author: Henderson, J.,

text:
    Reynolds v. Maryland Casualty Company of Baltimore, Appellant.

      Insurance — Health insurance — Notice.
    Where a policy of health insurance requires that “immediate written notice” of the disease or illness shall be given to the company, a notice given within a reasonable time under the circumstances .of the particular case will satisfy the requirement of the policy. What is a reasonable time under the special facts is a question for the jury, unless the delay has been so great that the court may with confidence decide the question as one of law.
    Where a health policy of insurance provides that “affirmative proof of cause and duration of disability must be furnished to the company within ten days from the termination of the disability,” notice given during disability is in time.
    A condition in a policy of insurance being the language of the company must, if there be any ambiguity in it, be taken most strongly against them; if reasonably susceptible of two interpretations it is to be construed in favor of the assured so as not to defeat, without plain necessity, his claim to indemnity which it was his object to secure.

      Evidence — Mailing letter — Postage—Presumption.
    Where a person testifies that he mailed a letter by depositing it in a street letter box, it will be presumed, in the absence of anything to the contrary that the letter was duly stamped.
    Argued Jan. 12, 1906.
    Appeal, No. 32, Jan. T., 1906, by defendant, from judgment of C. P. Lackawanna Co., May T., 1904, No. 346, on verdict for plaintiff in case of John Reynolds v. Maryland Casualty Company of Baltimore, Md.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head, and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of health insurance. Before Kelly, J.
    The facts are stated in the opinion of the Superior Court.
    Yerdict and judgment for plaintiff for $234.44. Defendant appealed.

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

      Robert J. Murray and C. A. Van Wormer, for appellant.
    If the insured fails in his efforts, or neglects to comply with the whole of the agreements, the contract is at an end by force of its own terms: Girard Fire, etc., Ins. Co. v. Hebard, 95 Pa. 45.
    March 12, 1906:
    The evidence must show that the.letter was not only properly addressed, but that the postage was prepaid: Whitmore v. Ins. Co., 148 Pa. 405; Neubert v. Armstrong Water Co., 211 Pa. 582.
    It was the duty of the plaintiff to give timely and reasonable notice to the defendant of his illness: Dunshee v. Travelers’ Ins. Co., 25 Pa. Superior Ct. 559; McSparran v. Ins. Co., 193 Pa. 184; Water Co. v. Ephrata Boro., 20 Pa. Superior Ct. 149.

      M. J. Martin, with him James E. Watkins, for appellee.—
    The word “ mail ”as applied to a letter means that the letter was properly prepared for transmission by the servants of the postal department and that it was put in the custody of the officers charged with the duty of forwarding letters : Pier v. Heinrichshoffen, 67 Mo. 163; Bank v. DeGroot, 43 N. Y. Superior Ct. 341; Susquehanna Mut. Fire Ins. Co. v. Toy Co., 97 Pa. 424; Farmers’ Nat. Bank v. Marshall, 9 Pa. Superior Ct. 621; Folsom v. Cook, 115 Pa. 539.
    Immediate notice is notice within a reasonable time: Lyon v. Railway Passenger Assurance Co., 46 Iowa, 631; People’s Accident Assn. v. Smith, 126 Pa. 317.
    When an insurance company tenders a policy to a party seeking to be insured, and uses in'the policy ambiguous words, these words will be held to have the meaning most favorable to the insured, as the presumption is that on this construction he took the policy, and as the company could have avoided the difficulty by being more specific: Allen v. Ins. Co., 85 N. Y. 473; Western Ins. Co. v. Cropper, 32 Pa. 351; White v. Smith, 33 Pa. 186; Wilson v. Ins. Co., 4 R. I. 141; Bartlett v. Ins. Co., 46 Maine, 500; Bowman v. Ins. Co., 27 Mo. 152; Ins. Co. v. Slaughter, 79 U. S. 404; Life & Acc. Ins. Co. v. Burroughs, 69 Pa. 43; Burkhard v. Travelers’ Ins. Co., 102 Pa. 262-266.
   Opinion by

Henderson, J.,

The appellant denies the right of the plaintiff to recover in this action for two reasons : (1) That he did not comply with the requirement of the policy that “ immediate written notice must be given to the company at Baltimore or to the agent countersigning the policy of any disease or illness for which a claim is tq be made with full particulars therefor and full name and address of insured;” (2) That he did not comply with the provision of the policy that “ affirmative proof of cause and duration of disability must also be furnished to the company within ten days from the termination of the disability.” The plaintiff became ill with appendicitis on October 3, 1903. He was taken to the hospital the next day and a written notice to the defendant of his sickness was sent by mail by his wife as claimed by the plaintiff on October 9, 1903. This is said not to have been “ immediate ” notice within the meaning of the policy. Undoubtedly the obligation of the contract required the insured to give prompt notice of his illness but it cannot be held that the word “ immediate ” is to be understood in its strict sense. The parties must have known that it would ordinarily be impossible to give such notice without the lapse of an appreciable period of time. A sudden illness of the insured might disable him from giving the required notice for a considerable period. The insurer did not expect the impossible. What the parties contracted for was that notice should be given within a reasonable time under the circumstances of the particular case.

This is the fair and practical interpretation of their agreement and probably the one which they gave to it at the time it was entered into, and what is a reasonable time under the special facts is a question for the jury unless the delay has been so great that the court may with confidence decide the question as one of law: People’s Accident Association v. Smith, 126 Pa. 317; Lyon v. Assurance Co., 46 Iowa, 631. The evidence shows that the insured was seriously ill and was subjected to a surgical operation on October 11. His wife made two or three efforts to notify the local agent of the company and failing in that sent the notice as she claimed to the company in Baltimore. The court submitted to the jury the question whether the plaintiff acted with due diligence in giving the notice and there was evidence upon this point from which it might be found that the notice was sent with reasonable promptness, taking into' consideration the condition of the insured and the time when he learned that his condition was serious and that an operation would be necessary. It is alleged, however, that there was not sufficient evidence to raise a presumption of the receipt of the notice by the company because it did not appear from the plaintiff’s evidence that the letter sent had been properly stamped before it was deposited. The witness testified that she wrote' a letter and addressed it to the company at Baltimore, Maryland, informing it of the condition of her husband; that this letter was sent on October 9, and that she mailed it in a street letter box near her residence. No objection was made to her statement that she mailed the letter and that she deposited it in a street post office box. The popular understanding of the word “ mailed ” as applied to a letter is that it was duly stamped and placed under the control of the officers of the postal department whose duty it is to dispatch postal matter ; and this is the meaning which should be attached to it in this case under the testimony. In the absence of evidence to the contrary or any inquiry as to the particular point, the witness might well be understood to mean that the letter was mailed in conformity with the requirements of the postal service. If the appellant’s counsel did not so understand it, it would have been easy to have interrogated the witness as to the fact: Oregon Steamship Co. v. Otis, 100 N. Y. 446 (3 N. E. Repr. 485); Pier v. Heinrichshoffen, 67 Mo. 163. The question was clearly and fairly submitted to the jury and the verdict shows that the prima facie proof of notice was not successfully rebutted.

The defendant’s second contention is that the insurance was against total disability; that the contract provided for notice to the company within ten days from the “ termination of the disability; ” that this has reference to total disability; that the total disability terminated on October 3, 1903 ; that proof of the cause and duration of the disability was not given until twenty-one days thereafter and that because of the failure of the insured to give notice within the stipulated time the company is released from liability. It is not pretended that the plaintiff had recovered his health on October 24, and there is evidence from which the jury might well have found that he was totally disabled for a week or ten days thereafter, for while it was stated by him that he rode to his place of business on the fourth, fifth and seventh of that month and remained a little while at his desk it also appears that he overestimated his strength and was confined to his house for a week thereafter unable to go to work. In conceding that his total disability terminated on the twenty-fourth he allowed to the defendant more than other parts of his evidence would have entitled it to. The learned trial judge instructed the jury that if the notice was given during his disability it was in time and as this is in harmony with the language of the policy relating to the required notice we think he was not in error. “ A condition in a policy of insurance being the language of the company must if there be any ambiguity in it be taken most strongly against them; if reasonably susceptible of two interpretations it is to be construed in favor of the assured so as not to defeat, without plain necessity, his claim to indemnity which it was his object to secure ” : Smith vs. Insurance Co., 103 Pa. 177. The defendant’s contract covered the illness from which the plaintiff suffered; his sickness is not disputed and we ought not to be acute in support of objections so highly technical.

The assignments of error are overruled and the judgment affirmed.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Nesbitt v. Tarbrake, Appellant.

      Statute of frauds — Parol sale — Landlord and tenant — Possession.
    A person in possession of land under a written lease from several trustees for a definite term, cannot change this status into a possession under a parol sale of the land to him by proof that he had entered into a parol agreement with an agent of the trustees, with knowledge of one of the trustees, to purchase the land and to pay a certain amount on the execution of a written agreement and the balance in installments, and as a further consideration that no back rent should be collected, and the lease be considered at an end.
    Trustees holding legal title to land can only act jointly in making deeds or agreements for the sale thereof.
    Argued Jan. 12, 1906.

    Appeal, No. 36, Jan. T., 1906, by defendant, from order of C.P. Lackawanna Co., Sept. T., 1905, No. 1,008, discharging rule to open judgment incase of Abram Nesbitt, W. L. Watson and W. A. May v. Henry Tarbrake.

      March 12, 1906:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to stay writ of habere, facias possessionem. Before Kelly, J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.
    C. H. Soper, for appellant.
    — To take a parol gift of land out of the statute of frauds, it is necessary that it should appear that the donee has made improvements which added to the permanent value of the land; and by reason of this expenditure upon such improvements, he would be prejudiced by the rescinding of the contract: Wack v. Sorber, 2 Whart. 387; McKellip v. McIlhenny, 4 Watts, 317; Harris v. Bell, 10 S. & R. 39; Dixon v. Oliver, 5 Watts, 509.

      E. N. Willard, of Willard, Warren & Knapp, for appellees.
   Opinion by

Morrison, J.,

This was a petition to stay writ of hab. fa. poss. and upon the judgment entered in pursuance of a written tenant lease of land, the legal title to which was in the plaintiffs as trustees. The lease bears date April 1, 1899, for a period of five years, reserving rent at $75.00 per year. The defendant refusing to pay the rent, judgment was regularly entered against him, in accordance with the terms of the lease, for the possession of the premises. Clearly, on its face, the judgment is sufficient to oust the defendant from the premises. What then is the reason urged why he should not surrender the premises ? It may briefly be stated thus: That on August 15, 1901, C. W. Thompson, agent for the plaintiffs, entered into an agreement with the defendant to sell him the said land for $1,500, to be paid, $200 on executing a written agreement, and balance in installments of $200 ; and a further consideration that no back rent should be collected, and it was to be considered that the lease be at an end. The defendant says he accepted the agreement and at once took possession under it, and made valuable improvements to the amount of $3,000, with the knowledge and consent of said Thompson and W. J. Lewis, then one of the trustees. The learned counsel for the defendant contends that this was such a transaction in regard to the land in question as is not avoided by the statute of frauds and perjuries. And he cites several authorities and argues that there may be such part performance of a parol contract for the sale of land as will take it out of the statute. Some of his cases are the following: McGibbeny v. Burmaster, 53 Pa. 332; Eberly v. Lehman et al., 100 Pa. 542; Wack v. Sorber, 2 Whart. 387; Harris v. Bell, 10 S. & R. 39; and several other cases.

There is no difficulty about the law in regard to such contracts. But is the contract under consideration what is claimed for it by the appellant ? The defendant was in possession of the locus in quo under a written lease from the trustees, for a definite term, reserving rent. And he seeks to change this into a possession under a parol sale of the land to him; but he does not show that the trustees jointly, either by themselves or by an agent duly authorized to contract to sell said lands, ever pretended to make a parol agreement authorizing him to go into possession of the land as a purchaser. The bargain he sets up was, confessedly, for a written agreement, and it was never executed. By reference to defendant’s petition and his counsel’s history of the case, it clearly appears that the agreement was made with one Thompson, agent for the appellees, who made the bargain with the knowledge of one of the trustees. But it is only averred that Thompson had authority to lease the land, and nowhere in the petition is there a sufficient averment that he had power to sell land for the trustees. Moreover, Thompson made no agreement that defendant could take possession of the land as a purchaser under a parol agreement. It is clearly stated in the petition and history of the case that there was to be a written agreement made, presumably, between the trustees and the defendant, but it was never executed. Therefore, the defendant is not in the position of one who goes into possession of land and makes valuable improvements under a valid parol agreement authorizing him so to do. The defendant had an oral bargain with Thompson and, perhaps, Lewis, for a written agreement of sale and purchase, and he committed the folly of going into possession, and making the improvements, without this agreement ever being executed and delivered.

It does not need the citation of authorities that trustees bolding the legal title to land, can only act jointly in making deeds or agreement for the sale thereof: Bispham on Equity, sec. 145; Lewin on Trusts, p. 257.

It does not appear that Nesbitt or Watson, two of the trustees, were ever consulted about the sale, or that they ever agreed to the cancellation of the lease. Nor does it appear that Thompson had power to cancel the lease.

We do not think the learned judge erred in refusing a rule to open the judgment, etc.

In reaching this conclusion we do not consider the record printed as an appendix to the appellee’s paper-book, because it was not in evidence, and it is not regularly before us.

The order of August 81, 1905, refusing the rule is affirmed, and the appeal is dismissed at the costs of the appellant.


text:
    Drumgoole, Appellant, v. Lyle.

      Replevin — Landlord and tenant — Act of April 19, 1901, P. L. 88.
    The Act of April 19, 1901, P. L. 88, includes writs of replevin issued by tenants against landlords in cases of seizure for rent.
    Under the Act of April 19, 1901, P. L. 88, it is not necessary for the plaintiff in replevin to anticipate in his statement of claim the defense'which may be set up, and traverse it. All that the plaintiff is required to do is to set forth clearly and fully his title with an averment of wrongful dispossession.
    Argued Dec. 14, 1905.
    Appeal, No. 229, Oct. T., 1905, by plaintiff, from order of O. P. No. 5, Phila. Co., Sept. T., 1904, No. 3,956, sustaining demurrer to statement in case of Joseph P. Drumgoole v. Franklin L. Lyle, Trustee in Bankruptcy, and Otto Zimmerman, Constable.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Replevin for furniture.
    The plaintiff’s amended statement after setting forth the articles seized continued as follows:

      “ On the said November 18,1904, Franklin L. Lyle and Otto Zimmerman, defendants, entered upon the said premises, 942 Belmont avenue, and wrongfully seized and took out of plaintiff’s possession and into their own possession all of the said articles mentioned in this statement, and retained the same until service had been made of the writ of replevin issued in this case.
    “ So far as the plaintiff has been able to understand defendants’ conduct, as above stated, they claim to justify the same on the ground that the said Lyle was owner of the premises named, plaintiff was their lessee under a certain lease by the said Lyle to him of the said premises, of which a copy is attached hereto as exhibit4 A,’ and that two monthly installments of rent, in $25.00 each, were due and in arrear under the same at the date of the said entry and taking.
    44 If this be actually their claim, they are not justified thereby in their trespass, because, though the said Lyle was owner of the said premises, and the plaintiff was lessee of the premises, the whole amount of the said supposed arrears of rent was in fact paid by plaintiff November 2,1904, to Sarah W. Murphey, in part satisfaction of a certain installment of ground rent in the amount of $62.50, due to her October 1,1904, and in arrear, out of same premises, and subject to which ground rent the said Lyle held title to the said premises. . . . All of the contents of the said premises were subject to be distrained upon by said Sarah W. Murphey for arrears of ground rent at any time during the term for which, under the provisions of the said lease, this plaintiff was entitled to continue as lessee of the said premises, or said owner of ground rent might have re-entered for nonpayment of the said installment, or she might have resorted to the other forms of redress in such case.
    Plaintiff is injured by the seizure of the said property belonging to him and bailed with and intrusted to him by the owners thereof in the sum of $200, for collection whereof and recovery of possession of the said property enumerated in the foregoing list plaintiff brings this suit.
    The defendant demurred to the statement, alleging the following reasons:
    1. The statement of demand is in violation of the provisions of section 4 of the Act of April 19, 1901, P. L. 88, which requires the plaintiff to “ file a declaration, verified by oath, which shall consist of a concise statement of his demand, setting forth the facts upon which his title to the goods and chattels is based.”
    March 12, 1906:
    2. The statement of demand is argumentative.
    3. It may be inferred from the statement of demand that the chattels sought to be recovered in this action were distrained for rent, without giving any facts or legal reasons showing the invalidity of said distraint.
    4. The plaintiff seeks to escape liability for the payment of rent by alleging that he paid the amount thereof to a third person who was the owner of a ground rent issuing out of the demised premises, which, in law, does not excuse the plaintiff from payment of the rent due and distrained for.
    The court sustained the demurrer.

      Error assigned was order sustaining the demurrer.

      Thomas E. McCaffrey and E. Spencer Miller, for appellant.
    —The form of proceeding defined by the act of 1901, does not apply to a replevin: Crawford v. Fulmer, 31 Pa. C. C. Rep. 219; Williams v. Rutherford, 14 Pa. Dist. Rep. 282; Rosenfeld v. Goldberg, 14 Pa. Dist. Rep. 381.
    The proceeding should have been under the act of 1772: Williams v. Rutherford, 14 Pa. Dist. Rep. 282; Rosenfeld v. Goldberg, 14 Pa. Dist. Rep. 381; Crawford v. Fulmer, 31 Pa. C. C. Rep. 219.

      Emanuel Furth, with him Jacob Singer, for appellees.
    — In a replevin on a distress for rent, it is proper and appropriate to proceed under the replevin act of April 19, 1901: Crawford v. Fulmer, 31 Pa. C. C. Rep. 219.
    The replevin act of April 19,1901, clearly contemplates that the statement of demand and the affidavit of defense should present the issue upon which the cause should be tried.
   Opinion by

Henderson, J.,

Replevin is the appropriate action whenever a person claims goods in the possession of another, without regard to the manner in which the possession was obtained. The question is one of property, either general or special, and right of possession. The act of March 21, 1772, 1 Sm. L. 870, provided a new practice to work out the rights of landlords and tenants in the case of a replevin after a distress for rent, but this does not confer upon the court the power as to the action itself. The Act of April 19, 1901, P. L. 88, does not except from its operation any action of replevin distinguishable from others because of the particular facts out of which it arises. None of its sections suggests a substantial implication that it was not intended to apply to writs issued by tenants against landlords in cases of seizure for rent. The title; the provisions for giving a bond before the writ goes out; for the service; for the admission of intervening parties ; for the filing of a declaration under oath and an affidavit of defense clearly indicate that the statute was intended to provide a convenient practice under which the righfs of all parties interested in the property might be worked out. It is provided by the sixth section that the declaration and affidavit of defense shall constitute the issue under which the question of title and right of possession as between all the parties in interest shall be determined by a jury. The same section confers upon the court the power to take a conditional verdict where any party is found to have only a lien upon the goods and to enforce the same in accordance with equitable principles. The twelfth section authorizes courts of common pleas to make rules governing the proceedings under the act. These provisions are broad enough to cover actions between tenant and landlord and make possible an expeditious and practical determination of issues raised by the pleadings. If the mode of procedure and logical order of the introduction of the evidence be regarded, it will not be found to be more difficult to determine the rights of the parties in an action of replevin after a distress for rent than in a similar action where a bailment of the property is involved.

What, then, must the plaintiff set forth and what is the order of procedure ? The statute requires that the declaration shall consist of a concise statement of the plaintiff’s demand, setting forth the facts on which his title to the goods and chattels is based. This has evident reference to the facts relating to his acquisition of the property and conditions which entitle him to its possession. Possession usually follows title and an affirmation of absolute ownership or a qualified property with the circumstances of such qualified proprietorship would ordinarily be sufficient to present a prima facie case in favor of the plaintiff. If the plaintiff’s title be clearly and fully set forth with an averment of wrongful dispossession the defendant must meet this prima facie showing by setting forth in his affidavit of defense facts sufficient to justify his retention of the property. This is not only the logical method of forming an issue and of developing the grounds upon which a verdict must be based but it is the express requirement of the act. Within fifteen days after the filing of the declaration the defendant must file an affidavit of defense setting up the facts, denying the plaintiff’s title and showing his own title. The burden is placed upon him of showing either that the ownership set up by the plaintiff does not exist or that if the plaintiff be the owner that he is nevertheless not entitled to possession by reason of a lien or other facts sufficient to justify the defendant’s possession. It is not necessary that the plaintiff anticipate the defense which may be set up and traverse it; to do so would tend to confusion and reverse the logical order of proof. The plaintiff may not, and is not bound to, know what justification will be presented by the defendant. If he set forth an absolute or qualified property and the facts upon which his title is based, the defendant must reply by averment of matters sufficient to establish his title or to justify his possession. An issue is thus made up under which the court and jury will determine the rights of the parties. If the plaintiff in his declaration suggest the reason for the defendant’s course of conduct in taking the property the order of proof is not thereby changed. He has gone further than the exigency of the situation required and it is not his duty to reply to the position which he believes the defendant will assume. By so doing the declaration would become an affidavit of defense to an affidavit of defense and the procedure prescribed by the act of 1901 would be reversed. The plaintiff has not admitted in his statement that the seizure was a distraint for rent. There is merely the averment that, so far as the plaintiff has been able to understand, the defendants justify their action on the ground that the plaintiff was a tenant and there was rent in arrear. The assumption of the demurrer that the proceeding was a distress for rent does not bring the fact of a seizure for rent into the plaintiff’s statement; nor can the sufficiency of the statement be thus attacked. There was nothing in the prsecipe or writ to show that the defendants were proceeding on a seizure for rent nor do the references to the acts of the defendants in the statement and amended statement amount to an assertion that the defendants had distrained the goods. They are at most expressions of surmise or belief that the defendants claim to have so acted. If it be conceded that the statement originally filed was defective in that it did not set forth the title under which the plaintiff claimed that objection was met in the amended statement where the title and the circumstances under which the property was held by the plaintiff were sufficiently set forth. Inasmuch, then, as a good title was averred and a wrongful seizure set forth, the plaintiff was entitled to an affidavit of defense presenting facts sufficient in law to entitle the defendant to a retention of the goods.

This conclusion disposes of the case without a consideration of the effect of a payment by the plaintiff on the ground rent charge.

The judgment is reversed, the demurrer is overruled and a procedendo awarded.


text:
    Rittenhouse’s Insolvent Estate.

      Bankruptcy — Insolvency—Wage earners — Farmers—Act of congress of July 1, 1898 — Act of Pennsylvania, June 4, 1901, P. L. 404.

    The insolvency Act oí June 4, 1901, P. Ij. 404, is not suspended by the federal bankrupt act of July 1, 1898, as to wage earners and persons engaged chiefly in farming or the tillage of the soil.
    Where the property of a farmer has been sold by the sheriff, and thereafter insolvency proceedings have been instituted against the defendant in the execution under the Act of June 4, 1901, P. L. 404, the court in making an order directing the sheriff to pay over the proceeds of the sale to the receiver of the insolvent, cannot at the same time direct that the execution and all legal proceedings thereon be vacated and set aside.
    Argued Jan. 8, 1906.
    Appeal, No. 47, Jan. T., 1906, by M. H. Rittenhouse et al., from order of C. P. Columbia Co., Sept. T., 1904, No. 5, directing sheriff; to pay over proceeds of sale In re Insolvent Estate of H. F. Rittenhouse.
    Before Rice,P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Decree modified.
    Demurrer to petition for order on sheriff.
    The petition was as follows:
    The petition of Frank Ikeler, receiver of the estate of H. F. Rittenhouse, an insolvent, respectfully represents :
    That prior to the appointment of your petitioner as receiver of the estate of the above mentioned insolvent, the said H. F. Rittenhouse confessed two certain judgments to H. Burket and M. H. Rittenhouse, respectfully, which were entered of record in the above named court to Nos. 92 and 93 of December Term, 1904.
    That writs of fieri facias were duly issued upon said judgments to Nos. 34 and 35 of December Term, 1904, and the personal property of the defendant levied upon and sold by the sheriff of said county, on October 25, 1904, for the sum of $550.
    That the proceeds of said sale still remain in the hands of the sheriff, and that no return has been made of the aforesaid writs of fi. fa.
    Wherefore, your petitioner prays the court to make a decree vacating and setting aside the above mentioned writs of execution, and all legal proceedings had thereon, and directing that the proceeds of said sale now in the hands of the sheriff of Columbia county shall be forthwith paid to your petitioner as receiver aforesaid.
    The demurrer was as follows :
    1. Your respondents appear, and, submitting themselves to the court, allege that they ought not to be required to answer the said petition because it appears from the reading of the petition that the petitioner is not entitled to the relief prayed for.
    2. The Pennsylvania act of June 4, 1901, under which the petitioner’s application is made, relating to insolvency, is suspended by reason of the existence of the federal bankrupt act of July 1, 1898, and does not become operative as to the persons and subjects to which the federal act applies.

      March 12, 1906:
    Your respondents therefore pray that the petition may be dismissed at the costs of the petitioner.
    The court made the following order :
    And now, July 27, 1905, after hearing and argument upon. the above mentioned demurrer, and in accordance with the order of court filed June 5, 1905, judgment is entered upon said demurrer in favor of the petitioner, Frank Ikeler, receiver, and said demurrer is overruled; and it is further ordered and directed that the writs of fi. fa. numbered 84 and 35, December Term, 1904, in the court of common pleas of Columbia county, issued upon judgments of H. Burket, and M. H. Rittenhouse against H. F. Rittenhouse, be vacated and set. aside, together with all legal proceedings had thereon; and it is further ordered that W. W. Black, sheriff of Columbia county, forthwith pay to Frank Ikeler, receiver, the proceeds of the. sheriff’s sale of the personal property of the said defendant, H. F. Rittenhouse, had upon said writs, and that he make return thereof, accordingly.

      Error assigned was the action of the court.

      Charles C. Evans, for appellants.

      Ered Ikeler, with him John M. Clark, for appellee.
   Opinion by

Henderson, J.,

' We held in Citizens’ National Bank v. Gass, 29 Pa. Superior Ct. 125, that the Act of June 4, 1901, P. L. 404, was not suspended by the federal bankrupt act as to wage-earners and persons engaged chiefly in farming or the tillage of the soil, because of the exception in the 4th section of chapter 3 of the act of congress of July 1, 1898, in favor of persons in the classes named. If a person of one of the excepted classes invoke the action of the national bankrupt law the jurisdiction of the United States is exclusive ; but unless such action is instituted the act of June 4, 1901, is in force. It is only suspended as to persons who can be subjected to the operation of the act of congress. A proceeding of involuntary insolvency cannot be maintained against a wage-earner or person engaged chiefly in farming or the tillage of the soil under the latter act and there is no antagonism between the state and federal laws in regard to such insolvencies. The efficiency of the act of 1901, was declared in Musser v. Brindle, 23 Pa. Superior Ct. 37, in which case executions against an insolvent farmer were set aside on the application of the assignee. See also Charles v. Smith, 29 Pa. Superior Ct. 594. The action of the court in overruling the demurrer of the appellants was in harmony with our decisions.

The order of the court is broader, however, than the exigency of the situation requires. The executions were issued on October 13, 1904, and the personal property of the defendant was sold by the sheriff on the 25th of the same month. The petition of the receiver was not presented until January 16, 1905. There was nothing irregular about the proceedings leading up to the sheriff’s sale. The most that the petitioner was entitled to was an order for the transfer of the fund in the sheriff’s hands to him and a stay of the execution so far as it operated upon the defendant’s real estate. Manifestly an order setting aside the executions and all legal proceedings had thereon would be invalid to affect the title acquired by purchasers at the sheriff’s sale of the defendant’s personal property, for at that time no objection was made to the proceeding and the sheriff had full authority to execute his writs. It was by force of them that the money was made which the court directed the sheriff to pay to the receiver. It would be inconsistent to set aside the executions and the proceedings had thereon and at the same time to ratify the action of the sheriff by directing the payment of the money made on the writs to the petitioner.

The order of the court is therefore amended so that it shall require the sheriff of Columbia county to pay Frank Ikeler, receiver, the proceeds of the sheriff’s sale of the personal property of the defendant, H. F. Rittenhouse, less the sheriff’s costs in executing the writs, and that further proceedings on the said writs be stayed.

The decree as thus amended is affirmed.


text:
    Thornton v. Meyers, Appellant.
    March 12, 1906:

      Judgment — Opening judgment — Evidence.
    A judgment entered upon a judgment note 'will be opened where the testimony of the defendant, strongly corroborated by other witnesses, although contradicted by the plaintiff, tends to show that the defendant and the subscribing witness did not sign and subscribe as the paper represented them to have done, and that the defendant was not at the place where the plaintiff alleged the note was executed but was sick at home a considerable distance away.
    Argued Jan. 8, 1906.
    Appeal, No. 23, Jan. T., 1906, by defendant, from order of C. P. Luzerne Co., May T., 1904, No. 642, discharging rule to open judgment in case of P. M. Thornton v. Sarah M. Myers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head, and Beaver, JJ.
    Reversed.
    Rule to open judgment.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in refusing to open judgment.

      W. H. Hines, with him D. Rosenthal, for appellant.

      W. Alfred Valentine, with him P. M. Thornton, for appellee.
   Opinion by

Henderson, J.,

The obligation on which the judgment was entered in this case bears date April 25, 1904, and is for the sum of $1,200. The defendant denies that the signature attached to the note is her signature or that she ever executed the obligation or authorized any one to do so in her behalf. Her testimony is direct and positive upon that point.

Edith Lark, whose name appears as a witness to the sigpa-. ture of the obligor, testified that she did not sign the note as a witness and that she never subscribed her name as a witness to her mother’s signature at the place where it was alleged the note was executed. The defendant, her husband and her daughter, Edith, all testified that the defendant was sick during the month of April, 1904; that she was at her home in the country and that she was not in the plaintiff’s office nor in. the city of Wilkes-Barre during that month.

Evidence was also offered that after the note was filed in the prothonotary’s office it was examined by the defendant’s counsel and that at that time if did not bear the name of Edith Lark, but that when it was next seen by him her name appeared thereon as a witness. It was alleged by the defendant that she did not owe the plaintiff $1,200 at the daté of the note, or at any other time; that her only indebtedness to him was on account of a verbal promise to pay him $200 for professional services in the event that she succeeded in an action of ejectment then pending in which the plaintiff was her attorney, and that she had made payment to him on that account. It further appears from the evidence that when the counsel, now acting for her, informed the plaintiff that he was about to apply to have the judgment opened, the plaintiff said it was not necessary as only $350 was due on the judgment and that he would remit the amount in excess of that; and that soon thereafter a paper was filed by the plaintiff remitting $850 of the judgment.

The plaintiff gave evidence that the note was signed by the defendant in his office on the evening of the day of its date, that it was given to secure to him the fees to which he was entitled on account of the action of ejectment referred to. He also stated that the amount which it was understood he would charge was $200; this he explained, however, did not include compensation for his services in the Superior Court after the defendant had lost the case in the court below. It was. not claimed by him that it was their intention that the whole amount would become due to him under any circumstances. His explanation of the large amount of the note was that the defendant wanted to cover up her property to prevent creditors from securing it. In the language of the. plaintiff: “ It was never intended that $1,200 should be paid to me. The $1,200 note was given merely to cover it up. ”

The plaintiff was corroborated as to the time and place of the execution of the note by his stenographer who stated that the defendant and her daughter were at the plaintiff’s office after dark; that the plaintiff read the note to them and told them it was for $1,200 and was to protect himself and his associate in their attorney fees.

Evidence was also offered that the defendant assented to the-assignment of $125 of the judgment to the plaintiff’s counsel.

The defendant explained that she understood the paper she was signing was a bill of costs. ''

This evidence raises a direct contradiction as to the execution of the obligation. If the defendant and the subscribing witness are believed, they did not sign and subscribe as the paper represents them to have done. If the defendant, her husband and her daughter are credited, the defendant was not at the place where the plaintiff alleges the note was executed, but was sick at home a considerable distance away. In such a conflict of evidence there should be a submission to a jury. The case is not as if the signature was admitted and an equitable defense presented for the consideration of a chancellor. There the defendant would be compelled to assume the burden of the presumption arising from the execution of the obligation. Nor is it a case of oath against oath simply, for the defendant is strongly corroborated by other witnesses.

Significance is attached by the appellee to the fact that the defendant in her first petition alleged that she was induced to sign the paper on the representation that she was signing a bill of costs and that she only recently had learned that the paper was a judgment note for the sum of $1,200. In her supplementary petition, however, she sets forth that she had not seen the obligation on which the judgment was entered at the time when her original petition was signed and that when the note was exhibited to her she saw that the signature was not genuine.

The case is controlled by Schomaker v. Dean, 201 Pa. 439. The defendant was entitled to a trial by jury.

The decree is therefore reversed; the rule to open the judgment is reinstated and is now made absolute and the record remitted for further proceedings.


text:
    Eslen’s Estate.
    April 23, 1906:

      Decedents’ estates — Orphans’ court — Disallowance of claim — Findings of fact — Review.
    Where an auditing judge disallows a claim against a decedent's estate for goods sold and delivered, and Ms decision is affirmed by -the orphans' court in banc, the appellate court will not reverse the decree in the absence of manifest error.
    Argued Oct. 5, 1905.
    Appeal, No. 75, Oct. T., 1905, by John Sparhawk, Jr., Trustee iu Bankruptcy of Charles M. Stoever, trading as Charles M. Stoever & Co., from decree of O. C. Phila. Co., April T., 1903, No. 161, overruling exceptions to auditor’s report in Estate of Joseph A. Eslen, deceased.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the exceptions.

      Charles H. Edmunds, for appellant.
    . Charles J. Sharkey, with him F. Pierce Buckley, for appellee.
   Opinion by

Henderson, J.,

The plaintiff’s claim was disallowed by the auditing judge and that action was affirmed in the orphans’ court. The evidence as to the claim is very meager and somewhat obscure. There is testimony which makes it uncertain whether the paper was the property of Stoever & Company; Potter, Sons & Company gave an order to a Mr. Allen, a commission man, for the paper; Stoever & Company shipped the goods; the paper came, however, directly from Joseph C. Godfrey Paper Company. It was rejected at first, but one lot was finally accepted. At the argument it was conceded that Stoever was not a competent witness and his testimony must, therefore, be left out of consideration. He was present when Potter, Sons & Company gave the check for the paper to Eslen and authorized payment to beso made. Potter, Sons & Company, being satisfied that Eslen was entitled to the money, gave him a check in payment for the paper.

An inference might also be drawn from the evidence that if the paper belonged to Stoever & Company, the transaction of the delivery of the check by Potter, Sons & Company to Eslen amounted to nothing more than an exchange of checks, the check of Eslen having been delivered at the same time, for the same amount, to Whitesides for Stoever. As the case is presented in the evidence we are not satisfied that the court was in error in the conclusion reached, and the decree is, therefore, affirmed.


author: Rice, P. J.,

text:
    Ruscomb Street.

      Road law — Vacation of street — Damages.
    Where the effect of the vacation of a street is not to cut off access to lots from any direction, but merely to make it necessary to travel farther than before to reach them, the owner of the lots sustains no injury which will entitle him to recover damages for the vacation of the street.
    Argued Oct. 13, 1905.
    Appeal, No. 106, Oct. T., 1905, by Sallie Houston Henry, Administratrix c. t. a. of Charles W. Henry, deceased, from order of Q. S. Phila. Co., Feb. T., 1903, sustaining exceptions to report of viewers In the Matter of the Vacation of Ruscomb Street.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of viewers. Before von MoschzisKER, J.
    The opinion of the Superior Court states the facts.

      Errors assigned were in sustaining exceptions to report of jury of view.

      William E. Caveny, with him Bayard Henry, for appellant.
    . — The appellant was entitled to damages: Howard Street, 142 Pa. 601; Hare v. Rice, 142 Pa. 608; Pennsylvania S. V. R. R. Co. v. Ziemer, 124 Pa. 560; Mellor v. Philadelphia, 160 Pa. 614.
    April 23, 1906:

      John B. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
    — The recent case of Howell v. Borough of Morrisville, 212 Pa. 849, is decidedly an authority in favor of the appellee’s contention. Whilst it is true the court held that the Act of May 16, 1891, P. L. 75, and its supplements afforded no remedy for injuries due to the vacation of a public street, the court did most emphatically condemn the verdict of the jury, and no doubt would have reversed if that had been the only question before it.
   Opinion by

Rice, P. J.,

It is argued that by the vacation of that part of Ruscomb street between the western line of the Germantown and Chestnut Hill Railway and the eastern line of Twentieth street, the appellant is deprived of one mode of ingress and egress to and from her lots which abut on Ruscomb street between Twentieth street on the west and Nineteenth street on the east, and that this is a special injury for which she is entitled to damages measured by the consequent depreciation in the value of these lots. The copy of the map or plan printed in the appellant’s paper-book, which we assume forms part of the record, shows that access to these lots from the east, north and south by way of Ruscomb street, and intersecting streets to the east of the lots, is not disturbed, and that access by way of Twentieth street, which bounds them on the west, is left as it was before the vacation; also, that Twentieth street north of Ruscomb street was not opened at the time of the view, but was opened to the south. The effect of the vacation, as we understand the situation described by the map, is not to cut off access to the lots from either direction, but it is apparent that to reach them from East Logan street, which is the western terminus of Ruscomb street, and other points to the west of Twentieth street, it is necessary to travel farther than before. Upon these facts the learned court held, that the appellant had not sustained injury which would entitle her to recover damages, and therefore sustained the city’s exceptions and set aside the report of viewers, as far as damages were thereby awarded to her. The same action was taken with regard to the award of damages for the alleged injury to lots of the appellant which are east of Twentieth street and abut on streets connecting at a right angle with Ruscomb street.

In the recent case of Howell v. Morrisville Borough, 212 Pa. 349, Chief Justice Mitchell, after citing Paul v. Carver, 24 Pa. 207; McGee’s Appeal, 114 Pa. 470; Wetherill v. Penna. R. R. Co., 195 Pa. 156, and Daughters of the American Revolution v. Schenley, 204 Pa. 572, said: “It must therefore be accepted as settled law, that the vacation of a highway or street is not an injury to the abutting landowners within the provision of the constitution requiring compensation, and in the absence of special legislation providing for damages none can be recovered.” It was decided in the same case that the Act of May 16, 1891, P. L. 75, makes no such provision. Therefore the case turns upon the construction of the 6th section of the Act of April 21, 1858, P. L. 385, local to Philadelphia, which, so far as material in the present discussion, provides : “ That it shall be the duty of juries selected to assess damages for the opening, widening or vacating of roads or streets within said city, to ascertain and report to the court: first, what damages the parties claiming the same are entitled to ; and, second; to ascertain and apportion the same among and against such owners of land as shall be benefited by such opening, widening or vacating any such road or street.” The statute does not declare who shall be entitled to claim damages, or what shall be a lawful basis for such claim, but it would be unreasonable to suppose that the legislature intended to leave this to the unguided judgment of the jury of view, and to entitle every person to claim them who can convince the jury that his property, whether abutting on the street or not, has depreciated in value. The settled construction of the act is that, as the basis of the right to compensation, the landowner must show a special injury to the property concerned: Howard Street, 142 Pa. 601; Hare v. Rice, 142 Pa. 608; and his loss must be direct and proximate, and so obvious and substantial as to admit of calculation: In Re Melon St., 182 Pa. 397. In that vigorously contested case it was held that owners of lot's on Melon street midway between Ninth street on the east and Tenth street on the west had standing to claim damages for the vacation of Ninth street and the eastern end of Melon street, although they did not abut on the part of the street vacated. The decision was put upon the ground that the owner of land fronting on a street has a special interest or right therein as a means of access to his property, and “ as affecting this right no distinction can be drawn between a partial and a total deprivation of access ; the impairment of the right is a legal injury differing in degree only from its total destruction.” In illustration of the operation of the legal principle Mr. Justice Fell, who delivered the opinion of the Supreme' Court, said: “ If the street is vacated on both sides of his property so as to cut him off from .other streets, his means of access is as effectually destroyed as if the entire street were vacated. If the street is vacated on one side only and his property is left at the end of a cul-de-sac ; if the street is decreased in width so as to be impassable to vehicles ; or if one means of access is taken away by the closing of a back street or alley, his injury may be less, but the difference is one of degree only. In either case he has sustained a loss by the destruction of an important element in the market value of his property, and he has been injured in a legal sense.” The case decides that deprivation or impairment of the right of access, which appertains to the ownership of land abutting on a street, may be the basis for a legitimate claim for damages under the statute, and that such deprivation or impairment may occur by the vacation of a part of the street, although such part is not immediately in front of the claimant’s land. But whether the abutter has such special right in the entire street, from its beginning to its end, as gives' him standing to claim damages where the part vacated is in another block, no matter how remote, and access to his lot on either side from the general system of streets in that vicinity is afforded by the intersecting streets which bound the block in which his lot is situated, is a question which did not arise in that case and was not expressly decided. Nor can we agree with the learned counsel for the appellant that the principle upon which the case was decided necessarily involves an affirmative answer to the question. On the contrary, the illustrations given by Mr. Justice Fell, and the part of his opinion which immediately follows what we have quoted, tend to show that the court did not intend to laydown a general rule which would govern a case presenting such conditions as we have just described. The suggestion of the appellee’s counsel that the Melon street decision has been overruled by the recent case of Howell v. Morrisville Boro., 212 Pa. 349, is not tenable. The case referred to was in no way questioned in the opinion in the latter case, nor was its authority in any degree shaken. It is true, however, that the utterances of the Supreme Court in Daughters of the American Revolution v. Schenley, and Howell v. Morrisville Boro, while not decisive of the precise question, give support to the conclusion reached by the learned judge below, that the inconvenience suffered by the property owner in such a case as we are considering is the same in kind, though perhaps differing in degree, as that of all the people of the vicinity having occasion to use the street in the direction of the part vacated, and therefore is not an injury in a legal sense for which he is entitled to compensation. This conclusion is supported likewise by the great weight of authority outside this commonwealth, as shown by the cases cited in his able and exhaustive opinion, reported in 14 Pa. Dist. Reps. 177. It is considered by this court that it is the correct conclusion under the special facts appearing of record.

The order of the court below as far as it relates to the exceptions filed by the city to the awards of damages to the appellant is affirmed.


text:
    Uhle, Appellant, v. Philadelphia.

      Road law — Change of grade — Streets—Damages,
    Where after a proper grade of a street is established, the owner dedicates the bed of the street to the public use, and subsequently the grade is changed, and some time after this the physical opening and grading takes place at the same time, a purchaser of the land subsequent to the dedication is entitled to recover damages only for the difference between the old grade and the new.
    Argued Oct. 19, 1905.
    Appeal, No. 180, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 2,598, on verdict for plaintiff in ease of Bernard Uhle v. Philadelphia.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Appeal from jury of view. Before Ralston, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendant.

      Error assigned was in directing verdict for defendant.

      Joseph E. Sagebeer, with him Frank B. Ellis, for appellant.
    —The deed of dedication conveyed the bed of the street to the city to the same extent and with the same effect as if the said street had been opened by a decree of the court of quarter sessions upon proceedings had for that purpose under the road laws of the commonwealth of Pennsylvania.
    Such a decree of the quarter sessions court opens the street at once: Philadelphia v. Thomas’s Heirs, 152 Pa. 494, Eisenhart v. Philadelphia, 154 Pa. 393; Clark v. Philadelphia, 171 Pa. 30.
    The right of action for damages resulting from the grading of a street is given by section 8 of article 16 of the constitution, and no damages are recoverable for the establishing of a grade until the actual work of grading is begun: In re Plan 166, 143 Pa. 414; Ogden v. Philadelphia, 143 Pa. 430; Clark v. Philadelphia, 171 Pa. 30; Howley v. Pittsburg, 204 Pa. 428.
    Where the grading of a street occurs as a separate act of public authorities and so long after the opening of a street that the assessment of damages at the time of the appropriation cannot include those resulting from the grading, damages -for the grading may be ascertained by a separate view: Pusey v. City of Allegheny, 98 Pa. 522; Jones v. Bangor Boro., 144 Pa. 638; Ogden v. Philadelphia, 143 Pa. 430.

      John Monaghan, assistant city solicitor, with him George E. Eili and John L. Kinsey, city solicitor, for appellee.
    — The facts of the ease at bar are on all fours with the facts in the case of Righter v. City of Philadelphia, 161 Pa. 73, upon the authority of which, his honor, Judge Ralston, directed a verdict for the defendant in the case under consideration.

      April 23, 1896:
   Opinion by

Rice, P. J.,

In 1889 the plaintiff’s" predecessor in title deeded to the city of Philadelphia the bed of Fifteenth street from Courtland street to Loudon street, which includes the land in front of the plaintiff’s property, “ to have and to hold the same forever for a public street or highway, and for no other purpose, but to the same extent and with the same effect as if the said street had been opened by a decree of the court of quarter sessions for the county of Philadelphia upon proceedings had for that purpose under the road laws of the commonwealth of Pennsylvania.” The expressed consideration to the grantor was “ the advantage to it accruing, as well as for divers considerations, affecting the public welfare which it seeks to advance.” This deed of dedication was duly accepted and recorded prior to the plaintiff’s purchase. The grade of the street was established in 1887, and in 1899 a new grade was established seven-tenths of a foot higher, and it was agreed by counsel at the trial that the street “was physically opened and graded to the confirmed grade of October 7, 1899 on November 27, 1903.” The language of this agreement is plain and unambiguous and for the purposes of this case must be taken as it reads. The court held that as the physical opening and grading were done at the same time the plaintiff’s right of recovery was restricted to the damage done by raising the grade seven-tenths of a foot beyond the paper grade established in 1887 prior to the deed of dedication. This, in substance, is the subject of the principal assignment of error and the arguments of counsel.

The appellant’s counsel argue that the opening of the street must be deemed in law to have taken place upon the acceptance of the deed of dedication, and as the actual grading was not done until many years after, the case is within the rule, that where the grading of a street occurs as a separate act of public authorities, and so long after the opening of the street that the assessment of damages at the time of the appropriation cannot include those resulting from the grading,’ damages for the grading may be ascertained by a separate view. A similar argument was unsuccessfully made in Righter v. Philadelphia, 161 Pa. 73, in order to restrict the effect of a deed of dedication, identical in terms with the one involved in this case, to damages for opening only. It was held that the plaintiff was precluded from recovering damages resulting from lowering the actual surface to the established grade. To show that the legal question involved and decided in that case was identically the same as .the question now before us, we quote from the opinion of Mr Justice Fell : “ The case is here upon an exception to the overruling of a jdemurrer to the statement, and involves the single question whether a party who dedicates his land for the purpose of a street with the same effect as if the street had been opened by legal proceedings can afterward maintain an action for damages resulting from the grading, the opening and grading having been done at the same time and in conformity with a pre-existing grade.” Later in his opinion he said: “ If no dedication had been made, and the city had done precisely what it did — opened and graded the street at the same time — the plaintiff’s action for the opening would have involved his damages for the grading. . . . The question is one of intention to be gathered from the deed, with the aid of the circumstances surrounding the parties.” In the later case of Clark v. Philadelphia, 171 Pa. 30, after quoting this clause of the opinion, the present chief justice said: “ And the most potent factor among such circumstances is the opening and grading at the same time, in which respect the case differs from the present.” These remarks serve equally well to distinguish the case before us from the Clark case, and to show that there was no intention to disturb the rule laid down in the Righter case as applicable to such a state of facts as was presented there and is presented here. The learned trial judge was right in holding that upon the admitted and undisputed facts of this case the rule precluded a recovery of damages for the opening and grading in conformity with the official plan existing at the time of the acceptance of the deed of dedication, and with notice of which plan and dedication the plaintiff must be presumed to have bought. This conclusion renders it unnecessary to discuss the other assignments of error.

The judgment is affirmed.


text:
    Hess, Appellant, v. Philadelphia.
    April 23, 1906:
    Argued Oct. 19, 1905.
    Appeal, No. 181, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 2,598, on verdict for defendant in case of George M. Hess v. City of Philadelphia.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

This case was tried in the court below and argued here with Uhle v. Philadelphia and as it does nof differ therefrom in its essential facts must be decided in the same way.

The judgment is affirmed.


text:
    Wise v. Wilby, Appellant.

      Sale — C ontract — W arranty — C ondition.

    Where a dealer sells leather knowing that it is bought by the purchaser with a view of selling it to a third person, and warrants that the leather is of good quality, and of the size and tannage represented, such language raises no implication that the sale was conditioned upon the acceptance of the goods by the third person.
    Argued Nov. 22, 1905.
    Appeal, No. 68, Oct. T., 1905, by-defendant, from judgment of C. P. Delaware Co., March T., 1903, Ho. 75, on verdict for plaintiff in case of Henry T. C. Wise, trading as Wise & Bailey, v. Thomas Wilby. Before
    Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,295.55. Defenant appealed.

      April 23, 1906:

      Errors assigned were various rulings on evidence and instructions, sufficiently referred to in the opinion of the Superior Court.

      O. B. Dickson, for appellant.

      J. H. Brinton, for appellee.
   Opinion by

Rice, P. J.,

The plaintiff declared upon, and gave evidence to prove, an unconditional sale in Philadelphia to the defendant of a certain number of shoulders of leather at a specified price per pound, which, pursuant to the defendant’s direction given at the time of the making of the contract, were consigned and delivered to I. B. Williams & Sons in Dover, N. H.

The defendant’s counsel claims : first, that the sale was conditioned upon acceptance of the goods by I. B. Williams' & Sons, and that they refused to accept them; second, that the plaintiff expressly warranted them to be of the kind and quality represented by him, and that there was a breach of the warranty.

The court submitted the questions, whether there was (1) an express warranty; (2) a breach thereof, to the jury, with instructions that if they determined them in the defendant’s favor, the plaintiff could not recover; therefore, their verdict in favor of the plaintiff for the full amount of his claim must be taken as conclusive of these questions of fact.

The court also instructed the jury that if there was no warranty the defendant had no defense. This is particularly complained of by the defendant’s counsel, because it withheld from the consideration of the jury the question whether the sale was conditioned upon the acceptance of the goods by I. B. Williams & Sons. A critical examination of the evidence adduced by the defendant, in connection with what was stated when the defendant himself was testifying, has convinced us that the trial judge was fully justified in saying to the jury that the contract between the plaintiff and the defendant, whatever it was, was concluded by the defendant’s son at the last interview lie bad with the plaintiff at the latter’s place of business in Philadelphia (this was not excepted to, nor has it been assigned for error), and in submitting the case to the jury upon the theory that the defense turned upon the question of warranty, and that alone.

Without going into the details of the defendant’s examination, it is to be noticed that at a certain stage of it, immediately after he had been asked a question by a juror, his counsel stated, that, as he understood it, the real bargain was made with the defendant’s son, and at a later stage, that no question would be raised as to any contract made by the latter in the defendant’s business. This suggestion, namely, that the contract under which the goods were sold and consigned to I. B. Williams & Sons, was made with Clarence Wilby acting for his father, the defendant, is borne out by his testimony, and we add, his testimony is irreconcilable with any other theory. This witness was called by the defendant after the latter had testified. According to his version of the transaction, the defendant had been applied to by Williams & Sons for shoulders, but at that time had none to offer. The witness was informed by the defendant that the plaintiff had some to sell, and in consequence of that information he visited the plaintiff’s place of business, where he was told by the latter, that he had about 6,000 pounds of these shoulders that he wanted to sell, that they were cut from twenty-eight to thirty-two pound butts, and were “Unaka Tannage.” We quote the witness’s testimony : “ He said the price would be twenty-six cents, and I told him that the price was a little high, and I went over to look at the shoulders, and I saw the size of them and I said I thought they were too light for our use, and he said if I wanted to buy the shoulders he would make the price twenty-five and a half cents, less five per cent off in ten days. So I told him I thought the shoulders were too light, and I would let him know the following week.” He says he reported this to his father, the defendant, and then wrote to I. B. Williams & Sons from whom a reply was received on November 15,1902. About a week later, in consequence of this reply and what his father had said, he again visited the plaintiff’s place of business. The substance of his testimony as to what occurred at this interview is, that he again told the plaintiff the shoulders were too light for the defendant’s use, but that they had had an inquiry from Williams & Sons for some shoulders and he thought they could use them, if they were as the plaintiff represented as to size and tannage; that he looked at the bundles of shoulders but did not take them apart; that when he asked for a knife to cut them apart, so that he could examine them more closely, the plaintiff said “ they were a good lot of shoulders, and hev could represent them to be all right, and he would guarantee them.” To the question, what then took place, the witness answered: “Well, I said, ‘If you can guarantee them to be all right, why you can ship them to I. B. Williams.’ So he asked me what way to ship, and I told him by Boston boat.” He testifies that the bundles were then weighed, he “ checking up ” the weight, after which he returned home, and reported to his father, the defendant, that he had bought the shoulders. According to the testimony of the witness, this interview must have taken place on or about November 22, and the uncontradicted testimony of the plaintiff is, that he shipped them on that date in-the name of the defendant, as consignor, to I. B. Williams & Sons, as consignees. It is also undisputed that they duly reached their destination.

This testimony would support a finding by the jury that the defendant bought the shoulders with a view of selling them to I. B. Williams & Sons, and that the plaintiff was made aware of this fact in the negotiations which preceded the conclusion of his bargain. But we think it quite clear that it would not support a finding that he warranted them to be satisfactory to I. B. Williams & Sons, or that the sale was conditioned upon the latter’s acceptance of them. In an action upon a contract of sale to recover the price of an article which the plaintiff dealt in, but did not manufacture, it is proper to charge that unless the jury believe from the evidence that the plaintiff expressly warranted the article to work satisfactorily, or fraudulently or falsely represented that it would work satisfactorily, then the plaintiff is entitled to recover, even if the jury find that it did not work satisfactorily: Livingston v. Stevenson, 168 Pa. 262. The plaintiff here may have been willing to warrant the truth of his representation as to the quality, size and “tannage” of the shoulders, and unwilling to leave the decision of that question to the persons to whom the defendant proposed to sell them, or to agree that if these third persons, with or without reason, refused to accept them, the defendant should not be bound to pay for them. True, where a contract is oral the ascertainment of the words used and the meaning of the words is for the jury, but while their latitude in this regard is very broad it does not warrant them in putting an utterly unreasonable interpretation upon them. The language alleged to have been used in the formation of this contract is indefinite at the best, but the most that it imports, under any reasonable interpretation the jury could put upon it, was a warranty that the shoulders were of good quality, and of the size and “ tannage ” alleged to have been represented by the plaintiff. It logically follows, that the refusal of I. B. Williams & Sons to accept them, would not, of 'itself, constitute a defense. Therefore, the rejection of letters addressed to the defendant bearing their typewritten signatures, as proof of their refusal to accept the goods, would not have been prejudicial error, even if the rule as to hearsay testimony does not apply, and the objection to the proof of the signatures is not valid.

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


author: Pouter, J.,

text:
    Greenwood, Appellant, v. Union Traction Company.

      Evidence — Cross-examination—Residence—Citizenship.
    Where a plaintiff in an accident case has been permitted to show his residence, he may be asked on cross-examination whether he is a citizen of the United States.

      Negligence — Street railways — Damages—Punitive damages — Pushing pas-, senger from car.

    Where the conductor of a street railway car without previous ill will, and without unkind words declines to receive an intoxicated man as a passenger, and when the latter attempts to board the car, pushes him on the breast so that the man falls from the car and is injured, the street railway company is liable for compensatory, but not punitive damages.
    The recovery of exemplary damages from a master for injuries inflicted by the servant, which the master neither authorized nor approved, is not to be permitted except in a very clear case. Such damages are allowed only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage or wanton recklessness; in the absence of proof of these circumstances of aggravation, compensation merely is the rule. __ .

      Argued Oct. T., 1905.
    Appeal, No. 158, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1902, No. 1,125, on verdict for plaintiff in case of James Greenwood v. Union Traction Company.
    Before Rice, P. J., Beaver., Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McMichael, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [Now, as you take one or the other of those views, you will come to the conclusion, first, whether the defendant was negligent; and, second, whether the plaintiff was careless. Because, if the conductor pushed the man off after he got upon the step of the car, with violence enough to throw him to the ground and injure him, and then started the car, that is evidence from which you may find — you are not bound to find it ■ — but you may find that the action of the conductor was negligent or careless.] [2]
    [In this case there has been a request made by the plaintiff’s counsel for me to allow you to determine whether or not the conductor was guilty of such grossly negligent conduct, or such willful misconduct, as to justify you in finding a verdict against the defendant company for what are called'in the law exemplary damages. I shall explain that a little more folly hereafter, but in my opinion there is no evidence to submit to you on that point. I do not think there is any evidence that the conductor willfully and maliciously pushed the man off, nor is there any evidence that the circumstances were those of violence, oppression, outrage or wanton recklessness. It is the duty of the court to determine upon any question of fact whether there is any evidence to go to the jury, and, without elaborating the question, I instruct you that there is no evidence which would justify you in inflicting a verdict for what are called exemplary damages. That is, you cannot, as the learned counsel for the plaintiff urged you to do, give a verdict against this defendant company in this case as an example, for that is what exemplary means ; nor can you give a verdict in dollars and cents under the evidence in this case to punish the defendant, which is called a punitive verdict. I shall not take your time in*going into the law. It is well established in Pennsylvania that for a wanton or malicious act of an employee a company may be punished. There may be such wanton and malicious circumstances as to justify a jury, under proper instructions from the court, in punishing a defendant, but our highest courts have said that it is the duty of the judge who is trying the case to determine whether or not there is such evidence, and, after careful consideration, I have come to the conclusion that there is not. I have heard no evidence which persuaded me that the conductor acted wantonly or recklessly. He acted, as far as the evidence shows — whether or not he made a mistake in carrying it out — under the belief that the man was an intoxicated person, and there is nothing to show that he acted wantonly. I shall not elaborate this, because I have taken the question away from you, but shall simply say that I heard no evidence, and there was none, to justify a verdict for exemplary damages.] [3]
    Verdict and judgment for plaintiff for $200. Plaintiff appealed.

      Errors assigned were (1) in permitting the plaintiff to be questioned as to his citizenship; (2, 3) above instructions, quoting them.

      Pierce Mecutchen, with,him Joseph H. Taulane, for appellant.
    —The appellant contends that the small amount of the verdict was directly due to the fact that the court charged the jury that there was no evidence upon which they could award punitive damages, which charge was erroneous because there was evidence that the conductor, without any good cause, pushed the plaintiff backward off defendant’s car, while the car was in motion, which appellant contends showed both wantonness and recklessness: Lake Shore, etc., Ry. Co. v. Rosenzweig, 113 Pa. 519; Artherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141; McDonough v. R. R. Co., 137 Mass. 210; Pliila. Traction Co. v. Orbann, 119 Pa. 37; People’s Nat. Gas Co. v. Millbury, 2 Mona. 145; Ruling v. Henderson, 161 Pa. 553.
    The appellant contends that the fact that the plaintiff was not a naturalized citizen was absolutely irrelevant to the case, and that its admission in evidence on behalf of the defendant was calculated to prejudice the jury against the plaintiff, and in view of the smallness of the verdict, constitutes a proper ground for reversal.
    April 24, 1906:

      Thomas Learning, for appellee.
    — The court was correct in charging that the evidence did not warrant smart money or punitive damages: Philadelphia Traction Co. v. Orbann, 119 Pa. 37; Lynch v. Troxell, 207 Pa. 162; Artherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141; Pittsburg, etc., R. R. Co. v. Pillow, 76 Pa. 510; Pittsburg, etc., Ry. Co. v. Hinds, 53 Pa. 512.
   Opinion by

Pouter, J.,

The plaintiff brought this actibn to recover damages for injuries alleged-to have been sustained by him, in falling after having been pushed frbm a moving car by a conductor of the defendant company. The plaintiff had testified in chief that he resided at Frankford, in the city of Philadelphia, and the court below permitted him to be asked on cross-examination whether he was a naturalized citizen, which is the foundation of the first specification of error. The plaintiff having seen fit to prove his place of residence, there was no impropriety in permitting the defendant to inquire whether he was a citizen of the United States as well as a resident of the city of Philadelphia. The admission of this evidence certainly did the plaintiff no harm, for the jury rendered a verdict in his favor, although his cause was sustained only by Ms own testimony and that of three witnesses, while their testimony was contradicted by that of seven witnesses, five of whom were disinterested.

The second specification of error is without merit. When the court said to the jury : “ If the conductor pushed the man off after he got upon the step of the car, with violence enough to throw him to the ground and injure him, and then started the car, that is evidence from which you may find .... you are not bound to find it, but you may find that the action of the conductor was negligent or careless,” it was not repeating nor attempting to repeat the testimony. The jury could only have understood that if from all the testimony they found the fact to >be as stated, that it was for them to say whether the action of the conductor was negligent. The learned judge in no part of his charge misquoted the testimony. Whether the car had started when the conductor put his hand upon the breast of the plaintiff and told him that he could not enter the car was, under the evidence, a disputed fact. The jury found that the conductor was negligent. The language of the judge, complained of in this assignment, had no possible bearing on any other question involved in the case, and the specification of error is dismissed.

The third and fourth specifications of error go to the refusal of the learned judge of the court below to instruct the jury that they might under the evidence find a verdict against the defendant company’for exemplary damages. The plaintiff recovered a verdict, under instructions of the court as to compensatory damages which were clear and full and as to which the plaintiff has assigned no error, in a sum which, in the light of the testimony, cannot be pronounced inadequate. He thinks he should have more, because the defendant company should be punished for the alleged wrongful act of its servant.

The conductor declined to receive the plaintiff as a passenger, stating as his reason that the latter was under the influence of liquor. That the plaintiff had been drinking is an undisputed fact. He admitted that he had had three drinks shortly before attempting to board the car, but testified that he was not drunk. He was, as to the latter fact,-contradicted by several witnesses. If the plaintiff was drunk the conductor was justified in declining upon that ground to receive him as a passenger, doing so in a proper manner: Pittsburg & Connellsville Railroad Co. v. Pillow, 76 Pa. 510. He had, however, no right to push him in such manner as to injure him.

The plaintiff in his testimony thus described the occurrence. When the car stopped he attempted to board it and the conductor told him to wait until some passengers had alighted. “When they got off, I stepped on the step again with the handle-bar in my hand. He pulled the bell and started the car, and he put his hand on my breast and he said, ‘ You can’t come on this car.’ I lost my foothold. I was trying to gain it again by hanging on to the handle-bar, but the car was going along and I had leave to go. ... I fell in the street.” The testimony of the plaintiff was in a measure corroborated by that of three witnesses called by him. One of these witnesses, MacFarland, testified: “ He (Greenwood) got on the step and stood there a while, and the conductor told him to get off. When the conductor told him to get off he wouldn’t get off. So he told his friend down on the street to take him off. Q. Who told his friend to take him off ? A. The conductor. Q. He told Greenwood’s friend ? A. Yes. - The friend didn’t have time to take him off, so he reached for the bell quick and gave the man a shove and he fell on the back of his head. The car had just started up.” Seven witnesses, five of whom were disinterested, testified that the conductor did not push the plaintiff from the car; that the latter was standing in the street when the car started, that he grabbed the handrail and was dragged by the car, that the conductor pulled the bell to stop, but, although the car was stopped within fifteen feet of the point from which it started, the plaintiff fell to the ground before it came to a standstill. The jury found, however, in favor of the plaintiff, and it must be assumed that the conductor pushed the plaintiff and that the latter as a consequence fell from the car. •

The recovery of exemplary damages from a master foi' injuries inflicted by the servant, which the master neither authorized nor approved, is not to be permitted except in a very clear case: Artherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141. Such damages-are allowed only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage, or wanton recklessness; in the absence of proof of these circumstances of aggravation, compensation merely is the rule: Nagle v. Mullison, 34 Pa. 48. There must he willful misconduct, or that entire want of care which would raise a presumption of “ conscious indifference to consequences: ” Lake Shore & Michigan Southern Railway Co. v. Rosenzweig, 113 Pa. 519; Lynch v. Troxell, 207 Pa. 162; Milwaukee & St. Paul Railway Co. v. Arms, 91 U. S. 489. When these principles are applied in an action for personal injuries suffered by the negligence of a servant, it is evident that, in order to permit of a recovery of exemplary damages, there must be actual malice, or such a reckless and conscious indifference to the rights of others as would, in a criminal proceeding, sustain an inference of legal malice. The motive of the defendant becomes material, there must be some wrong motive accompanying the wrongful act: Lynch v. Troxell, 207 Pa. 162; Pittsburg Railway Company v. Lyon, 123 Pa. 140.

There had been no previous ill-will upon the part of the conductor towards the plaintiff, and there was not an unkind word spoken at the time of the occurrence. All that appears is that the conductor pushed the plaintiff on the breast. The testimony of the plaintiff does not indicate that the push was a violent one, and he is the one person who ought to know whether he was roughly handled. The conductor declined to receive him as a passenger and gave his reason therefor, but there was no evidence of anger or conscious indifference to the consequences. While the witnesses contradict each other as to whether the car was in motion and whether the plaintiff was standing on the step or in the street at the time the conductor told him he could not enter the car, they all agree that the conductor very promptly stopped the car as soon as it became evident that the plaintiff was clinging to the handrail and about to fall. This case is ruled by Philadelphia Traction Co. v. Orbann, 119 Pa. 37. In that case a young boy was pushed off a moving car by a conductor, and was run over by a trailer, or second car, which was drawn by that from which he fell. The .trial court permitted a recovery of exemplary damages, and the judgment was reversed; Mr. Justice Clark, who spoke for the court, said: “ There can be no justification, of course, for the negligent act of pushing a little boy off a moving car, and for the consequences of such an act the offending party would ordinarily be held to compensate the injury. But whether he will also be punished for the act, must depend upon the manner or the motive in which the act is done.”

The assignments of error are overruled, the judgment is affirmed and the appeal dismissed at costs of the appellant.