text:
    Rundle v. Slate Belt Electric Street Railway Company, Appellant.

      Negligence — Street railways — Passenger—Runaway car — Sudden danger.

    Where in a case against a street railway company to recover damages for personal injuries, it appears that an electric car ran away down grade, and was abandoned by the conductor and motorman, that the track was not properly sanded, and that the plaintiff, a passenger, left his seat in the body of the car under the influence of fear, and placed himself on the rear platform where he was thrown off at a curve, the question of the company’s negligence is for the jury, and a verdict and judgment for plaintiff will be sustained.

      Negligence — Damages—Salary during disability — Gift.
    In an action to recover damages for personal injuries, plaintiff is entitled to recover for the loss of his salary during disability, although the amount of it was paid to him by his employer, where the evidence shows that the money was paid by the employer not as a salary but as á gift.

      Negligence — Damages—Evidence—Carlisle tables.

    It is not error for the court in instructing the jury as to the regard to be given to the Carlisle tables to say “they may be of some aid to you if you get that far in the case, to determine how long it is likely that the plaintiff in this case would live. But they are not a positive guide to you; they are not binding upon you. Plaintiff might die to-morrow, or he might live sixty years, notwithstanding the Carlisle tables. You, as reasonable men, understand that. The duration of his life cannot be told, cannot be found out. It depends upon his physical condition. It depends upon his acts and conduct and somewhat upon his social condition in some cases. And so with this warning I will state that these tables may be of some aid to you — if you find out that plaintiff is permanently disabled — may be of some aid to you in ascertaining how long he is liable to live.”
    Argued Dec. 5, 1906.
    'Appeal, No. 102, Oct. T., 1906, by-defendant, from judgment of C. P. Northampton Co., Feb. T., 1905? No. 28, on verdict for plaintiff in case of William A. Rundle v. The Slate Belt Electric Street Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Trexlek, P. J., specially presiding.
    The court charged in part as follows:
    [The plaintiff seeks to recover in this case because the company has omitted to do something that it should have done, or has done something that it ought not to have done. In other words, he says the company is to blame for this accident that' happened to him. And in order to fully understand this question, gentlemen of the jury, it is well for you to consider what the relative duties of a common carrier such as this electric street railway company are in regard to the people it carries for hire. This man paid his fare, and by reason of the payment of that fare there was a contractual relation between them, and it was the duty of this company to carry this man safely and to use all means possible to avoid any accident occurring that it could have foreseen, or ought to have foreseen (could have seen is probably expressing it correctly), and they should provide against such occurrences as the reasonable human foresight could see would happen, or would likely happen.] [1]
    [In such eases as this, and this has all been alluded to, the mere happening of an accident presumes that the company was negligent. In an ordinary case, if a man hurts you and causes you harm, you, being the plaintiff, would come into court; and the burden of establishing that negligence, showing that he is to blame for the occurrence, is upon you. But in cases of this character the law says this company has a higher duty than an ordinary person, and that the happening of an accident to one whom it has engaged to carry, one who is in its charge, imputes to them negligence and blame, and that they should produce evidence in the court to show that they were not negligent, and in that way the burden is shifted.
    Understand, gentlemen, considering all this case there nevertheless must be found by you that the defendant was negligent in order that you should bring in a verdict against him. The only effect of the rule is that the defendant must show the absence of it, and the' burden is upon him to do that. But* still the theory of recovery is that negligence was committed.] [2]
    [And the plaintiff claims. that he is permanently disabled; not totally disabled, but permanently, partially disabled, to use two adverbs; and it is a matter for you to decide whether or not that statement is borne out by the testimony in this case. And if you find that he is permanently disabled, then the question of his expectancy of life might come into this case, and would come into this case, and the Carlisle tables, as they are known, have been introduced into this case ; and it is my duty to warn you that these tables are based upon the experience of insurance companies and they take a large number of people and, from their experience, they can find out what the average time is that a man of such age in full life will live, and they may be of some aid to you if you can get that far in the case, to determine how long it is likely that the plaintiff in this case would live. But they are not a positive guide to you; they are not binding upon you. Mr. Bundle might die to-morrow, or he might live sixty years, notwithstanding the Carlisle tables. You, as reasonable men, understand that. The duration of his life cannot be told, cannot be found out. It depends upon his physical condition. It depends upon his acts and conduct, and somewhat upon his social condition in some cases. And so with this warning I will state that these tables may be of some aid to you — if you find out that Mr. Rundle is permanently disabled — may be of some aid to you in ascertaining hów long he is liable to live.] [3]
    Defendant presented this point:
    7. It appearing from the plaintiff’s own evidence that he continued to.receive his usual and regular monthly wages as assistant superintendent, without abatement or interruption from the time of the injury, and that, with the exception of a week or ten days, he performed duties of his employment, although for a time they might not have been to the same extent or as efficient as before, the plaintiff is not entitled to recover as part of his damages, any compensation for loss of earnings. Answer: This is refused; although I am glad this point was submitted, because the court would have probably overlooked this. The evidence in this case is that the slate company, in which the plaintiff was employed, paid their monthly men, as-they call them, if they were injured or got sick, irrespective of the work that they performed; and there is some evidence in this case which would indicate that this amount was'paid to the plaintiff in this case. No, the evidence is undoubted that the amount was paid to the plaintiff in this case. I think it was ten days from the time that the accident occurred.
    Mr. Stewart: The whole period.
    The Court: And that for ten days he was disabled and could not go to the quarry, and that after the ten days, he testified, that, in order to occupy his mind, he went to the quarry, but that when he was at the quarry he performed certain duties; that he directed the men, and gave advice and so on. Now, these two facts are before you, the fact that the wages were paid even during the period when he did not work anything; and that the company paid their monthly men whenever they were hurt or got sick, irrespective of what they did. Now, if he was in the quarry and was occupying his position, and the relation between the employer and him was such that he was paid for what he was doing there, even if he did not perform his full duties, then he should not recover. If, however, you can find from the case, or rather, you do find from the case, that this amount was paid to him, not for the work he did there, but as a gratuity, in other words, that the company made him a present and that it was not paid him for the labor performed, then you can give him an amount which he has lost by reason of his loss of wages, irrespective of the- amount which he received from his company as a present. The presumption is that when a man goes to work at such a place that he is there by reason of his usual occupation; but there is enough in this ease, in my mind, to submit it to you, whether the amount he received after the ten days of idleness was a present from the company, or was wages for the services he performed in and about the quarry. [9]
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Errors assigned were (1, 2, 3, 9) above instructions, quoting them.
    IK S. Kirkpatrick, of Kirkpatrick Maxwell, for appellant.—
    The standard of liability is not employment of all pos*sible means to avoid any accident, nor is the defendant’s liability dependent upon the mere fact of an injury to a passenger or the failure to carry him safely. The failure to carry a passenger safely must be due to some negligence or want of care on the part of the carrier, whether that want of care or negligence is an inference to be drawn from the facts and conditions attending the accident, or is shown by affirmative proof of an omission to guard against the accident, which reasonable human foresight could have prevented: Fredericks v. Northern Cent. R. R. Co., 157 Pa. 103; Meier v. Penna. R. R. Co., 64 Pa. 225; Farley v. Traction Co., 132 Pa. 58; Fearn v. West Jersey Ferry Co., 143 Pa. 122; Wadsworth v. Boston Electric Ry. Co., 182 Mass. 572 (66 N. E. Repr. 421).
    If the plaintiff goes on with his evidence and shows by his witnesses the exact cause of the accident, and discloses no negligence on the part of the defendant, he is not entitled to go to the jury: Buckland v. R. R. Co., 181 Mass. 3 (62 N. E. Repr. 955); Lincoln Traction Co. v. Webb, 102 N. W. Repr. 258; Rupp v. Sarpy County, 98 N. W. Repr. 1042; Kay v. Metropolitan St. Ry. Co., 163 N. Y. 447 (57 N. E. Repr. 751).
    The mere fact that the passenger was injured does not raise a presumption of negligence so as to shift the burden of proof upon the defendant where the evidence clearly shows the cause of the accident: Keller v. Railway Company, 149 Pa. 65; Penna. R. R. Co. v. MacKinney, 124 Pa. 462.
    The ordinary rule is that it is contributory negligence to ride upon a platform while the ear is. in motion: Thane v. Traction Co., 191 Pa. 249; Gaffney v. Traction Co., 211 Pa. 91.
    It is not sufficient to say, as the court did, that the tables were some aid but not conclusive in determining the probable life of the plaintiff: Seifred v. Penna. R. R. Co., 206 Pa. 399; Kerrigan v. Penna. R. R. Co., 194 Pa. 98.
    March 5, 1907:

      Russell O. Stewart, for appellee.
    — That the contract is to carry the passenger safely, plainly appears from the authorities: R. R. Co. v. Norton, 24 Pa. 465; Sullivan v. Philadelphia & Reading R. R. Co., 30 Pa. 234; Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244; Fox v. Philadelphia, 208 Pa. 127.
    That the learned judge of the court below was right in his statement of the rule, as to the burden of proof, and the way in which it shifts, we need only refer to a few of the many cases: Laing v. Colder, 8 Pa. 479; Sullivan v. Philadelphia & Reading R. R. Co., 30 Pa. 234; Meier v. Penna. R. R. Co., 64 Pa. 225; Spear v. P. W. & B. R. R. Co., 119 Pa. 61; Madara v. Shamokin & Mount Carmel Electric Ry. Co., 192 Pa. 542; McCafferty v. Penna. R. R. Co., 193 Pa. 344; Rauch v. Smedley, 208 Pa. 175; Sowers v. McManus, 214 Pa. 244; Clark v. Lehigh Valley R. R. Co., 24 Pa. Superior Ct. 609.
    The defendant can claim no advantage from the charity of a third party: Alston v. Stewart, 2 Monagban, 51; Norristown v. Moyer, 67. Pa. 355 ; Stahler v. Philadelphia & Reading Ry. Co., 199 Pa. 383.
    Where the plaintiff, by his proof, has brought himself clearly within the class of selected lives tabulated, the Carlisle tables apply: Kerrigan v. Penna. R. R. Co., 194 Pa. 98; Iseminger v. York Haven Water & Power Co., 209 Pa. 615.
   Opinion by

Morrison, J.,

This is an action of trespass based on alleged injuries to the plaintiff caused by the negligence of the defendant. The plaintiff having recovered a verdict and judgment thereon, the defendant appealed. The leading facts and the position of the appellant are so well stated in the history of the case by appellant’s learned counsel that we cannot do better than to use the same here.

On October 20, 1904, the plaintiff was a passenger on one of the defendant’s cars, from Pen Argyl to and into the borough of Bangor. The defendant’s employees in charge of the car were the motorman and conductor. Nothing unusual happened until the car going at the ordinary rate of speed passed the corner of Pennsylvania avenue and seventh street, in said borough, where it turned to descend a steep grade along Pennsylvania avenue..' The car proceeded down the grade some distance when the motorman lost control of it, and towards the bottom of the hill it was running at a high rate of speed, and two of the trucks left the track. When the car was about halfway down the grade plaintiff left his seat, went to the rear of the car, placed himself near or upon the rear platform, and as the car rounded a curve at the foot of the hill, he was thrown or jumped into the street and was injured by the fall. From the plaintiff’s testimony we learn that the motorman and conductor of the car were at the front attempting to control the car by the apparatus at that point, and as they neared the curve, having lost control of the car, they left it. It was at this curve that plaintiff was thrown or fell from the car as already stated.

It appears that the car and its appliances were of the proper and approved kind and in good working order, or supposed to be, and that the track at this point had been swept and sanded about midnight before the accident and before the car upon which the plaintiff took passage, left Pen Argyl. It was not contended that the motorman and conductor were not careful and experienced persons, competent for the work to which they were assigned.

The plaintiff’s injury disabled him for several months as shown by the evidence in the case.

The negligence charged in the declaration was the running of the car at a dangerous rate of speed and the abandonment of the car by the motorman and conductor, causing the plaintiff, under the influence of fear, to leave his seat and place himsejf at the rear platform where he was thrown out of the car while it was rounding the curve at Fifth street and thus inflicting the injury in question. The actual manner in which the car was operated, its speed, its rounding the curve, and throwing the plaintiff from the rear platform where he had gone while the car was descending the grade, and the desertion of the car by the motorman and conductor appeared in the plaintiff’s own testimony.

The court charged the jury that the mere happening of the accident to this plaintiff raised a presumption that the company was negligent, and that the burden was placed upon the defendant to rebut this presumption. But in the same connection the learned court said to the jury: “ Considering all this case there nevertheless must be found by you that the defendant was negligent in order that you should bring in a verdict against him. The only effect of that rule is that the defendant must show the absence of it, and the burden is upon him to do that. But still the theory of recovery is that negligence was committed.”

We find in the record ten assignments of error, but we hope to fairly dispose of the questions raised without discussing these assignments seriatim. The first and third assignments are from the charge of the court. A careful reading of the charge, as a whole, convinces us that it is free from substantial error.

The main burden of the contention of the able counsel for the appellant is that the court erred in instructing the jury that the happening of this accident, in the circumstances disclosed by the plaintiff’s testimony, prima facie established the negligence of the defendant and placed the burden upon it of rebutting such negligence, and further, that the court imposed too high a measure of liability upon the defendant. We will examine these questions in the light of some of the authorities in this state. First, we may safely say that if the plaintiff had remained in his seat in the car and it had left the track at the curve and he had been injured, no one will undertake to argue that upon showing such facts he would not have sufficiently established the negligence of the defendant. We think that proposition is so clearly established by Palmer, Appellant, v. Warren Street Ry. Co., 206 Pa. 574, that the question has gone beyond discussion. We have a long line of cases preceding the Palmer case to the same effect, but that case is so conclusive upon the subject that we will not load this opinion with Citations and discussions of many of the other cases.

In that case Mr. Justice Brown said : “ but the case is within the unbending rule, applicable to railroad and street passenger railway companies alike, that, where a passenger on a car is injured, without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of rebutting it: ” citing a long list of cases. The learned justice then goes on to say: “ and it is immaterial that the collision was not due to any defect in the car on which the plaintiff was riding, or the machinery connected with it, but to a broken appliance on the car that ran into it; for the presumption of the defendant’s negligence arises not only whem the injury is caused by a defect in the road, cars or machinery, or by want of diligence or care in those employed, but by any other thing which the company can and ought to control as a part of its duty to carry the passenger safely.”

But the learned counsel for the appellant seems to argue that the happening of the accident in the present case did not establish the negligence of the defendant because the plaintiff went upon the rear platform and was thrown off the car, while if he had remained in his seat, as the result proved, he would not have been injured. But Mr. Justice Bbown has covered this question in the case from which we have just been quoting. That was a case where the plaintiff, impelled by the fear of the consequences of a collision, jumped from the car and was injured. We will here quote further from the Palmer case : “ The company had confronted her with the peril from which she would have escaped, and it is and ought to be responsible to her for whatever naturally followed. In trying to save herself, she was at the same time, unconsciously trying to save the company from the consequences of its negligence, and of her effort to do so it ought to be the last to complain, unless it is manifest that she acted rashly and imprudently. ‘ In such a case, the author of the original peril is answerable for all that follows. .... If, therefore, a person should leap from the car under the influence of a well grounded fear that a fatal collision is about to take place, his claim against the company for the injury he may suffer will be as good as if the same mischief had been done by the apprehended collision itself. When the negligence of the agents puts a passenger in such a situation that the danger of remaining on the car is apparently as great as would be encountered in jumping off, the right to compensation is not lost by doing the latter; and this rule holds good, even where the event has shown that he might have remained inside with more safety.” The learned judge then proceeded to say: “ and the presumption of the common carrier’s negligence is not confined to the case of injuries resulting from actual collision, but extends to those caused by an effort to escape it, when made on a well grounded belief that it will occur.”

In the present case it was contended, and there was evidence in support of the contention, that the defendant’s track had not been properly sanded ; that it was sanded about midnight and the sweating of the rails, as it was called, had destroyed or weakened the effect of the sand. The car was running away and the motorman and conductor abandoned it, and the evidence was ample to warrant the jury in finding that the plaintiff went to the platform under a well grounded fear that there was great danger of remaining in the car. It is idle, then, to argue that the negligence of the defendant was not sufficiently proved to cast the onus upon it of relieving itself from the apparent negligence by proof sufficient to satisfy the jury.

But the learned counsel further contends that the learned court held the defendant to a larger measure of liability than the law authorizes. But reference again to the Palmer case justifies, we think, the instruction given to the jury by the court below. On page 581, the rule in Meier v. Penna. R. R. Co., 64 Pa. 225, is quoted approvingly and we think that rule sustains the court below in the present case. It is there said: “ The utmost care and vigilance is required on the part of the carrier. The rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practical care and diligence should be adopted that is consistent with the mode of transportation adopted.” Applying this rule to the operation of the defendant’s car which injured the plaintiff leaves no ground for arguing that the defendant was not guilty of negligence. When a car runs away down grade and is abandoned by the employees in charge of it, and there is evidence that the track was not properly sanded, can it be said that the defendant used the utmost care and vigilance ? Certainly not.

By reference to the charge of the learned court it will at once be seen that it does not go beyond the rule as above indicated. The learned court in part said : “ This man paid his fare, and by reason of the payment of that fare, there was a contractual relation between them, and it was the duty of this company to carry this man safely, and to use all means possible to avoid any accident occurring that it could have foreseen, or ought to have foreseen (could have seen is probably expressing it correctly), and they should provide against such occurrences as the reasonable human foresight could see would happen, or would likely happen.” We do not think this language is open to just criticism.

It is contended that the court erred in not instructing the jury that the plaintiff was not entitled to damages for the loss of his salary during the time he was disabled by the accident. The evidence was that the plaintiff’s employer paid him the same amount during his disability as he received when regularly employed. If the evidence had stopped here, undoubtedly the court ought to have instructed the jury not to have allowed loss of salary in estimating the damages: Quigley v. Penna. R. R. Co., 210 Pa. 162. Butin that case there was no evidence whatever that the payments were made to the plaintiff as a gratuity or gift on the part of his employer. In the present case, the evidence doés not stop with showing that the plaintiff received from his employer the same salary as before the accident. There is sufficient evidence from which the jury could find that the plaintiff’s employer donated to him the equivalent of his salary for about five months, and whether or not it was a donation or gift or payment for services rendered was fairly submitted to the jury by the court. Therefore, if the jury found that this money was a gift, and assessed the amount of this salary in estimating the damages, there is no error in this which calls for a reversal: Norristown v. Moyer, 67 Pa. 355; Stahler v. Ry. Co., 199 Pa. 383; Quigley v. Penna. R. R. Co., is sufficient authority, under the evidence in the present case, to warrant the court in leaving it to the jury to find that the payments made by his employer to the defendant were a gift.

The only remaining question requiring discussion is raised by the third assignment wherein it is claimed that the court erred in instructing the jury in regard to the Carlisle tables. It may be conceded that the court was not strictly accurate in its instruction to the jury as to what these tables are based upon, but taking the whole instruction upon this point, we think there is no serious error therein. The learned court in part said: “and they may be of some aid to you if you get that far in the case, to determine how long it is likely that the .plaintiff in this case would live. But they are not a positive guide to you; they are not binding upon you. Mr. Rundle might die to-morrow, or he might live sixty years notwithstanding the Carlisle tables. You, ás reasonable men, understand that. The duration of his life cannot be told, cannot be found out. It depends upon his physical conditions. It depends upon his acts and conduct and somewhat upon his social condition in some cases. And so with this -warning I will state that these tables may be of some aid to you — if you find out that Mr. Rundle is permanently disabled — may be of some aid to you in ascertaining how long he is liable to live.” We do not see in this any serious error. If the appellant was not satisfied with the instruction, and he desired more specific instruction, he should have called the court’s attention to the matter by a point. We think the plaintiff by his proofs brought himself within the class of lives to which the Carlisle tables apply : Kerrigan v. Penna. R. R. Co., 194 Pa. 98. We think the charge of the court upon this point is in substantial harmony with the rule in Iseminger v. York Haven Water & Power Co., 209 Pa. 615.

Several of the assignments of error are based on defendant’s points and the answer thereto, but a careful examination of the whole case fails to convince us of any serious error in the answers to these points. The plaintiff’s recovery was $1,000, and it is not contended that this amount is so unreasonably large as to warrant this court in reversing the judgment and setting aside the verdict and granting a new trial. We think this case was well tried and fairly submitted to the jury.

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


source: Caselaw Access Project

author: Morbison,

license: Public Domain

text:
    Brown v. Milligan, Appellant.

      Negligence — Sidewalk—Contributory negligence — Evidence.
    In an action by a woman against the owner of a store to recover damages for personal injuries, the plaintiff testified that she stepped into a hole in the pavement about six inches from the door sill of the defendant’s store in which she had been buying goods. She was carrying a market basket filled with groceries on one arm, and under the other she had a package of dry goods. There were boxes and barrels on one side of the door, and a display of goods on the other. A young man who waited upon plaintiff in the store came out in advance of her carrying a sack of flour which she had just purchased from him. Plaintiff expected to meet her son, and as she left the store she looked -up to see whether he was coming down the street. Plaintiff was severely injured by the fall. The accident occurred between two and three o’clock of an August afternoon. Plaintiff gave as an explanation why she failed to see the hole as she entered the store, that she met a lady coming out whose dress skirt covered the hole so that plaintiff was unable to see it. The hole had been in the pavement for several weeks, and had been caused by the defendant’s employees taking heavy barrels and boxes out on the pavement in such a manner that they had broken the pavement and caused the hole. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Submitted Dec. 4, 1906.
    Appeal, No. 234, Oct. T., 1905, by defendant, from judgment of O. P. No. 4, Phila. Co., JuneT., 1904, No. 3,527, on verdict for plaintiff in case of James Brown and Jane Brown v. Robert J. Milligan.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Áudenreíd, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for James Brown for $68.00 and for Jane Brown $96.00.

      Thomas Earle White, of White, White <$• Taulane, for appellant. —
    Plaintiff was guilty of contributory negligence: Robb v. Connellsville Borough, 137 Pa. 42; Shallcross v. Philadelphia, 187 Pa. 143 ; Easton v. Philadelphia, 26 Pa. Superior Ct. 517 ; Sickels v. Philadelphia, 209 Pa. 113.

      Arthur B. Eaton, for appellee. —
    The jury, by their verdict for the plaintiff, have settled the question of this defendant’s negligence, and the contributory negligence of plaintiff in favor of plaintiff: Mintzer v. Hogg, 192 Pa. 137.
    The plaintiff had a right, under the law, to assume that a pavement right in front of a well-patronized store would be a safe place to step : Bruch v. Philadelphia, 181 Pa. 588 ; Musselman v. Hatfield Borough, 202 Pa. 489; Glading v. Philadelphia, 202 Pa. 324; Butcher v. Philadelphia, 202 Pa. 1; Feather v. City of Reading, 155 Pa. 187.

      March 5, 1907:
    In this case, when the plaintiff stepped from the doorway on to the pavement into the hole, she had a large market basket filled with groceries on her right arm, and a bundle of dry goods under her left arm, and the clerk was just ahead of her: Nicholson v. Philadelphia, 194 Pa. 460.
    There was nothing about the condition of this pavement to have required the plaintiff to use extraordinary vigilance : Graham v. City of Philadelphia, 19 Pa. Superior Ct. 292; Snader v. Murphy, 19 Pa. Superior Ct. 35.
    There was nothing about the condition of this pavement to indicate to this plaintiff that to step from the doorstep on to the pavement would be attended by any danger: Iseminger v. Water, etc., Co., 206 Pa. 591.
    The plaintiff did not see the hole, and had no knowledge that such a condition existed, and had a right, under the law, to assume that it would be safe for her to step where she did : Curry v. City of Erie, 209 Pa. 283; Kirchner v. Smith, 207 Pa. 431; McHugh v. Kerr, 208 Pa.' 225; Wible v. City of Philadelphia, 21 Pa. Superior Ct. 486 ; Carson v. Mackin, 23 Pa. Superior Ct. 50 ; Becker v. City of Philadelphia, 212 Pa. 379.
   Opinion bv

Morbison,

On August 2, 1902, between two and three o’clock in the afternoon, Mrs. Brown, one of the plaintiffs, was coming out of a store at the corner of Forty-third street and Lancaster avenue in Philadelphia and, as she alleges, stepped into a hole in the pavement about six inches from the door sill of the said store in which she had been buying goods. She was carrying a market basket filled with groceries on one arm and under the other arm she had a package of dry goods. She had bought the groceries in the defendant’s store, in stepping out of which onto the sidewalk she fell. There were boxes and barrels on one side of the door of the store and a display of goods on the other side. A young man who waited upon her in the store came out in advance of her carrying a sack of flour which she had just purchased from him. The young man, Grau by name, was an employee of the defendant. Mrs. Brown says she expected her son to meet her and as she left the store she looked up to see whether he was coming down Forty-third street. The fall injured her ankle, and she suffered pain and loss of time and her husband lost her services for a time and incurred doctor’s bill and other expenses.

This action in trespass was brought for the recovery of damages resulting from the said accident to Mrs. Brown. The jury found a verdict in favor of James Brown for $68.00, and in favor of Jane Brown for $96.00. Judgment being entered on said verdicts, the defendant appealed.

The action in favor of the husband and wife, and the verdicts and judgment are in due form : Act of May 8,1895, P. L. 54; Milliren v. Sandy Township, 29 Pa. Superior Ct. 580.

The controlling questions are : (a) the negligence of the defendant; (b) the contributorynegligence of Mrs. Brown. There is no question raised as to the measure of damages. As to the negligence of the defendant it is practically conceded that there was sufficient evidence from which the jury could find that the character and location of the hole in the pavement was such as to warrant a finding that the defendant was guilty of negligence. The evidence further shows that this hole had been there for several weeks and that it had been caused by the defendant’s employees taking heavy barrels and boxes out on the pavement in such a manner that they had broken the pavement and caused the said hole. Therefore, the jury could find that the defendant had constructive notice of this unsafe place, within a few inches of the door sill of his store.

The contention on the part of the learned counsel for the appellant is that Mrs. Brown was guilty of contributory negligence and that the court ought to have given a binding instruction in favor of the defendant. In support of this contention it is argued that the accident happened in broad daylight and that if Mrs. Brown had been looking where she was going, as she ought to have done, she could have and undoubtedly would have seen this hole, and she would have been bound to avoid it. In support of this contention the counsel cites Robb v. Connellsville Borough, 137 Pa. 42; Shallcross v. City of Philadelphia,. 187 Pa. 143; Easton v. Philadelphia, 26 Pa. Superior Ct. 517, and Sickels v. Phila., 209 Pa. 113. In the latter case the trial judge in entering a nonsuit said: “ This accident happened in broad daylight; there was nothing at all to interfere with the plaintiff’s seeing precisely where she was going. Every pedestrian using the streets of Philadelphia is obliged to use his eyes for his own protection. The plaintiff did not do that and is therefore nonsuited.” This ruling of the court was affirmed by the Supreme Court.

It may be conceded that the question of whether Mrs. Brown was guilty of contributory negligence is a close one, but in our opinion, it does not fall within the class of cases controlled by the authorities above cited.

The defendant was a merchant carrying on a large business and he invited people to enter his store and go out of it over the defective pavement. The location of the hole within six inches of the door sill would, manifestly, make it less conspicuous than if it had been out in the pavement where people were accustomed to walk up and down the street. Mrs. Brown gives a reasonable explanation of why she failed to see this hole when she entered the store. She says she met a lady coming out whose dress skirt covered this hole so that she (Mrs. Brown) was unable to see it. ■ It is in evidence that hundreds of persons passed in and out of the store in a single day. It is also in evidence that this hole had been covered with a piece of board for some time, but it was not there at the time of the accident. Mrs. Brown entered the store to make purchases and she was well loaded with goods when she passed out of the store and met with the accident. She was immediately preceded by an employee of the defendant who was carrying her sack of flour, which she had just purchased, with other goods, from the defendant’s store. We think she had a right to assume that the entrance to the store was in a reasonably safe condition, and it is not likely that anyone would critically inspect the doorway and the pavement immediately connected therewith, either in going in or out of the store. A person turning from the main pavement to enter a store would naturally look at the door, or, if it was open, look into the store.

In a sense, Mrs. Brown may be said to have- been in the care of the defendant and his servants while in the store, and while going therefrom. Especially is this so as she was closely following a servant of the defendant when the accident happened. The jury was entitled to draw the inference, from this circumstance, that she was not required to carefully inspect the pavement within a few inches of the door sill. This for the reason that the conduct of the defendant’s servant was practically equivalent to saying to her, I will carry your flour out and. you follow me and you will be safe.

It is argued that she was guilty of contributory negligence in looking for her son whom she expected to meet, as she stepped out of the doorway. Possibly this was careless, but it seems to us that it is probably what ninety-nine of every hundred persons would do in similar circumstances. She was heavily loaded with goods, and was looking for her son to relieve her, and as she was following a man who was perfectly familiar with the conditions, it cannot be said, as a matter of law, that she was guilty of contributory negligence. Moreover, it cannot be said, like in Sickels v. Phila, 209 Pa. 113 : “There was nothing at all to interfere with the plaintiff’s seeing precisely where she was going.” This woman had much to interfere with her seeing this hole in the pavemept at that particular time. We think, under all of the evidence, her contributory negligence was a question for the jury.

. The learned court below said to the jury: “ Mrs. Brown was bound to do what any person of good ordinary common sense would have done as she stepped from Mr.- Milligan’s store down to the pavement in front of it. . . . Let me make that plain. If Mrs. Brown by her own negligence contributed to bring about that which happened to her, your verdict ought to be in favor of the defendant, Mr. Milligan.”

In Mintzer v. Hogg, 192 Pa. 137, Mr. Justice Stekrett said: “ In affirming their fourth point, he properly instructed the jury in the words thereof thus : ‘ A person walking along the highway is required to exercise a reasonable watchfulness over his feet, and if the jury believe that this plaintiff, at the time of the accident, did not exercise such watchfulness, she cannot recover.’

“ Viewed in the light of this instruction, the verdict in plaintiff’s favor necessarily implies a finding by the jury that she did exercise such ‘ reasonable watchfulness,’ in walking on the pavement in front of defendant’s house on the east side of York street, — the point at which she was injured, — and hence she was not guilty of contributory negligence.”

We think the plaintiff had a right to assume that a pave: ment, within a few inches of the door of a well patronized store, would be a safe place to walk.

In Bruch v. City of Phila., 181 Pa. 588, Mr. Justice Dean, in reversing the court below for holding the plaintiff guilty of contributory negligence, said : “ But the public walking on the pavements of a large city are not bound to exercise extraordinary care ; care according to the circumstances is all that the law enjoins. They have the right to assume that the pavements are reasonably safe, and that they, by the ordinary use of their eyes, at an ordinary pace, can safely walk on them.”

In Musselman v. Hatfield Borough, 202 Pa. 489, Mr. Justice Dean said : “ Where the risk is not obvious, it becomes a question of fact for the determination of the jury whether there was contributory negligence.” See also Glading v. Phila., 202 Pa. 324.

In Butcher v. Phila., 202 Pa. 1, Mr. Justice Mestrezat, reversing the.court below for refusing to take off the compulsory nonsuit, said: “ The fact that she passed over a sidewalk having a defect in it which she did not observe is not, as a matter of law, to be declared negligence in an action for an injury subsequently occasioned by the defect. The question here is as to the plaintiff’s negligence at the time she fell. At that time her duty was reasonable care under the circumstances. If in passing the place that afternoon she had gained knowledge of the imperfect condition of the pavement and with that knowledge, by reasonable care, could have avoided the hole, then she would be guilty of negligence if she failed to do so. This is the only way she can be affected in this case by having used the walk on the prior occasion. Such information as she then obtained as to the condition of the street she must use, or, failing to do so, be charged with negligence.” See Feather v. City of Reading, 155 Pa. 187, where it was held proper to submit the question of the defendant’s negligence and the plaintiff’s contributory negligence to the jury.

In Nicholson v. Phila., 194 Pa. 460, where the court below refused to give binding instructions and submitted the questions of negligence and contributory negligence to the jury, the Supreme Court in affirming the judgment said : “ It was also in evidence that the plaintiff was incumbered with various articles in her hands and arms at the moment of the accident, being engaged in moving from- her former residence to another. In these circumstances she could scarcely be expected to keep up so careful a lookout for defects in the pavement as an ordinary foot passenger entirely unincumbered. In view of these special facts in the situation it was the duty of the court to leave the question of contributory negligence to the jury.” See also Graham v. Phila., 19 Pa. Superior Ct. 292, opinion by Rice, P. J.; also Snader v. Murphy, 19 Pa. Superior Ct. 35.

Iseminger v. Water, etc., Co., 206 Pa. 591, is a case much like the one at bar. The court below entered a nonsuit. In reversing the judgment Mr. Justice Fell said: “The exceptional facts may make the case a close one, and place it near the border line, but as there was at least a doubt whether the plaintiff exercised ordinary care under the circumstances, the question was for the jury. It is only in clear cases where the facts and the inferences to be drawn from them are free from doubt that the court is warranted in saying that there was contributory negligence.” See also same case, 209 Pa. 615, where Mr. Justice Potter said: “ The exceptional facts may make the case a close one, and place it near the border line, but as there was at least a doubt whether the plaintiff exercised ordinary care under the circumstances, the question was for the jury.”

In Curry v. Erie City, 209 Pa. 283, we find a close case as to the contributory negligence of the plaintiff. The court below submitted the case to the jury and there was a recovery for plaintiff for $3,308. In affirming the judgment the Supreme Court held that the question of the contributory negligence of the plaintiff was for the jury.

McHugh v. Kerr, 208 Pa. 225, is another very close case on the question of contributory negligence of the plaintiff, but the Supreme Court affirmed the court below in submitting it to the jury. See also Becker v. Phila., 212 Pa. 379.

While the case at bar is close to the border line as to the contributory negligence of Mrs. Brown, we are clearly of the opinion that it does not fall within the class of cases where the court can declare, as a matter of law, that she was guilty of contributory negligence. It is conceded that if the case had to go to a jury, it was fairly and properly submitted by the court.

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


author: Morrison, J.,

text:
    Brennan's License.
    March 5, 1907 :

      Liquor law — Revocation of license — Record—Appeal—Evidence.
    An appeal from an order revoking a liquor license does not bring into the appellate court the evidence taken in the case. Where the petition shows that the charge against the liquor dealer was selling at wholesale at places outside of and away from the distinct place where he had authority to sell, the appellate court will assume that the lower court properly exercised its discretion in making the order.
    Argued Dec. 10, 1906.
    Appeal, No. 92, April T., 1907, by John W. Jackson, from order of Q. S. Allegheny Co., Sept. T., 1906, No. 19, making absolute rule to revoke wholesale liquor license, In re P. J. Brennan’s License.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Affirmed.
    Rule to revoke wholesale liquor license.
    The facts appear by the opinion of the Superior Court.

      Error assigned was the order of the court.

      Cfeorge H. Calvert, of Rodgers, Blakeley Calvert, with him E. T. Noble and Donald Thompson, for appellant.

      John P. Hunter, of Sehoyer Hunter, for appellee.
   Opinion by

Morrison, J.,

This is styled an appeal from the order of the court of quarter sessions of Allegheny county revoking the license, to wholesale liquors, theretofore granted by said court to P. J. Brennan. In fact, we only have before us the record, consisting of the petition, answer and order.

In Moyer’s Appeal, 8 Pa. Superior Ct. 475, we said: “ The question as to the respondent’s negligence in the sale of liquors to these minors was one of fact and for the exclusive determination of the court of quarter sessions and its finding is not reviewable upon appeal, for the reason that an appeal in such a case is but a mere substitute for a certiorari, and does not bring up the evidence.”

In Commonwealth v. Brewing Company, 1 Pa. Superior Ct. 627, we said: “ The appellate jurisdiction of this court in such a case is the same as, and no greater than, that exercised by the Supreme Court upon certiorari prior to the Act of May 9, 1889 (P. L. 158) .... As defined in Dolan’s Appeal, 108 Pa. 564, it is restricted to what appears upon the face of the record proper. If manifest error does not there appear, the order complained of must be affirmed.” See also Carlson’s License, 127 Pa. 330.

In the present case the petition and answer showed jurisdiction, and these papers and the order of the court do not show upon their face any irregularity or illegality Calling for. a reversal. There was a petition in writing setting forth plainly that the licensee had sold intoxicating liquors at places away from the first ward of the borough of Bradclock where his license gave him authority to sell, and there only. The fourth clause of tiie petition averred that during the month of August, 1906, and the month of September of the same year, up until the time of the filing of the petition, the licensee had sold and delivered large quantities of spirituous and malt liquors within the townships of Penn, Patton and Wilkins respectively. While there is much surplusage and unnecessary verbiage in the petition, there is no question but it plainly charged that this wholesale liquor dealer had been selling and delivering intoxicating liquors, under the license in question, at several places outside of and away from the distinct place where he had authority to sell. It is of no consequence whether or not there were prohibitory laws in force in the places where it was alleged the improper sales had been made. The gravamen of the offense charged was the sale of liquor in places other than that for which the license was granted. As to the alleged sale in Penn township, the defendant had full opportunity to be heard and it is now to be presumed that the court found that he had violated the law, and it, therefore, became the duty of the court, under the plain terms of the sixth section of the Act of June 9, 1891, P. L. 257, “ upon sufficient cause being shown or proof being made to the said court, that the party holding a license has violated any law of this commonwealth, relating to the sale of liquors, the court of quarter sessions shall, upon notice being given to the persons so licensed, revoke said license.” It is not pretended that the licensee did not have notice in the present case and it was conceded, at the argument, that he appeared with his counsel and was given a full hearing before the order revoking his license was made.

If we refer to the order we see that the court found that P. I. Brennan, the holder of a license to sell liquors at wholesale at the borough of Braddock, for the year from May 1, 1906, to May 1, 1907, has, since May 1,1906, violated the laws of the commonwealth relating to the sale of liquors, in that he has sold and delivered liquors within the township of Penn, etc. It is immaterial whether or not there was a valid prohibitory law in force in Penn township. So much of the order as recites that fact may go for naught. The fact remains, however, that the liquors were sold and delivered in that township, as found by the court, and in so doing he violated the law.

In Dolan’s Appeal, 108 Pa. 564, the Supreme Court said: “ He was duly brought into court, testimony was taken, and, as the record shows, after hearing and due consideration, the court, in the exercise of the discretion with which it was invested, revoked the license. If there was anything on the face of the record to show affirmatively that the court acted arbitrarily and without cause, or that the cause shown was wholly insufficient, it would exhibit such an abuse of discretion as would demand a reversal of the order complained of; but nothing of the kind appears in the record before us, and we have no right to go outside in search of something on which to convict the court helow of error, nor do we feel disposed to do so.”

The above applies with peculiar force to the present case. In Meenan’s License, 11 Pa. Superior Ct. 575, we said: “We find nothing in this record to take the case out of the well settled rule that where a license has been refused after a hearing, the presumption on appeal is, that the refusal was for a legal reason unless the contrary affirmatively appears.” The above doctrine applies with equal force to the revocation of a license.

Under the above and many other authorities, we are bound to presume that the court acted legally and with due regard for the law, as there is nothing appearing on the record showing the contrary.

Order revoking the license granted to the appellant, affirmed, and appeal dismissed at costs of appellant.


text:
    Evans, Appellant, v. Lyon.
    March 5, 1907:

      Contract — Set-off—Affidavit of defense.

    Where suit is brought to recover a balance alleged to be due by the defendants to the plaintiff for goods of the latter sold by the defendants on commissions, as agents, the defendants may show that the plaintiff wrongfully terminated the contract before the time specified therein, and may set off against the plaintiff’s claim the expenses incurred after the breach in endeavoring to carry out the requirements of the contract as to themselves.
    Argued Dec. 12, 1906.
    Appeal, No. 230, Oct. T., 1906, by plaintiff, from order of C. P., No. 3, Phila. Co., March T., 1906, No. 4,249, discharging rule for judgment for want of a sufficient affidavit of defense in case of Allen R. Evans v. Gustav Lyon and Jonas Lichten, Copartners, trading as Lyon, Licbten & Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover balance alleged to be due on a contract.
    From the record it appeared that the balance claimed was alleged to be due for goods of the plaintiff sold by the defendants on commissions, as agents. The defendants alleged in their affidavit of defense that the plaintiff had wrongfully terminated the contract before the time fixed by its terms. They claimed to set off against the balance apparently due certain moneys which had been expended by them after the breach in endeavoring to carry out the contract.
    Other facts appear by the opinion of the Superior Court.

      Error assigned was the order of the court.

      George J. Edwards, Jr., with him John H. Maurer, for appellant.

      Charles Goldsmith, for appellees.
   Opinion by

Morrison, J.,

The learned court below discharged the rule for judgment for want of a sufficient affidavit of defense, and the plaintiff excepted and. appealed to this court. A careful examination of the record convinces us that it would have been much wiser for the plaintiff to have accepted the decision of the court and proceeded to put his case at issue and try it on its merits.

The learned counsel for plaintiff only argues that the declaration and affidavit of defense left a sum apparently dne the plaintiff of $665.13. The first affidavit of defense was defective as to the items of set-off claimed by defendant against said sum. But the supplemental affidavit is, we think, sufficient as to $48.08, commissions not set up in the first affidavit, and as to the $614.90 expenses set up in both affidavits, which are fully and clearly itemized in the supplemental affidavit. This sum and the $48.08 amount to $662.98, and deducting this from the $665.13 only left a balance of $2.15, which upon this calculation appears to be due the plaintiff. But we will not reverse the court below for this small sum on the principle of de minimis non curat lex.

In endeavoring to get away from the set-off of $614.90 the learned counsel for plaintiff loses sight of the fact that the defendants expended this sum on the strength of their contract with the plaintiff that the arrangement or agreement, referred to in the affidavits of defense, was to continue for a year and thereafter so long as plaintiff continueá in the leather business. The contract began on August 24, 1905, and the plaintiff’s breach of it on April 12, 1906, and this breach on the part of the plaintiff, as the case is now presented to us, was entirely without excuse or reasonable ground. In this view of the questions raised by the declaration and affidavits of defense, we are not prepared to say that the law will not allow the defendant to set-off, against the plaintiff’s claim, the $614.90 which the defendants aver they expended on the strength of the contract in endeavoring to carry out its requirements as to them. If on the trial before a jury the facts shall be found as now set up by the defendants, we cannot see why their set-off cannot be sustained: Ludington v. North, 141 Pa. 184.

As to the $20,000 damage averment in the affidavits of defense, we think it is without merit. It is plainly speculative and too vague to prevent judgment: Slag Works v. Krause & Sons, 5 Pa. Superior Ct. 622; Carnahan Stamping, etc., Co. v. Foley, 23 Pa. Superior Ct. 643; Penn Shovel Co. v. Phelps, 24 Pa. Superior Ct. 595.

The appeal is dismissed at the costs of the appellant without-prejudice, etc.


text:
    Commonwealth to use, Appellant, v. Magee
    (No. 2).
    March 5, 1907 :

      Appeals — Exceptions—Interlocutory order — Quashing appeal.

    Appeals should not be resorted to when the effect is to bring cases into the appellate courts by installments.
    No appeal lies from orders discharging rules to show cause why the plaintiff should not. have leave to file a second or amended statement of claim, and the defendant file a second affidavit of defense, where no exception has been taken to the orders, and the orders are in fact interlocutory and not final.
    Argued Dec. 13, 1906.
    Appeal, No. 203, Oct. T., 1906, by plaintiffs, from orders of C. P., No. 1, Phila. Co., June T., 1902, No. 4,508, discharging rules for leave to file an amended statement, and to compel the filing of a second affidavit of defense in case of Commonwealth to use of Charles Beckingham v. James E. Magee et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, J J.
    Appeal. quashed.
    Assumpsit on a bond.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were orders discharging the rules referred to in the opinion of the Superior Court.

      Trevor T. Matthews, for appellant.

      F. S. Brown, with him Charles L. Brown and Alex. Simpson, Jr., for appellee.
   Opinion by

Morrison, J.,

On September 2, 1902, the plaintiff brought suit on a bond given to the commonwealth by James E. Magee, administrator, with Robert J. Barr as surety, conditioned for the faithful appropriation of the proceeds of the sale of real estate of Margaret Dalton, deceased, for the payment of debts.

The plaintiff suggested an award made to him by the orphans’ court of Philadelphia county for the amount of 1889.70, with interest thereon from March 16, 1892, to be paid by defendant Magee, administrator, and his default in complying with said order of the court. Subsequently the court of common pleas gave judgment against the defendants for want of a sufficient affidavit of defense. From this judgment Robert J. Barr appealed to this court and it was reversed because the plaintiff’s declaration did not sufficiently aver that the orphans’ court awarded the money to the plaintiff out of the proceeds of the sale of the real estate. The bond, sued on, was only given to secure the faithful appropriation of such money: Com. v. Magee, 24 Pa. Superior Ct. 329.

The next move was on February 6, 1905, when the plaintiff filed a second statement of claim, with leave of court, averring that the award made to him out of the Dalton estate, by the orphans’, court, was to be paid'out of the proceeds of the sale of the real estate, for the payment of debts.

On February 20, 1905, defendant Barr filed an affidavit of defense and on March 27, 1905, the plaintiff’s rule for judgment for want of a sufficient affidavit of defense was discharged by the court, and the plaintiff excepted to this order and appealed to the Supreme Court. Subsequently that court remitted that appeal and the record to the Superior Court for the very plain reason that the amount claimed by the plaintiff was less than $1,500.

On November 9, 1905, the plaintiff’s counsel took a rule upon the defendants to show cause why he should not have leave to file another statement of claim averring an amendment of the adjudication by the orphans’ court on October 31, 1905, to the effect that the money awarded to the plaintiff was out of the proceeds of the sale of the real estate, made for the payment of the debts of the decedent.

On November 15, 1905, the court discharged this rule without filing any opinion. On February 14, 1906, the learned counsel for plaintiff discontinued his appeal, then pending in the Superior Court, and obtained another rule on the defendants to show cause why the plaintiff should not have leave to file another suggestion of claim upon the award in the estate of Margaret Dalton, deceased, and for the defendants to file another affidavit of defense within fifteen days after notice. On April 3, 1906, this rule Avas discharged by the court without an opinion. On April 27, 1906, the learned counsel procured another rule upon the defendants to show cause why the plaintiff should not have leave to file a statement of claim based upon the amended adjudication by the orphans’ court of October 31, 1905, and why he should not have leave to discontinue all other claims made by him upon adjudication of the orphans’ court in said estate. That is, the claim made on November 14, 1902, and the one made on February 6, 1905, upon payment of costs that had accrued upon the two statements of claim, to the defendant, Robert J. Barr. And that this discontinuance should not operate as a discontinuance by the commonwealth, and that it should be without prejudice to the plaintiff’s right to proceed to collect his claim. And further, that the defendant should file another affidavit of defense within fifteen days after notice. On May 9,1906, the court discharged this rule, without an opinion, and then the plaintiff took the present appeal, to this court, from the order of the court below discharging the rules of February 14, 1906, on April 3, 1906, and of April 27, 1906, on May 9, 1906. The appeal is specifically stated to be from said two orders, and we have examined the record Avith care and find no exception and no bill sealed as to these orders or either of them. There are two assignments of error and they are specifically directed to the action of the court in discharging the rules of February 14,1906, and April 27, 1906.

The suit is still pending and we have searched the record and fail to find any final order or judgment since the order of March 27, 1905, refusing judgment for want of a sufficient affidavit of defense, from which the plaintiff has a right to appeal. To the order of March 27, 1905, there was an exception and the plaintiff had a right to his appeal, and to have that order of the court passed upon by the Superior Court. But after appealing from that order to the Supreme Court, and after that court had sent the appeal to the Superior Court, the learned counsel, on February 14, 1906, appeared and discontinued his appeal in the Superior Court and caused the record to be remitted to the court below. We cannot, at this time, review the action of the court in discharging the rule of March 27, 1905, for the plain reason, without more, that no error is assigned to that action of the court.

The plaintiff is not out of court by any of the above recited orders because his original statement and his amended statement of February 6, 1905, are still upon the record. What, then, is he asking us to do ? The answer is, to reverse the action of the court below in discharging the rules of February 14, on April 3, 1906, and the rule of April 27, 1906, on May 9, 1906. But, he has no exception to either of these orders and they are in no sense final judgments, orders or decrees from which an appeal will lie. At most, he was only entitled to except to these orders and then pursue his case to a final judgment or order from which he could appeal. Of course the plaintiff has another course open to him; if he started wrong, and the court in its discretion will not allow him to amend, so that he feels safe in going to a final judgment, he may discontinue his action, pay the costs and begin de novo.

That the present appeal cannot be sustained is, we think, very plain: Yost v. Davison, 5 Pa. Superior Ct. 469. “ Appeals should not be resorted to when the effect is to bring cases into the appellate courts by instalments.”

“ An appeal does not lie from the refusal to strike off a municipal lien for the reason that there is no definitive decree, nor from an order permitting an amendment, the action being still pending:” Phila. v. Christman, 6 Pa. Superior Ct. 29. See, also, National Transit Co. et al. v. Pipe Line Co., 180 Pa. 224; Lauer et al. v. Lauer Brewing Co., 180 Pa. 593. The motion to quash this appeal must be sustained.

The appeal is quashed and the appellant directed to pay the costs.


text:
    Swingle v. Sun Insurance Office, Appellant.

      Insurance — Fire insurance — Sole ownership — Partnership.
    Where a policy of fire insurance on a stock of merchandise is issued to a person as sole and unconditional owner, and it appeared that at the time the. policy was issued, and at the date of a subsequent fire another person conducted the business, receiving for his services one-half of the profits, without liability to share in the losses, the insured may recover on the policy, although the insured and the person who conducted the business held themselves out to the world as partners, and were, in fact, partners as far as creditors were concerned.
    Argued Nov. 22, 1906.
    Appeal, No. 198, Oct. T., 1906, by-defendant, from judgment of G. P. Bradford Co., Sept. T., 1905, No. 225, on verdict for plaintiff in case of Alton T. Swingle v. Sun Insurance Office.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance.
    Before Fanning-, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,306.04. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Rodney A. Merour, for appellant.
    — Persons who hold themselves out as partners incur the liability of partners : Hoffer’s App., 3 Brewster, 164; Greeg Twp. v. Half-Moon Twp., 2 Watts, 342; Caldwell v. Miller, 127 Pa. 442; Wessels v. Weiss, 169 Pa. 490; Gibb’s Est., 157 Pa. 59; Purviance v. McClintee, 6 S. & R. 259; Williams v. Hagan, 2 La. 122.
    If the title to these goods vested therefore in “ Swingle & Kenyon ” by delivery to the common carrier, then certainly Kenyon had an interest in them, which would not be divested by any prior arrangement made between him and Swingle, and the only way it could be divested, legally, was by a sale, transfer or assignment, previous to the fire, which is not even alleged or pretended by the plaintiff: Grandin v. Rochester German Ins. Co., 107 Pa. 26 ; Diffenbaugh v. Union Fire Ins. Co., 150 Pa. 270 ; Schroedel v. Humboldt Fire Ins. Co., 158 Pa. 459; Freedman v. Fire Assn., 168 Pa. 249 ; Duda v. Home Ins. Co., 20 Pa. Superior Ct. 244; Elliott v. Teutonia Ins. Co., 20 Pa. Superior Ct. 359; Beddall v. Citizens Ins. Co., 28 Pa. Superior Ct. 600: Kompa v. Franklin Fire Ins. Co., 28 Pa. Superior Ct. 425.
    March 11, 1907:

      M. JE. Lilley, of Lilley Wilson, for appellee:
    Pittsburg Ins. Co. v. Frazee, 107 Pa. 521; Burson v. Fire Assn, of Phila. 136 Pa. 267; Pencil v. Home Ins. Co., Clement’s Fire Ins. Dig. 251.
   Opinion by

Morrison, J.,

This is an action of assumpsit upon a policy of fire insurance issued September 15, 1904, to the plaintiff, insuring “his stock of merchandise, the usual variety carried in a country store, contained in his one and one-half story and basement, frame, shingle roof, store building, situate east side of Main Street, Laddsburg, Penn.” The amount of insurance was $1,250 and the term one year. A fire occurred February 24, 1905, destroying the building and goods.

The defense is that the plaintiff was not individually engaged in the mercantile business at Laddsburg, but that he was engaged with his brother-in-law, Dorr L. Kenyon, in carrying on such business at the place named, under the firm name of “Swingle & Kenyon,” and had been so engaged since May, 1903, the business continuing since that date without change until the fire occurred.

It was proved, and is conceded, that plaintiff individually purchased the first goods that went into the store in his own name, but all goods thereafter were purchased in the firm name of Swingle & Kenyon, aggregating about $9,000. These goods were ordered in the name of the firm and shipped and consigned to it and so received. The firm displayed a sign on the store which read Swingle & Kenyon; their bill and letter heads had printed thereon the firm name; they took out a mercantile license in the name of the firm; they kept an account in the bank under the firm’s name; they deposited in the bank the proceeds of all the goods sold, to the credit of Swingle & Kenyon and they drew checks signed Swingle & Kenyon against this account to .pay for goods shipped to said firm.

The agreement between Alton T. Swingle and Dorr L.' Kenyon was5i in substance, that the former was to furnish the capital, the latter was to give his time and services to the business and have half the profits, if airy, but not to be liable for the losses, with the option to purchase a half interest for $500, or the whole for $1,000, which option was never exercised. After the fire occurred the plaintiff alleging this agreement without any sale, transfer or assignment, avers he was the sole owner of the stock of merchandise, etc., and brought this action to recover the amount of the insurance named in the policy. For the purpose of treating the appellant’s contention fairly we have substantially stated thus far the position of its counsel as printed in his paper-book.

The learned court instructed the jury that the manner of doing business of Swingle & Kenyon, as to creditors dealing with them, would constitute them partners. This is undoubtedly correct.

The policy• contained the following: “This entire policy shall be void if the. insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss.” The policy also provides that it shall be void if the interest of the insured be other than unconditional and sole ownership. The defense is based on the provisions of the policy and the undisputed evidence that the goods were purchased and the business transacted, as herein-before stated, in the name of Swingle & Kenyon.

The undisputed evidence, however, shows that Alton T. Swingle was the absolute and unconditional owner of the property and the business, as between the parties, for the evidence disclosed only an imperfect and loose offer to sell to Kenyon on payment of $500, on account, if one-half interest be purchased, and of $1,000, on account, if the entire stock be purchased, with easy terms of credit for the balance of the purchase price. What the balance, or what the easy terms might be, or how to be ascertained and fixed, or when, were not expressed in the agreement. Plaintiff positively testified that he owned the property exclusively at the time he was insured, September 15, 1904; Dorr L. Kenyon testifies that he had no interest in the goods at the time they were insured nor at any time down to the date of the fire. -And this is testified to by Minnie M. Swingle, the plaintiff’s wife, who appears to be the party who really conducted the business.

We have carefully read the charge of the court and consider it absolutely fair and impartial and that the controlling questions in the case were clearly and properly submitted to the jury. The jury having found the facts in favor of the plaintiff it is difficult for us to understand the consistency of the defendant’s position. In our opinion, Pittsburg Insurance Co. v. Frazee, 107 Pa. 521, rules this case. There the Supreme Court said (p. 528) : “ The court instructed the jury that ‘ if the plaintiff furnished the original stock of goods, and kept it up with his own money, and his brother Jasper had no interest in it, but for his services in keeping the store, instead of a salary, was to receive one-half of the net profits, and be responsible for one-half of the bad debts, then the goods would be the sole property of Jonas Frazee.’ In this we think the court was clearly correct. No question as to any partnership relation or liability which by construction of law might be supposed to exist, as to third persons or creditors, is here presented. The inquiry is as to the ownership of the stock as between the parties themselves, and, in such case, where there is a positive agreement that must govern.”

In Burson v. Fire Association, 136 Pa. 267, one of the questions ruled is in point here. In that case Chief Justice Paxson (p. 283) said: “ It was urged, however, by the company that this transaction was a legal fraud, with the effect of making the property liable to execution on the part of the creditors of Flory; in other words, that Flory was the real owner of the property, while the plaintiff only held a bill of sale, unaccompanied by possession, and therefore worthless in law. Upon this theory the defense has been principally constructed.' That it will not bear examination is apparent. The insurance company is not a creditor of Flory. It has no standing to assert that the transaction is a legal fraud. It is good between the parties; it is good against all the world, except creditors of Flory, if there be any, intended to be defrauded. As between the plaintiff and Flory, and as between the plaintiff and the insurance company, the title was in the plaintiff.” •

In 7 Am. & Eng. Ency. of Law (1st ed'.), 1022, in a note we find, as to what will not defeat entire and unconditional ownership, the following: “ Likewise one who has agreed to put the property into a partnership, but who has not done so, — Lycoming Ins. Co. v. Barringer, 73 Ill. 230; or who has taken title in the name of another, — American Basket Co. v. Farmville Ins. Co., 3 Hughes (U. S.), 251, — has such ownership.”

In Clement’s Fire Ins. Digest, p. 175, in the case of Irving v. Excelsior Fire Ins. Co., appears the following: “ Plaintiff being a partner in a firm of two, and owning all the property and assets of the firm, the other being interested only in the profits, obtained insurance on chis stock,’ etc., under a policy stipulating that if the ‘ interest of the insured be a leasehold interest or other interest not absolute, it must be expressed in writing.” Held, that his interest was an absolute equitable interest to which the above provisions did not apply.”

The learned counsel for the appellant has cited many cases and argued elaborately that Swingle & Kenyon were partners. That is true as to strangers and third parties, but none of his cases warrants the conclusion that the insurance company can take advantage of that principle in the present case where the jury has found, on ample evidence, that the plaintiff was the sole owner of the insured property. The counsel cites Purviance v. McClintee and others, 6 S. & R. 259, and contends that it is in conflict with the plaintiff’s contention in the present case. But we do not so understand it. The essence of that case is stated in the syllabus : “If A and B agree that-A shall receive as compensation for his services half the profits of a store, they are partners, as respects creditors.”

Our conclusion is that the question of whether the plaintiff was the owner of the insured property, within the meaning of the terms of the policy, was one of fact for the jury and that it was submitted in a charge, so comprehensive and fair, that the learned counsel lias not criticised it; he only contends that on the evidence he ought to have had a binding instruction, or a judgment for defendant non obstante veredicto. We find ourselves unable to sustain any of the assignments of error.

The judgment is affirmed.