bill was filed by the appellant to have the deed from John H. Moore to his son declared fraudulent and void as to his wife’s estate, and for a decree that the property conveyed to the son should be liable for the payment of the $6,000 note. Upon a hearing on bill, answer and testimony taken by both sides, the bill was dismissed by the court below on November 3, 1911, for the reason, among others, that the conveyance by John H. Moore to the appellee had not been executed in fraud of the rights of his wife’s estate.

Whether the conveyance of Moore to his son was fraudulent and void as to the estate of his wife, which held his note for $6,000 at the time it was made, is an immaterial question, for, even if the court below had found that it had been fraudulently made and accepted for the purpose of avoiding payment of the said note, such a finding would not avail the complainant. It will, therefore, serve no useful purpose to pass upon the correctness of the finding that the conveyance was not fraudulent and void.

The relief for which the complainant prays is a decree making the lots held by the son under the deed from Ms father liable for the payment of the note given to Mrs. Moore, his stepmother. The obligation was an unrecorded debt of the decedent, and became, at the time of his death, a lien, to continue for two years, against any real estate he might have then owned. This proceeding, in effect, is to have the real estate which he conveyed to his son declared to have still been his at the time of his death, so far as his wife’s estate was concerned, on the ground that the conveyance, as to it, was void. Suppose it should be so held; of what avail would such a decree be to the complainant? Even if Moore had died actually seized of the lots, they would not now be liable for the payment of the note held by his wife’s estate. His heirs or devisees, or their assigns, would hold them discharged from the lien of every unrecorded debt which had not been continued as required by the act of June 14, 1901, P. L. 562, in force at the time of Moore’s death. That act provides: “No debts of a decedent, except they be secured by mortgage or by judgment entered or revived by scire facias within five years prior to the death of such decedent, shall remain a lien on the real estate of such decedent longer than two years after the decease of such debtor, unless an action for the recovery thereof be commenced, and be indexed in the judgment index as other liens are indexed against such decedent, his heirs, executors or administrators, within the period of two years after his decease, and duly prosecuted to judgment.” This statutory requirement was not complied with by the complainant, and no land of the decedent, the title to which stood in his name at the time of his death, or of which he may have fraudulently tried to divest himself for the purpose of defrauding his wife’s estate, remained liable for his indebtedness to it after the expiration of two years from his death. The bill filed by the complainant against the son may have been a proper proceeding to have the deed to him declared void, if it had been fraudulently executed and he had fraudulently accepted it: Fowler’s App., 87 Pa. 449; but no action for the recovery of the amount due upon the note had been commenced “and indexed in the judgment index as other liens are indexed against such decedent, his heirs, executors or administrators, within the period of two years after his decease,” and the land has passed beyond the reach of complainant as an asset of Moore’s estate for the payment of his indebtedness to his wife, no matter where the title may now be.

As the first reason given by the court below for dismissing the bill must be sustained, the others need not be considered. Decree affirmed at appellant’s costs.


author: Mr. Justice Potter,

text:
    Garrett v. Turner, Appellant.

      Appeals — Appeals from Superior Court — Assignments of error.

    1. On an appeal from the Superior Court, tbe assignments of error filed in the Superior Court to the judgment of the court of original instance should be set forth, and the alleged error in acting upon these assignments should be specified.

      Constitutional law — Special legislation — Automobiles—Service outside of county — Act of April 27, 1909, P. L. 265 — Change of venue.

    2. The Act of April 27, 1909, P. L. 265, relating to motor vehicles and providing that, in actions for damages against the owners of such, service may be had in another county than where the accident occurred and the suit is brought, is constitutional and does not violate Art. Ill, See. 7, of the Constitution of Pennsylvania, which provides that the general assembly shall not pass any local or special law “regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts.”
    3. The people who own, use or operate automobiles may very properly be classed together and made subject to legislation which, though distinctive, is appropriate to them, provided the legislation applies to all within the class and affects them all alike. Trades, occupations and professions are proper subjects of classification.
    4. The Act of April 27, 1909, P. L. 265, does not change the venue of the action. Legislation authorizing service of process can in no sense be properly construed as changing the venue of the action. There can be no change of venue until the defendant has been brought into court. If a change.of venue is then to be made, it will be on the application of one of the parties.
    5. The Act of April 27, 1909, P. L. 265, Sec. 24, is an entirely new provision, and does not amend the Act of July 9, 1901, P. L. 614, or any other act, and therefore does not violate Art. Ill, Sec. 6, of the Constitution relating to amendment of acts.
    Argued Jan. 29,1912.
    Appeal, No. 249, Jan. T., 1911, by defendant, from judgment of Superior Court, Oct. T., 1910, No. 233, affirming judgment of C. P. Montgomery Co., Oct. T., 1910, No. 149, on verdict for plaintiff in case of Harvey Garrett v. Thomas Turner.
    Before Fell, O. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from Superior Court. See Garrett v. Turner, 47 Pa. Super. Ct. 128.
    The following opinion was filed by Piorter, J.
    The plaintiff brought this action to recover damages for injury to his person and property alleged to have been caused by the negligence of the defendant in driving his motor vehicle on York road, a public highway in Montgomery county.
    The action was brought in Montgomery county in which the damages were sustained, and the sheriff of that county deputized the sheriff of Philadelphia county, wherein the defendant resides, to serve the writ of summons, and the sheriff of the latter county made a return of service, which is in all respects regular. The defendant moved to set aside the service upon the ground that the “return is incorrect in that the person to whom the aforesaid summons and statement were handed, was not an adult member of the family of the aforesaid defendant, nor did the said copy of the statement have endorsed thereon a rule to plead. That therefore, the summons and statement have not been served upon the said defendant in accordance with the provision of the act of assembly for such case made and provided.” The court granted a rule to show cause why the service of the summons and statement should not be set aside. The defendant, this appellant, in support of this motion to set aside the service of the summons took testimony tending to establish that his daughter, to whom the summons was handed, at his place of residence, was only 19 years of age, thus contradicting the return of the sheriff that service had been made on an adult member of his family. The question whether the rule to plead was properly served is entirely distinct from that of the service of the summons, and has been eliminated from the case by the act of the defendant in pleading without any rule having been taken upon him to do so. The court after argument, overruled the motion to set aside the service of the summons and statement of claim and the first four specifications allege error in this action. The only ground for setting aside the service of the summons and statement suggested in the court below was that the return of the sheriff that they had been served on an adult member of the family of the defendant at his residence, was untrue, in that the member of the family to whom the summons and statement were delivered, was not an adult. The return was good on its face and it ought not to have been set aside upon evidence aliunde, tending to establish that it was not true: Park Bros. & Co., Ltd. v. Oil City Boiler Works, 204 Pa. 453; Ben Franklin Coal Co. Ltd. v. Penna. Water Co., 25 Pa. Super. Ct. 628.
    This having been the only question raised by the appellant in the court below, and he having gone to trial upon the merits, the first four specifications of error might properly be dismissed upon this ground.
    The appellant now contends that the 24th section of the Act of April 27, 1909, P. L. 265, entitled “An act relating to motor-vehicles, etc.,” under the provisions of which the sheriff of Montgomery county, where the damages were sustained, deputized the sheriff of Philadelphia county, where the defendant resided, to serve the process in this proceeding, offends against that paragraph of Article III, section 7 of the constitution of Pennsylvania, which provides that the general assembly shall not pass any local or special law “regulating the practice or jurisdiction of or changing rules of evidence in any judicial proceeding or inquiry before courts, etc.,” and that, therefore, there was no authority for the service of this summons in Philadelphia county. The 24th section of the Act of 1909, P. L. 272, provides that: “All civil actions for damages arising from the use and operation of any motor-vehicle, as aforesaid, may be brought in the city or county in which the alleged damages were sustained, and service of process may be made by the sheriff of the county where the suit is brought, deputizing the sheriff of the county wherein the defendant in the suit, or his registered agent, resides, or where service may be had upon him, under the existing laws of this commonwealth, in like manner, as process may now be served in the proper county.”
    This section of the statute does not confer upon any court, jurisdiction of any action which they did not already possess, nor does it take from any court any jurisdiction with which it was already vested. The actions to which it relates are those “for damages arising from the use and operation of any motor-vehicle as aforesaid.” The preceding sections of the statute had provided for the registration of motor vehicles, prohibited their operation upon any public street or highway in the commonwealth until so registered, had provided regulations as to the manner of their use on the public roads, had taken away from the local authorities all power to ordain regulations inconsistent with the provisions of this statute, and had made it unlawful for such local authorities to exclude such motor vehicles from any public road open to horse-drawn vehicles.” The use and operation of any motor-vehicle, as aforesaid, referred to in the 24th section, is the use authorized by the preceding sections of the statute;' this is, of every public road in the commonwealth, by duly registered motor-vehicles. This section of the statute applies to all civil actions for damages arising from the use and operation of motor vehicles upon every highway in the state. The courts of the county where such damages were sustained always had jurisdiction of actions of this character. This section of the statute made no change in the jurisdiction of the courts, the only effect of the section, challenged by the appellant related to the service of process, outside of the county in which the action was brought, when the residence of the defendant was in another county. This provision as to the service of process applies to the courts of all the counties of the state; it cannot, therefore, be said to be local. The contention of the appellant is that it is special, in that it imposes a peculiar burden upon owners of motor-vehicles, for the exclusive benefits of those who are injured by and have a right of action against them.. This section of the statute does not relate simply to action for damages against the owners of motor-vehicles; it applies to all who become liable, under existing laws to answer in damages because of the manner in which they use and operate a motor-vehicle upon a public highway, whether they have owned, hired or borrowed the vehicle. The owner and operator of a motor-vehicle enjoys the benefit of this section of the statute with all other citizens, upon equal terms; if his motor-vehicle is injured or he suffers personal hurt, through the negligence, recklessness or intentional misconduct of one operating another motor-vehicle, this section of the statute puts it in his power to have his right to damages determined within the jurisdiction where the injury was suffered. The complaint of the appellant is that the recovery of damages for the negligent operation of a motor-vehicle as well as for negligence in the management of horses upon a public highway must both be in an action of trespass and that all the proceedings! in such actions, including the manner of the service of the j writ, should be precisely similar, in order to comply with ] the provisions of the constitution. i
    I The invention, development and use of the automobile j introduced an entirely new element and revolutionized ! travel upon all the highways of the state. The operation of these motor-vehicles at exceedingly high rates of speed introduced a new element of danger for all those who enter upon the public highway. Negligence in the operation of motor-vehicles involves great danger to the lives and property of others using the highways. In former times, vehicles drawn by horses or oxen moved at a comparatively low rate of speed, and even in cases of a runaway, others upon the highway but infrequently had difficulty in avoiding injury or danger, when vehicles so drawn were negligently managed and injured the person or property of others, there was usually but little difficulty in locating the person responsible for the injury. Such vehicles did not usually travel long distances and the person responsible for the injury inflicted by them could usually be found somewhere within the region where the cause of action arose. The modern vehicle driven by an engine is capable of traversing the state from one end to the other within a single day. Such vehicles make journeys far distant from the residence of the person responsible for negligence in their operation, thus making it difficult for the person injured, in person or property, to even ascertain the identity of the person responsible for his injuries, and still more difficult for him to obtain redress, in case he has to follow the negligent operator of the engine to some distant part of the state.
    These considerations led, in earlier years, following the introduction of this class of traffic, to the adoption of stringent police regulations with regard to the running of motor-vehicles on the highways of numerous municipalities of the commonwealth. Each municipality had its own code of regulations and the numerous codes greatly varied, some of the requirements were perhaps unreasonable. The operator of an automobile could form no idea from reading the rules of one municipality what new regulations he might have to observe when he crossed the line into the jurisdiction of some municipal neighbor. This was the condition of affairs when the legislature of the state assumed the duty, in the exercise of the supreme police power with which it was vested, to establish uniform regulations with regard to this matter and limit the power of local authorities to the ordaining of regulations which were not inconsistent with the uniform code. The Act of April 27th, 1909, P. L. 265, is the fink! expression of the legislative will upon this subject and supersedes all prior legislation inconsistent therewith. This statute regulates the use of all public highways within the commonwealth and with regard to that use, constitutes as a distinct class all those who operate motor-vehicles upon-public roads. Since the adoption of the legislature to properly classify subjects of legislation has been frequently declared and is now firmly established. Legislation as a class distinguished from a general subject is not special but general, and classification is a legislative question subject to judicial revision only so far as to say that it is found on real distinction in the subjects classified, and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition. If the distinctions are genuine, the courts cannot declare the classification void, though they may not consider it to be on sound basis. The test is, in wisdom, put good faith in the classification: Seabolt v. Commissioners, 187 Pa. 318; Foster Township Road Tax, 32 Pa. Super. Ct. 51; Durkin v. Kingston Coal Co., 171 Pa. 193; Sugar Notch Borough, 192 Pa. 349; Commonwealth v. Fisher, 213 Pa. 48; Commonwealth v. Winkelman, 12 Pa. Super. Ct. 497. The constitutional requirement is that laws, upon the subjects discriminated by the section of the constitution in question, shall be general, not local or special, and uniformity of results is only one of the judicial tests applied to laws for the determination of their character as to generality. A law may by classification or otherwise produce some diversion of result and yet be general, but where the classification is based on genuine distinctions, its expediency is for legislative determination. Stegmaier v. Jones, 203 Pa. 47.
    The Act of April 27th, 1909, established a universal rule which applies to all persons who operate motor-vehicles upon any public highway within the commonwealth, and it is a general statute; Strine v. Foltz, 113 Pa. 349. The wide extent of the country covered by the movement of a motor-vehicle renders it more probable that, when negligently operated, an accident may occur and an injury be inflicted in a county other than that in which the operator has his residence. The ease and rapidity with which the operator of a motor-vehicle may vanish from the scene where he has inflicted an injury, renders it much more difficult for the party injured to call the wrongdoer to account in the county where the injury was inflicted and where the witnesses, by whom the negligence of the defendant must be established, resides, than is the case where injury results from the negligent management of a horse-drawn carriage. The operator of a motor-vehicle whose negligence has caused an injury on a public highway in a county other than that in which he has his place of residence may not only at the time quickly withdraw from the county where the injury has been inflicted, but the speed at which he is about to move along the roads would permit him to subsequently revisit that county at his pleasure, without any risk of being served with legal process while he was within its boundary. The negligent operator of an automobile has thus a manifest advantage over the driver of a horse, in avoiding service of process within the county where his negligence has caused an injury and the party injured is at a corresponding disadvantage in obtaining redress. It is on this difference that the discrimination in the Act of 1909, with regard to the service of process, is founded and it is a fair and constitutional basis for the legislative discretion: Kennedy v. Insurance Co., 165 Pa. 179; Clark’s Est., 195 Pa. 520. The first four specifications of error are dismissed.
    The evidence produced by the plaintiff, if believed, was certainly sufficient to sustain a finding that the defendant had operated his motor-vehicle negligently, upon the public highway, and that the plaintiff had been injured in person and property as the direct result of such negligence, the defendant testified, as did his witnesses, in a manner, which, if believed, entirely relieve him from all responsibility for the accident. The question thus presented was not one of law, but of fact, that question was for the jury, and it would have been error for the court to have entered a judgment of non-suit, or to have given binding instructions in favor of the defendant, or to have entered judgment in favor of the defendant non obstante veredicto. All the specifications of error are overruled. The judgment is affirmed.

      Error assigned, was the judgment of the Superior Court.

      J. Ambler Williams, with him J. O. Eberhard, Jr., for appellant.

      Samuel H. High, with him John Faber Miller, for appellee.
    March 18, 1912:
   Opinion by

Mr. Justice Potter,

This is an appeal from the judgment of the Superior Court affirming the judgment of the Court of Common Pleas of Montgomery county, in an action of trespass, to recover damages for the negligent operation of an automobile. The error assigned is that the Superior Court erred in affirming the judgment of the court belrw. This is not a proper specification. The assignments filed in the Superior Court to the judgment of the Court of Common Pleas, should be set forth, and the alleged error in acting upon those assignments should be specified : Mellick v. R. R. Co., 203 Pa. 457. Appellant attacks the constitutionality of that part of the 24th section of the Act of April 27, 1909, P. L. 265, which provides that “All civil actions for damages arising from the use and operation of any motor-vehicle, as aforesaid, may be brought in the city or county in which the alleged damages were sustained; and service of process may be made by the sheriff of the county where the suit is brought deputizing a sheriff of the county where the defendant in the suit or his registered agent resides, or where service may be had upon him, under the existing laws of this commonwealth, in like manner as process may now be served in the proper county.” It is argued that the provision just quoted is special legislation, regulating the practice and jurisdiction in a judicial proceeding or inquiry before courts, and for that reason is in violation of the language of article III, section 7 of the constitution.

The contention of appellant is fully answered in the opinion of the Superior Court where the question is carefully discussed, and it is shown that the distinctions made by the act are genuine, and are based upon public needs which afford a proper basis for the discretion exercised in the matter by the legislature. As is pointed out by the Superior Court, the section of the statute in question neither adds to nor takes away from the jurisdiction of any court in the commonwealth. The new element in the section is the authorization of service of process outside of the county in which the action is brought when the residence of the defendant is in another county. This provision applies to courts of all the counties of the state. It applies to all persons who render themselves liable, under existing laws, to answer in damages for the manner in which they operate a motor-vehicle upon a public highway. The people who own, use or operate automobiles may very properly be classed together, and made subject to legislation which, though distinctive, is appropriate to them, provided the legislation applies to all within the class and affects them all alike. Trades, occupations and professions are proper subjects of classification: 'Wheeler v. Philadelphia, 77 Pa. 338. In no proper sense can this statute be regarded as special in its application. It includes all the members of the class to which it applies; that is, all who negligently use or operate motor-vehicles.

The principle here involved was well illustrated in Clark’s Estate, 195 Pa. 520, where it wras held that a separate classification of surety companies becoming security upon bonds of receivers, assignees, &c., so that the person for whom they were surety might claim credit in their accounts for the fees paid, was held to be within the power of the legislature. The advantage afforded by corporate security over the individual surety, was held to be sufficient to justify discrimination in the act under consideration, and to afford a fair and constitutional basis for the legislative classification. As was there said by Mr. Justice Mitchell, “Constitutions are not to receive a narrow or technical or too literal construction. They get their authority from the adoption of the people, and they are to be read in a broad, and as far as possible, untechnical way to carry out their real purpose.” Another illustration of the principle that difference in conditions constitutes a sufficient and proper basis for classification, appears in Com. v. Fisher, 213 Pa. 48, where the juvenile court act was under consideration. That act applies only to “dependent, neglected, incorrigible and delinquent children under the age of sixteen years” and it was held to be a proper exercise of the legislative power of classification, and therefore constitutional.

There is no merit in the suggestion that the statute in question changes the venue of the action. Legislation authorizing service of process can in no sense be properly construed as changing the venue of the action. There can be no change of venue until the defendant has been brought into court. If a change of venue is then to be made, it will be on the application of one of the parties.

It is suggested that the section of the law in question is an amendment of the Act of July 9, 1901, P. L. 614, regulating the service of process in actions at law; and that the former act in so far as amended, should be reenacted and published at length, as required by article III, section 6 of the constitution, relating to amendment of acts. But section 24 of the Act of 1909 cannot properly be construed as an amendment of a former act. It is an entirely new provision, applying only to the owners or operators of motor-vehicles. The objection here urged in this respect appeared in Searight’s Estate, 163 Pa. 210, where it was claimed that in a later act, the terms of a former act should have been repeated to meet the requirements of article III, section 6 of the constitution. The suggestion was met by Mr. Justice Mitchell, as follows (p. 216) : “The Act of 1887 does Dot undertake to amend the Act of 1834, and, therefore, did not need to repeat its terms. The constitutional provision has reference to express amendments only. Its object, like that of section two of the same article, requiring each act to have its subject clearly expressed in the title, was to secure to the legislators themselves and others interested, direct notice, in immediate connection with proposed legislation, of its subject and purpose. The constitution does not make the obviously impracticable requirement that every act shall recite all other acts that its operation may incidentally affect, either by way of repeal, modification, extension or supply.” And again in Greenfield Avenue, 191 Pa. 290, after citing Searight’s Estate, supra, and numerous decisions in other states, it was said (p. 296): “An act which is complete in itself —the purpose, meaning, and full scope of which are apparent on its face — is valid, although it may operate to alter, extend or repeal a prior act or may provide for the means of carrying its provisions into effect by a reference to a course of procedure established by other acts of the legislature.” And later, in Gilbert’s Estate, 227 Pa. 648, our brother Elkin, in disposing of a similar question, said (p. 651) : “We think this clearly comes within the rule recognized in any cases that an act complete in itself, which applies an established method of procedure, whether it be common law, or statute, or joint operation of both, to a new class by general reference only, does not violate the constitutional provision as to republication, though it may operate to some extent as an extension of a previous statute: Greenfield Ave., 191 Pa. 290; Pinkerton v. Traction Co., 193 Pa. 229; James Smith Woolen Machinery Company v. Browne, 206 Pa. 543.”

The suggestion of counsel that the Act of 1909 violates the Fourteenth Amendment to the Constitution of the United States, is, as was said by Mr. Justice Mitchell in referring to a similar suggestion in Clark’s Estate, 195 Pa. 520, “too far-fetched to require notice.”

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


author: Mr. Justice Mestrezat,

text:
    North Shore Railroad Company, Appellant v. Pennsylvania Company.

      Equity — Findings of fact — Review—Railroads.
    The findings of fact of a court of equity relating to ownership of tracks in a dispute between two railroad companies as to a right to a connection between the two lines, will not be disturbed by tbe appellate court when based upon sufficient evidence, and where there is no manifest error.
    Argued Jan. 30,1912.
    Appeals Nos. 28 and 29, Oct T., 1912, by plaintiff from decree of C. P. Beaver Co., Sept. T., 1910, Nos. 2 and 3, dismissing bills in equity in case of North Shore Railroad Company v. Pennsylvania Company, lessee of and operating the Pittsburgh, Fort Wayne and Chicago Railway.
    Before Fell, C. J., Brown, Mestrezat,. Potter and Stewart, JJ.
    Affirmed.
    Bills in equity for an injunction. See Ohio River Junction R. R. Co. v. Penna. Co., 216 Pa. 316, and Ohio River Junction R. R. Co.’s Petition, 2'19 Pa. 345.

      Errors assigned were decrees dismissing bills.

      W. A. Stone and James L. Eogan, for appellant.

      W. A. McConnell, for appellee.
    March 18, 1912:
   Opinion by

Mr. Justice Mestrezat,

We have examined carefully the questions raised by the numerous assignments in these cases, and fail to find that the learned president judge of the Thirteenth District, specially presiding in the court below, committed reversible error in any of his findings of fact or law. The case has been here twice before, and our familiarity with all the facts convinces us that the trial court reached the correct conclusion in the decrees entered in both cases.

Our decision in Ohio River Junction Railroad Company’s Petition, 219 Pa. 345, determined the right of the company to a connection with the present appellee’s lines, and that question is not in this case. We also held in that case that, under the,agreement of 1884 between The Pennsylvania Company and the Messrs. Park, the company had the right to discontinue the use of the side track and disconnect it from the railroad, and that upon the exercise of the right, the railroad company was entitled to the track superstructure. The company exercised its right under the agreement, February 11, 1903, and'thereafter, as we held, the agreement was at an end and the parties stood with respect to their rights in the same position as though the contract had never been made. These matters were adjudicated in the former cases, but the other questions raised and decided in the present cases by the court below, notwithstanding the contention of the appellant,-were left open for future determination as the opinion in the case cited clearly shows. These questions were raised by the bills filed in the cases at bar, and were determined by the trial court from whose decrees these appeals were taken. All the facts were found and clearly stated by the court, and are amply supported by the evidence. They fully sustain the court in its conclusion, and the decrees dismissing the bills can be set aside only by reversing the findings of fact. A review of the large amount of testimony in the record for the purpose of sustaining the learned chancellor’s findings of fact would unduly extend this opinion, and would serve no good purpose. Our knowledge of the facts of the prolonged contest between these companies, disclosed in the two prior adjudications, and the testimony now before us leave us in no doubt as to the correctness of the decrees entered by the court below.

The decree in each case is affirmed.


author: Me. Chief Justice Fell,

text:
    Trumbower v. Lehigh Valley Transit Company, Appellant.

      Negligence — Street railways — Head on collision between car and wagon — Imputation of negligence — passenger in carriage— Case for jury.

    1. In an action against a street railway company to recover damages for personal injuries by an occupant of a carriage who was injured in practically a head-on collision between one of defendant’s cars and a carriage, the case is for the jury and a verdict and judgment for the plaintiff will be sustained where the evidence tends to show that the accident occurred on a winter night; that snow at the sides of the road was thirty inches in depth and packed and frozen so that vehicles could not pass through it or turn from the track, except at places where openings had been made; that the plaintiff and other occupants of the carriage were vigilant an looking for a car, and that when they first saw one it was 200 or 300 feet in front, running at the rate of 35 or 40 miles an hour; that its head light was very dim, and no notice of its approach had been given; that the driver at once looked for a place where he could turn out, and that the collision occurred while he was in the act of turning into an opening at a gateway.
    2. The negligence of the driver of a private conveyance cannot be imputed to a passenger who has no control over him; but if the passenger voluntarily goes into a patent danger that he could have avoided or joins the driver in testing a danger, he cannot recover for any resulting injury.
    Argued Jan. 30, 1912.
    Appeal No. 342, Jan. T., 1911, by defendant, from judgment of C. P. Montgomery Co., June T., 1910, No. 49, on verdict for plaintiff in case of Adella M. Trumbower v. Lehigh Valley Transit Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Weand, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $(7,500. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant, and in refusing defendant’s motion for judgment n. o. v.

      Nicholas H. Larzelere, with him Franklin L. Wright and Charles Townley Larzelere, for appellant.
    Under the facts there is no evidence or fact which is sufficient to warrant the submission of negligence by the motorman to the jury. The case is very similar to Wagner v. Lehigh Traction Co., 212 Pa. 132.
    Assuming the appellee’s theory that the snow at the side rendered the sides of the highway impassible, she then chanced her safety in a narrow lane formed by snow, without an opportunity of turning out or retracing her steps, at a time when a trolley car was due. This was in itself an act of negligence.
    See also Warner v. People’s St. Ry. Co., 141 Pa. 615.
    The excuse that the plaintiff did not know, the road or the condi tic ns will not avail her. She had been over the road before; she knew the character of the recent storm, the fact that there was a single track in the middle of the highway; and on inquiry she could have learned the true condition from Warburton, who had just traversed it. The burden is upon a person traveling over a road at night to inform himself of danger and not to go blindly into possible danger: Anspach v. Phila. & Reading Ry. Co., 225 Pa. 528; Winner v. Oakland Twp., 158 Pa. 405; Snyder v. Penn Twp., 14 Pa. Super. Ct. 145; Lawrence v. Fitchburg etc. Ry. Co., 201 Mass. 489 (87 N. E. Repr. 898).

      Henry M. Brownbach, for appellee.
    The necessity to give timely notice by an electric car depends upon the circumstances of the case.
    That the wagon was lawfully upon the public highway and lawfully upon the tracks of the appellant is sustained by abundant authority: Rively v. Media etc. Ry. Co., 228 Pa. 9; Minnich v. Wright, 214 Pa. 201; McFarland v. Traction Co., 204 Pa. 422; Rote v. Penna. etc. Ry. Co., 34 Pa. Super. Ct. 508; Sturgeon v. Traction Co., 216 Pa. 322; Hochheiser v. Pittburgh Rys. Co., 226 Pa. 316.
    Even should the court be of opinion that there was concurrent negligence between the driver of the vehicle and appellant, such negligence could not be imputed to the appellee who rode therein by invitation and who assumed no control over the vehicle and used all ordinary care: Snow v. Tract. Co., 45 Pa. Super. Ct. 422; Carlisle Borough v. Brisbane, 113 Pa. 544; Carr v. Easton, 142 Pa. 139; Dean v. R. R. Co., 129 Pa. 514; Crescent Twp. v. Anderson, 114 Pa. 643; Kunkle v. Lancaster County, 219 Pa. 52; Wade v. R. R. Co., 220 Pa. 578; Anspach v. Ry. Co., 225 Pa. 528; Ralston v. Traction Co., 13 Pa. Super. Ct. 412.
    March 18, 1912:
   Opinion by

Me. Chief Justice Fell,

At the place of the accident in which the plaintiff was injured, the defendant’s track was in the middle of a narrow but much used turnpike road. Snow had been thrown from the track on the sides of the road and was of a depth that made it difficult for vehicles to travel at the sides of the road or to turn from the track to the side when cars or vehicles going in an opposite direction were met. This condition had existed for several weeks during which time travel had been practically confined to the track. The plaintiff, a young woman, and two other persons who accompanied her, had been met at a. railroad station by a friend, who was taking them in his carriage to his home as his guests. It was a bright, moonlight night and there was an oil lamp on the front of the carriage. The road was straight for a long distance but the undulations of its surface obscured at times the headlight of a moving car. The horse and carriage were struck by a car which approached from the direction in which they were going. The testimony in relation to the speed of the car, the condition of its headlight, the failure to give warning of its approach, the depth of the snow at the sides of the road and of the care exercised by the driver and by the plaintiff, who was at his side, on the front seat of the carriage, to look out for their own safety was conflicting. It was submitted to the jury by a charge which was full and fair to both sides and exceptionally clear and accurate and to which the only error assigned is the refusal to direct a verdict for the defendant.

There was testimony which tended to show that the snow at the sides of the road was thirty inches in depth and packed and frozen so that vehicles could not pass through it or turn from the track, except at places where openings had been made; that all the occupants of the carriage were vigilant in looking for a car, and that when they first saw one it was two hundred or three hundred feet in front, running at the rate of thirty-five or forty miles an hour, that its headlight was very dim and no notice of its approach had been given; that the driver at once looked for a place where he could turn out and that the collision occurred while he was in the act of turning into an opening at a gateway.

It may be in view of all the testimony in the case, that the driver relied too much on the motorman looking out for him and failed to act with ordinary prudence. But with the driver’s negligence we are not concerned unless it affected the plaintiff’s right to recover.

The negligence of the driver of a private conveyance cannot be imputed to a passenger who has no control over him: Carr v. Easton, 142 Pa. 139; Little v. Telegraph Co., 213 Pa. 229; Walsh v. Ry. Co., 232 Pa. 479; Kammerdiener v. Rayburn Township, 233 Pa. 328. A passenger is answerable for the consequences of his own negligence and if he voluntarily goes into a patent danger that he could have avoided or joins the driver in testing a danger, he cannot recover: Crescent Twp. v. Anderson, 114 Pa. 643; Kunkle v. Lancaster County, 219 Pa. 52. The plaintiff was a guest and had no control over the driver, and the danger in driving in the tracks was not so manifest that she can be said to have been negligent.

The judgment is affirmed.


author: Per Curiam,

text:
    Shoemaker’s Estate.

      Wills — Charitable bequests — Witness—Disinterested witness.

    Prior to tbe passage of tbe Act of June 7, 1911, P. L. 702, a gift to a charity by will failed when one of tbe attesting witnesses was a beneficiary in tbe will altbougb be bad no interest in tbe charity.
    Argued Jan. 30, 1912.
    Appeal No. 5, Jan. T., 1912, by The Academy of Natural Sciences of Philadelphia, from decree of O. C. Montgomery Co., May state court, 1911, No. 37, dismissing exceptions to adjudication in Estate of Martha Shoemaker, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The proceedings were upon the final account of a substituted trustee under the will of Martha Shoemaker, deceased, who died on or about September 20, 1881, letters testamentary upon her estate having been granted November 25, 1881.
    Solly, J., filed the following opinion:
    The question raised at the audit was, is a person, who is a legatee under a will, qualified to be an attesting witness, where the will contains a bequest to a charity in which such person and legatee has no interest? It was decided that he was not a disinterested witness within the intent and meaning of the Act of April 26, 1855, P. L. 328, and the gift to the charity was declared void.
    E. M. Fernon (called Mrs. Fernon in the will), one of the subscribing witnesses, was given a legacy, if she survived one of the life beneficiaries. She died in the lifetime of the beneficiary. A gift was made to the Academy of Natural Sciences of Philadelphia, a charitable institution. The will was executed more than one calendar month before the death of the testatrix. It wag conceded that Mrs. Fernon never was a member of the Academy or interested in it. We held that as she was interested in the will at the time of its execution, by its terms, being a legatee, she was disqualified to be an attesting witness under the law.
    This conclusion was based upon what is laid down in Kessler’s Estate, 221 Pa. 314, and since approved in Stinson’s Estate (No. 1), 232 Pa. 218. The Act of 1855 is construed in these cases, and they hold that the interest which disqualifies a witness thereunder is such an interest as appears to exist at the time of the execution of the will, either by the terms of the will itself, or by reason of the attesting witness being then interested in the religious or charitable institution for which provision is made by the testator, or both, or either, as the case may be.
    We cannot add anything of profit to what is said in the adjudication in discussing the question. When Kessler’s estate was decided, the law was declared to be that no person interested in a will could be an attesting witness to it if there are religious or charitable bequests given. The legislature has changed the law as thus laid down. By the Act of June 7,1911, P. L. 702, the Act of 1855 is amended, and a disinterested witness is defined to be, “a witness not interested in such religious or charitable use” and the intention of the legislature is declared to be that the act as amended shall not apply “to a witness interested in some other devise, bequest, or gift in the same instrument.”
    And now, December 8, 1911, after argument and due consideration, the exceptions are dismissed, and the adjudication is absolutely confirmed.

      Error assigned was in in dismissing exceptions to adjudication.

      George Vaux, Jr., for appellant.

      George K. Brecht, with him Lows M. Ghilds, for appellees.
    March 18, 1912.
   Per Curiam,

We concur in the conclusion announced by the learned judge of the orphans’ court that under the decision in Kessler’s Estate, 221 Pa. 314, the bequest to the appellants was void and on his opinion the order dismissing the exceptions and confirming the adjudication is affirmed at the cost of the appellant.


author: Pee Ctjeiam,

text:
    Moose Home Association Charter.

      Corporations — Charters of the first class — Restriction as to sale of liquors.

    Where the petitioners for a charter for a corporation of the first class make it appear to the court that they do not desire or intend that intoxicating liquors shall be furnished or permitted on the premises of the corporation, and the court in granting the charter inserts a restrictive stipulation as to intoxicating liquors, the court cannot subsequently be convicted of an abuse of discretion in refusing to strike such stipulation from the charter.
    Argued Jan. 30, 1912.
    Appeal No. 11, Jan. T., 1912, by George Gane and Marvin E. Reynolds, on behalf of the incorporators, from order of C. P. Montgomery Co., refusing to eliminate restrictive stipulation In re incorporation of Moose Home Association of Bryn Mawr.
    Before Fell, C. J., Brown, Mestrbzat, Potter and Stewart, JJ.
    Affirmed.
    Petition to eliminate restrictive stipulation in a charter, representing that the petitioners composed a majority of the members of the association.

      The court in banc filed the following opinion:
    Our decree of incorporation contained a proviso that no intoxicating liquors should be sold, furnished or distributed on the premises of the association. This stipulation was made a part of our decree because the president, vice president and treasurer signed a paper indicating that it was the desire of the said home that no intoxicating liquors should be dispensed upon the premises of the association.
    We are now asked to eliminate the provision in our decree relating to intoxicating liquors. It is contended that the officers of the association had no authority to file a stipulation against the use of liquors on the premises.
    We referred the original application to an examiner and submitted to him the following inquiry:
    “Does the proposed corporation intend to dispose of, distribute or otherwise furnish intoxicating liquors to its members?”
    He took the testimony of ten witnesses called by the petitioners. Each and every one declared he was opposed to any distribution or sale of intoxicating liquors on the premises. They also intimated that the association, so far as they were able to determine, would not countenance the sale or distribution of liquors by the home. They offered a poster that was displayed by the house committee which reads as follows: “Any member found bringing liquor into the home shall be fined the sum of five dollars and be debarred from all privilege until the same is paid.” The examiner attached to his report as an exhibit one of these posters.
    It is evident that the court granted the charter, incorporating the provision against intoxicating liquors, in accordance with the expressed desire of the petitioners. If the evidence submitted to the examiner did not express the sentiment of the petitioners, why was it not opposed by some one?

      We were bound to assume that this testimony was furnished by the applicants for the charter to guide us in formulating our decree. If we eliminate the proviso against intoxicating liquors, we will disregard the declared wishes of certain incorporators, without affording ing them a hearing. We find no justification for any interference with the decree already entered and now on file. The application is refused.

      Error assigned was the order of the court.

      Irvin P. Knipe, with him Irving P. Wanger, for appellants.
    No printed brief nor argument for appellee.
    March 18, 1912:
   Pee Ctjeiam,

When a record is brought before us upon certiorari, the scope of our inquiry is to determine by an inspection of the record, whether the power of the court has been exceeded or whether there has been an abuse of discretion. The corporation chartered is not here complaining of the restrictions imposed. But waiving the question of the right of the appellants to be heard, it is evident, as stated in the opinion of the learned judges of the common pleas, that the petitioners for a charter were granted what they asked for.

The order is affirmed at the cost of the appellants.


author: Mr. Chief Justice Fell,

text:
    Commonwealth v. Romezzo, Appellant.

      Criminal law — Murder—Degree—Province of court and jury.

    1. On the trial of an indictment for murder, the question of the degree of murder goes to the jury with the question of guilt, and a peremptory instruction which withdraws it is erroneous; but it is always within the province of the court to point out the duty of the jury under the law and the evidence if they are left free to act.
    2. Where it appears that the killing was committed for the purpose of robbery the court commits no error in telling the jury that if this was so it was murder in the first degree, and that it was their duty to so find, if he further says “I do not intend, by saying this to take away from you or to interfere with the right which you have under the law to fix the degree.”

      Criminal law — Murder—Reasonable doubt — Charge.
    3. On the trial of an indictment for murder, two points on the subject of reasonable doubt were presented, in one of which the court was asked to say that if there was a reasonable doubt as to any material circumstance sought to be proved by the commonwealth as a link in the chain of proof, the verdict should be not guilty, and in the other that unless each fact proved by the commonwealth was consistent with the prisoner’s guilt, etc., there should be acquittal. In affirming the points the court called 'attention to the words, “material circumstance” used in the first and in answering the second said that the fact must be a material fact that was a necessary link in the chain which made out the commonwealth’s case. ILeld, that these instructions as to reasonable doubt were without error.
    Argued Feb. 5, 1912.
    Appeal No. 4, Jan. T., 1912, by defendant, from judgment of O. & T., Lancaster Co., Sep. Sessions, 1911, No. 168, on verdict of guilty of murder in tbe first degree in case of Commonwealth v. Antonio Romezzo.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Landis, P. J.
    Tbe court charged in part as follows:
    “If, from tbe evidence, you conclude be committed tbis horrid act, then, under your oaths, you should find him guilty; and, if it was committed for the purpose of robbery, it is murder in the first degree. If, on the other hand, you are not satisfied beyond a reasonable doubt, of his guilt, then it is your duty to render a verdict of not guilty. In my judgment, there is no middle course.”
    “From this testimony, if it is believed by the jury, sufficient facts are elucidated to enable you to conclude that Scarafino lost his life by violence at the hands of some one, and if you so conclude, the next inquiry which will arise is, whether or not the defendant perpetrated the deed.”
    “You have the right to say that the defendant is guilty of either murder in the first or murder in the second degree; but, if you find that‘there was wilful, deliberate and premeditated murder, with malice, or that the crime was perpetrated by lying in wait, or in the commission of, or attempt to commit, robbery or burglary, then there is no room for murder in the second degree, for the law says it is murder in the first degree, and you should so find. You are not a pardon board; you have only to decide the case according to the law and the evidence. I do not intend, by saying this, to take away from you or interfere with the right which you have under the law to fix the degree; but I deem it proper to point out to you what I believe is the measure of your duty.”
    Defendants presented these points:
    “In criminal cases it is incumbent upon the Commonwealth to prove the defendant guilty beyond a reasonable doubt, and if the jury entertain a reasonable doubt as to which of two degrees of a crime a defendant is guilty, the defendant is entitled to the benefit of such doubt, and can be convicted of the lower offense only.
    “Answer: We answer this point by saying that it is upon the Commonwealth to prove the defendant guilty beyond a reasonable doubt. We also say that, under the law, the jury have the power to fix the degree, if they find the defendant guilty. But we also say that, if the defendant killed Scarafino with malice aforethought, or in the commission of a robbery then they should, if they convict him at all, find him guilty of murder in the first degree.”
    “If the jury has reasonable doubt as to any material circumstance sought to be proved by the Commonwealth as a link in the chain of proof, their verdict must be not guilty, because they cannot be satisfied beyond all reasonable doubt of their conclusion if such doubt exists as to any of the steps by which they arrived at that conclusion.
    “Answer: That point is affirmed; but we impress upon you the fact that it must be a material circumstance without which no reasonable conviction can be had.”
    “Unless each fact proved by the Commonwealth is consistent with the fact that the prisoner committed the offense charged and with the other facts established, and unless such facts are inconsistent with the conclusion that the deceased died in some other way than at the hands of the defendant, the verdict must be not guilty.
    “Answer: That point is affirmed. We say, it must be a material fact, one which is a necessary link in the chain which makes out the Commonwealth’s case.”
    Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (2-7) above instructions quoting them.

      Spencer G. Nauman and Benjamin O. Atlee, for appellant.
    Cited as to the instructions as to degree: Com. v. Fellows, 212 Pa. 297; Lane v. Com., 59 Pa. 371; Rhodes v. Com., 48 Pa. 396; Com. v. Sutton, 205 Pa. 605; Com. v. Chapler, 228 Pa. 630; Adams v. State, 29 Ohio 412; Com. v. Frucci, 216 Pa. 84.
    Cited as to reasonable doubt: Com. v. Colandro, 231 Pa. 343.

      John M. Groff, district attorney, with him Charles W. Eaby, assistant district attorney, for appellee.
    Cited as to degree: Com. v. Cunningham, 232 Pa. 609; McClain v. Com. 110 Pa. 263; Com. v. Pacito, 229 Pa. 328; Com. v. Kovovic, 209 Pa. 465; Com. v. Frucci, 216 Pa. 84; Com. v. Orr, 138 Pa. 276; Knee v. McDowell, 25 Pa. Super. Ct. 641; Commonwealth v. Meads, 29 Pa. Super. Ct. 321.
    Cited as to reasonable doubt: Com. v. Drum. 58 Pa. 9; Com. v. Conroy, 207 Pa. 212; Kilpatrick v. Com., 31 Pa. 198; Shovlin v. Com., 106 Pa. 369.
    March 18, 1912:
   Opinion by

Mr. Chief Justice Fell,

Tho assignments of error are to the general charge and to the answers to points. We find nothing in them to give rise to even a debatable question. The murder of which the prisoner was convicted was committed in the perpetration of robbery. Of this there was no doubt under the testimony and no question in relation to it was raised at the trial. In the instructions complained of the jury were told that if the murder was committed for the purpose of robbery, it was murder of the first degree and that it was their duty to so find. This plain statement of the law was accompanied with the distinct instruction that it was the right of the jury to ascertain the degree. Nothing of the nature of a direction to find a verdict of the first degree or of a withdrawal of the question of the degree from the jury appears in the charge. The expression of opinion by the learned trial judge that there was no middle ground and no room for a finding of the second degree was followed by the statement, “I do not intend, by saying this, to take away from you or to interfere with the right which you have under the law to fix the degree; but I deem it proper to point out to you what I believe is the measure of your duty.”

In Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; Commonwealth v. Fellows, 212 Pa. 297, and Commonwealth v. Frucci, 216 Pa. 84, relied on by the appellant, there was either a peremptory instruction as to the degree or what amounted to the same thing, the withdrawal of its ascertainment from the jury. These cases and all of our cases recognize the right of the trial judge to express his opinion of the duty of the jury on the facts, leaving them always free to act. The question of the degree of murder goes to the jury with the question of guilt, and a peremptory instruction which withdraws it is erroneous. But it is always within the province of the court to point out the duty of the jury under the law and the evidence if they are left free to act. Commonwealth v. Sutton, 205 Pa. 605; Commonwealth v. Kovovic, 209 Pa. 465.

The instruction in the charge in relation to the reasonable doubt that should work an acquittal was admittedly full and accurate. Two points on the subject were presented, in one of which the court was asked to say that if there was a reasonable doubt as to any material circumstance sought to be proved by the Commonwealth as a link in the chain of proof, the verdict should be not guilty, and in the other that unless each fact proved by the Commonwealth was consistent with the prisoner’s guilt, etc., there should be an acquittal. In affirming the points the court called attention to the words “material circumstances” used in the first and in answering the second said that the fact must be a material fact that was a necessary link in the chain which made out the Commonwealth’s case. One was answered in the exact language in which it was put, attention being called to its essential feature and in the other the qualification was proper. We find no merit in any of the assignments.

The judgment is affirmed and it is directed that the record be remitted for the purpose of execution.


author: Me. Justice Mesteezat,

text:
    Wilson, Appellant v. Pericat.

      Evidence — Burden of proof — Principal and agent — Sales.
    In a suit by a grower of orchid blooms against her head gardener to recover the value of the blooms which she alleged he had sold for her account in his own name to a dealer, where the defendant claims that some of the blooms which he had sold to the dealer were of his own growth, and that the others had been given to him by the plaintiff, and the plaintiff offers in evidence the account of the dealer, conceded to be correct, showing all the blooms which the dealer had purchased from the defendant, the burden of proof is upon the defendant to show what blooms in the account were sold by him as his own property.
    Argued Feb. 5,1912.
    Appeal No. 66, Jan. T., 1910, by plaintiff from judgment of C. P. Del. Co., March T., 1906, No. 85, on verdict for defendant in case of Edna Wilson v. Alphonse Pericat.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Mosohzisker, JJ.
    Reversed.
    Capias ad respondendum trespass to recover for money had and received. Before Broom all, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    “Pausing at that point, if some of these orchid blooms belonged to Mr. Pericat himself either flowering upon his own plants in this green-house or in the spring of 1903, March or April or after that, any of these orchid blooms came from his green-house, then, of course, they were his and he had a right to sell them and appropriate the proceeds. Hence I say if all of the blooms which Mr. Pennock sold belonged to the plaintiff that part of her case would be fully made out; but just to the extent that she leaves that question open just to that extent there is derogation from her proof. I don’t recall any evidence as to the quantity of these blooms which Mr. Pericat himself may have owned. Her contention is, however, that all of the blooms which the defendant delivered to Mr. Pennock for sale were hers. That is her contention. If there is any evidence in the case by which you can segregate them, the blooms which Mr. Pennock sold, segregate the plaintiff’s from those which belonged to Mr. Pericat, that should be done. I may say, however, that so far as the blooms which may have belonged and for which Mr. Pericat is concerned, the quantity does not appear. My impression of the matter is that the quantity was proportionately small as contrasted with the aggregate amount. Whatever that amount of blooms, however, which you conclude belonged to the plaintiff which Mr. Pennock sold — whatever that amount is, it next becomes her duty under the stress of holding the laboring oar to prove their value. Now that she essays to do by proving what Mr. Pennock sold them for.” (1)
    “If you stopped at that point and the contention didn’t go any further, then she would be entitled to a verdict for $1252.45 plus interest say from May, 1903, the close of the transaction, May, 1903, a matter approaching six years ago, she would be entitled to a verdict for that sum, subject as I again repeat to whatever you conclude to determine from the evidence as to how much of these blooms belonged to Mr. Pericat. Therefore, subject as I have said she has at this point filled the requirement which the law imposes upon her when she undertakes to shoulder the burden of proof which rests upon her.” (2)
    “A correct account of these blooms sold by Mr. Pennock might be to charge Mr. Pericat with the amount of money he received from Mr. Pennock, $1265.60, from which I assumed should be' deducted whatever expenses Mr. Pericat was at in obtaining this $1,265.60, on the other side of the account, whatever that amount would be after eliminating, if there should be any, eliminating any of his own blooms, and after deducting Ms expenses, and the balance might be shown by the account.” (3)
    “Now, if the difference between $1085.18 ,and $1265.60 is made up of what Mrs. Wilson gave him and of what his expenses were, and whatever part you think was derived from his own blooms, then that is a correct account. But you cannot solve a problem in algebra if there are too many unknown quantities which you have no means of ascertaining or fixing. So that whatever that account in your judgment has lost, give it your consideration. I may say that so far as my impressions are concerned I fail to see that much can be. gathered from it.” (4)
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (1-4) above instructions, quoting them.

      Reynolds D. Brown and V. Gilpin Robinson, with them Charles F. DaCosta, for appellant.

      O. B. Dickinson, for appellee.
    March 18, 1912:
   Opinion by

Me. Justice Mesteezat,

We think the learned court below erred in placing the burden on the plaintiff of showing what part of the orchid blooms sold by Pennock belonged to her and for which she was entitled to have an accounting. The defendant had been for several years the head gardener of the plaintiff and delivered the blooms to Pennock to be sold in the plaintiff’s name. The defendant failed to account for the blooms sold, and the plaintiff brought this action. She makes two claims: one of $1160.99 for blooms sold for which there was no accounting by the defendant, and another for a balance of $265.60 due for blooms authorized by her to be sold and for which there was a partial accounting. The defense to the first claim was that the blooms were a gift by plaintiff to the defendant. As to the second claim, the defendant admitted that the sales were made by the authority of the plaintiff and on her account, and that there was a balance of about $86 due the plaintiff, but alleged that the plaintiff refused to accept the amount and gave it to the defendant. The plaintiff denied that she had given the defendant the blooms for which there had been no accounting, and alleged that there was a balance of $265 due her on the blooms she authorized the defendant to sell.

The learned court instructed the jury that the burden was upon the plaintiff to show that all the blooms sold by the defendant belonged to her and that no part of them belonged to the defendant or came from his greenhouse. The plaintiff offered in evidence Pennock’s account with the defendant which showed the several items of blooms sold by Pennock for the defendant and the dates on which the sales were made. This statement was conceded to be correct. If nothing else had appeared in the evidence the defendant would have been required to account to the plaintiff for the balance due on the sales shown by that account. He had partially accounted to the plaintiff for the blooms sold by her orders. As to the balance alleged to be due the plaintiff on this claim, his defense was twofold: that part of the blooms came from his own green-house and that the plaintiff had made a gift to him of the others. Under these circumstances, the burden was clearly upon him to show what blooms of those sold belonged to him. He was the employee and the agent of the plaintiff in making the sales through Pennock. He knew or should have known what blooms came from Mrs. Wilson’s green-house and what came from his own green-house. It was his duty to keep an accurate account. They were sold by the defendant in his own name. There is nothing in the Pennock account showing the number of blooms which belonged to the plaintiff and which belonged to the defendant. The evidence of the fact is entirely within the defendant’s knowledge. The plaintiff has no way of establishing the exact number of blooms which were taken from her green-house and sold by Pennock. It is conceded that substantially all of the blooms came from Mrs. Wilson’s green-house, but there is no evidence which will segregate those from the blooms if any, which were sold from the defendant’s greenhouse. While it was incumbent upon the plaintiff to show the number of blooms belonging to her which the defendant sold, she did so by producing the Pennock account, and the burden was then shifted to the defendant of showing the number of blooms of his own which Pennock sold, in view of the defense that he was the owner of part of the blooms sold by Pennock. Having set up as a partial defense that some of the blooms sold belonged to him, he was required to establish the fact to the satisfaction of the jury. •

The learned court below charged that “if all of the blooms which Mr. Pennock sold belonged to the plaintiff that part of her case would be fully made out; but just to the extent that she leaves that question open just to that extent there is derogation from her proof. I don’t recall any evidence as to the quantity of these blooms which Mr. Pericat (defendant) himself may have owned.” Under these instructions the jury would have been warranted in finding that all the blooms claimed by the plaintiff came from the defendant’s green-house and such a finding would have defeated a recovery by the plaintiff. Of course, if the jury had found that all the blooms not accounted for were given to the defendant, the instructions were harmless, but the jury may have found under the charge that none of those -blooms were given to the defendant but that he owned them because the plaintiff failed to show that they belonged to her. The jury should have been told that, in view of the evidence then before them, it was incumbent upon the defendant to show what blooms, sold by him and contained in the Pennock account, came from his green-house or belonged to Mm, and failing to do so the plaintiff was entitled to recover for the quantity of blooms shown by the Pennock account unless, as alleged, they were given to the defendant by the plaintiff.

The first, second, third and fourth assignments of error must be sustained. The questions raised by the other assignments need not be considered in view of the fact that the case goes back for another trial.

The judgment is reversed with a venire facias de novo.


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

      Railroads — Negligence—Sparks—Case for jury — Damages.
    1. In an action against a railroad company to recover damages for the loss of crops and growing timber alleged to have been caused by sparks tbe case is for tbe jury, where there is testimony tending to show that tbe fire was caused by cinders of an unusual size and so large that they could not have escaped from tbe smoke stack of a properly equipped locomotive. In such a case if there was evidence that tbe plaintiff did not make a reasonable effort to extinguish tbe fire and save bis property, tbe question of his negligence is for tbe jury.
    2. In an action against a railroad company to recover damages for tbe loss of growing timber by fire from sparks, tbe measure of damages is not tbe value of the wood destroyed, but tbe injury to tbe plaintiff’s land as a whole by tbe destruction of tbe timber, if it appears that much of tbe timber was growing and not marketable and bad no value as wood.
    Argued Feb. 5,1912.
    Appeal No. 85, Jan. T., 1911, by defendant from judgment of C. P. Delaware Co., Sep. T., 1907, No. 223, on verdict for plaintiff in case of Edward T. Bullock v. Baltimore & Ohio Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.

      Trespass to recover for the loss of crops and growing timber. Before Johnson, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $1632.40. Defendant appealed.

      Errors assigned were various rulings on evidence and instructions.

      Kingsley Montgomery, for appellant.

      A. B. Geary, for appellee.
    March 18, 1912:
   Per Curiam,

This action was to recover damages for the loss of crops and growing timber by fire alleged to have been caused by the defendant’s negligence. There was testimony tending to show that the fire was caused by cinders of an unusual size and so large that they could not have escaped from the smoke stack of a properly equipped locomotive. The question thus raised together with that of the plaintiff’s negligence in not making a reasonable effort to extinguish the fire and save the property from destruction was clearly for the jury and were properly submitted.

The measure of damages was not the value of the wood destroyed, but the injury to the farm as a whole by the destruction of the timber. Much of the timber was young and not marketable and had no value as wood. It was growing into value and added to the value of the land it covered, and the whole of it added to the value of the farm of which it was a part. The ruling on the subject was in accordance with the opinion in Mahaffey v. Railroad Co., 229 Pa. 285.

The judgment is affirmed.


text:
    Masino, Appellant, v. Farmers & Mechanics Mutual Insurance Assn.

      Insurance — Fire Insurance — Notice of loss.

    Where a policy of fire insurance in a mutual company provides that in case of a loss by fire the insured shall give notice in writing within thirty days to the president or secretary of the company, who shall immediately appoint a committee from the board of managers to examine and assess the damages sustained, and it appears that such notice was not given after a fire, the insured cannot recover for the loss sustained by him, unless he proves a waiver of notice by the insurance company.
    Argued Feb. 5, 1912.
    Appeal, No. 93, Jan. T., 1911, by plaintiffs from order of C. P. Bucks Co., Nov. T., 1909, No. 6, refusing to take off non-suit in case of Anthony Masino et al. v. Farmers’ & Mechanics’ Mut. Ins. Assn, of Bucks County.
    Before Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit upon a policy of fire insurance. Before Stout, P. J.
    At the trial the court entered a compulsory non-suit which it subsequently refused to take off.

      Error assigned, was refusal to take off non-suit

      John L. Dubois, for appellant.

      Hugh B. Eastburn, for appellee.
    March 18, 1912:
   Per Curiam,

The by-laws of the appellee were printed on and formed part of its policy of insurance held by the appellants. Article 19 provides: “In case of a loss or damage by fire to any property insured by this association, notice shall be given in writing, within thirty days to the president or secretary, who shall immediately appoint a committee from the board of managers, which committee shall examine and assess the whole amount of damage sustained, and report the same to the board of managers within two weeks from the time of receiving information of their appointment.” The notice required by this by-law was not given to the insurance company after the property of the appellants was burned, and, with no proof of waiver of it by the appellee, the court below properly held that the appellants had no right of action.

Judgment affirmed.