text:
    Justice, Appellant, v. Philadelphia.

      Public officers — Appointment—Civil service examination — Moral obligation — Compensation—Municipalities—Act of March 5, 1906, P. L. 83.
    Where a clerk is appointed by one of the heads of departments of a city of the first class without having passed the civil service examination required by law, and such clerk has performed valuable services for the municipality, a moral obligation is created in his favor which will sustain an ordinance of the councils of the municipality appropriating a proper sum for payment of the services rendered.
    Argued Dec. 11, 1907.
    Appeal, No. 203, Oct. T., 1907, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1907, No. 2,885, dismissing motion for preliminary injunction in case of Henry Justice v. City of Philadelphia, John M. Walton, Controller of the County of Philadelphia, and Robert Linton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Audenried, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree refusing preliminary injunction.

      Vivian Frank Gable, with him Robert D. Jenks and Cyrus D. Foss, Jr., for appellant.
    A ¡moral obligation can grow out of an authorized act of a public officer: Hodges v. City of Buffalo, 2 Denio (N. Y.), 110; Gamble v. Watkins Village, 7 Hun, 448; Sillcocks v. The Mayor, etc., of N. Y., 11 Hun, 431; Tash v. Adams, 64 Mass. 252; Hood v. Mayor of Lynn, 83 Mass. 103; New London v. Brainard, 22 Conn. 552; Black v. Common Council of Detroit, 119 Mich. 571 (78 N. W. Repr. 660).

      Ernest Lowengrund, assistant city solicitor, with him Harry A. Mackey and J. Howard Gendell, city solicitor, for appellees.—
    This case is ruled by Bailey v. Philadelphia, 167 Pa. 569.
    With respect to the numerous cases from other states which appellant cites in this connection, it may be thought enough to point out that, whatever the law may be elsewhere, in Pennsylvania it is as well established as any legal proposition can be, that the legislative bodies of the cities of this commonwealth, and especially the city of Philadelphia, with its broad charter powers and unintérrupted usage of more than two centuries (Tatham v. Phila., 2 W. N. C. 564; 11 Phila. 276) are amply authorized to appropriate money for objects redounding to the general welfare, such as the celebration of public or historical events, etc.: Stegmaier v. Goeringer, 218 Pa. 499; Commonwealth v. Pittsburg, 183 Pa. 202; Commonwealth v. Gingrich, 21 Pa. Superior Ct. 286; Tagg v. Phila., 18 W. N. C. 79.
    October 12, 1908 :
   Opinion by

Head, J.,

The machinery, by which the affairs of a great city are administered, is necessarily extensive and complicated. It is not strange therefore that when the legislature, in the exercise of its sovereign power enacts a law which brings about a sweeping change in the methods of supplying and operating that machinery, honest differences of opinion may arise between the various officials charged with the administration of such law, as to its true scope and the intent of the lawmaker in its enactment. Such a difference seems to have arisen in the summer of 1906— following the passage of the Act of March 5, 1906, P. L. 83— between the civil service commission, created by that act, and the city solicitor of Philadelphia.

The. latter officer, having need of the services of a clerk in the law department of the city, and being of opinion that the act mentioned did not forbid the exercise of the power of appointment by him as it theretofore existed, appointed one Robert Linton. He at once entered upon the discharge of his duties.

Some time later the commission, having learned of the appointment, remonstrated against it, affirming that the act of assembly applied as well to the law department of the city as to others and denying the power of the city solicitor to lawfully make the appointment except in the manner prescribed by the act. Personal conferences and correspondence followed but no agreement being reached the controller was notified to honor no warrants for the salary of Linton and that official determined to take no action until the situation was cleared up.

The city solicitor then informed Linton that his right to' ré^ ceive compensation for his services would likely be contested and the latter, concluding he could hot afford to take such a risk, quit the service of the city and found other employment. This was about the middle of September and the amount then due to him, at the salary fixed, was $246.50. He never brought any action against the city to determine whether or not it was legally liable for the payment of this sum.

By an ordinance of the city councils, duly approved by the mayor, on March 2, 1907, there was appropriated, inter alia, “to pay bills of Robert Linton, two hundred and forty-six dollars and fifty cents.” This bill was then filed by the appellant, a citizen and taxpayer, praying for a decree declaring Said appropriation void and restraining the fiscal officers of the city from paying out the money therein called for. A preliminary injunction having been denied, this appeal was taken, and as there is no seriously disputed question of fact involved, a stipulation has been filed that we are to dispose of the case as if the appeal had been taken after final decree. ' ■

The appellant rests his case primarily on the proposition that at the time of the appointment of Linton, the act of 1906 was in full force and effect, and the power of appointment, vested in the city solicitor, was not lawfully exercised and raised no liability, on the part of the city, to pay for any services rendered by the appointee and that, as a consequence, the act of councils appropriating, for such a purpose, money contributed by the appellant and other taxpayers, should be restrained. The appellees answer that the city solicitor’s power of appointment was not controlled by the act, not only upon the broad ground taken by that official at the time — viz. that the status of his office under the Bullitt bill, ás construed in Com. ex rel. v. Fitler, 147 Pa. 288, was not intended to be changed by the act of 1906,— but also for the reason that the commission had not then formulated any rules and regulations concerning appointments in that office and had them approved by the mayor, until which time, the act did not, by its own terms, become operative.

But it is further and more strongly argued that even if the appointment of Linton were technically illegal, the city nevertheless received the full benefit of his services and thereby was raised a moral obligation,-if not a legal one, to pay for the services, and this moral, obligation furnished a secure foundation upon which the subsequent, voluntary action of councils may rest. It must be manifest that if this contention be sound, the question of the original validity of the appointment ceases to be of controlling importance in the disposition of the case before us.

A moral obligation may have its birth at the same instant and in the same transaction with a civil one, but may continue in undiminished vigor long after the civil one has ceased to exist. In a multitude of familiar instances our civil law has recognized the existence of such moral obligation as a proper incentive to and a sufficient consideration for a new undertaking, act or promise from which a new legal liability will arise. When an individual, against whom no legal duty can be asserted, recognizes the force of the still existent moral obligation and acts accordingly, his conduct is deemed praiseworthy, not blameable. We can see no apparent reason why a number of men, living as a community, should not be spurred to action by the promptings of a civic or public conscience with the like result.

It may be that the city solicitor, in attempting to secure for the city services which she needed, committed an error of judgment in determining the mode by which those services should be obtained. But it is not denied that he succeeded in obtaining them and that they were just as valuable to the city as if the line and letter of the law had been observed in the appointment of the clerk who rendered them. If, under such circumstances, the city itself,, acting through its councils, sees fit to recognize the facts that the services were rendered and were valuable and therefore ought to be paid for, even though there were no legal obligation cpnstraining such payment, we can see no proper ground for the interference of a court of equity to prevent such action.

But apart from the force of the reasoning we have thus briefly sought to indicate we think the propriety of applying the principle stated to the facts of the present case, has been conclusively settled by the Supreme Court in Bailey et al. v. Philadelphia, 167 Pa. 569. In that case one Miss Sherry had been elected by the sectional school board as supervising principal of a school in the city and began the performance of the duties of that position. The board of education refused to confirm her election or certify her name on the roll of teachers to the city controller. She,- claiming that her title was complete by the action of the sectional board, brought suit, by mandamus, to compel such a certification of her name by the general board as would enable the controller to legally issue warrants for her salary. Her claim of right was determined adversely to her both in the court below and in the Supreme Court. By that adjudication every alleged legal right of action against the city was destroyed. Her claim included not only payment for services actually rendered, the benefit of which the city had received, but also for the period during which she regularly tendered performance but was unable, by reason of the a-ction of the school officials, to actually render any services.

With matters in this condition the city councils inserted, in the regular appropriation to the board of education, an item to pay “the amount of salary in dispute” to Miss Sherry; but the board refusing to draw a warrant, the item was transferred, by ordinance, to another appropriation. Thereupon a bill was filed by a taxpayer to restrain the payment of the money. It seems manifest to us that in several aspects the facts, thus stated, furnished more grounds for the interposition of a taxpayer than can be found in the case before us. The following language, from the opinion of Mr. Justice Mitchell, appears to us to cover every material phase of the case before us, and to take away every foundation upon which the present bill is sought to be rested.

“This appropriation is on the face of it, to pay for services rendered. Whether it is accurately called salary or not is unimportant. Nor is it material that the services may not have included all the work of a supervising principal for the full period. That was not Miss Sherry’s fault. She held herself in readiness to perform, and if councils had a right to compensate her at all, the amount was within their discretion so long as it was exercised in good faith and without abuse. Miss Sherry not only held herself ready to render the services, but claimed the right to do so. That right depended on a question of authority under the law between the sectional school board and the board of education, and the real contest in the matter was between those two bodies and was fought over Miss Sherry’s head. For that she was not responsible. . . . Undoubtedly the legal claim of Miss Sherry was at an end when this ordinance was passed. She had no right which could have been enforced by action. But it does not follow that her claim was without merit. The committee of councils reported, on the contrary, after investigation, that it was founded on services rendered under claim and color of right and title, and was meritorious. Does the law prohibit the city from recognizing the moral obligation arising from these circumstances? We do not find anything that compels us to so hold. A moral obligation in law is defined as one 'which cannot be enforced by action but which is binding on the party who incurs it, in conscience and according to natural justice,’ and again, a 'duty which would be enforceable by law, were it not for some positive rule, which, with to general benefit, exempts the party in that particular instance from legal liability: ’ 15 Am. & Eng. Ency. of Law, 716. In this state it is held that such an obligation will sustain an express promise to pay, and, a fortiori, an actual payment: Hemphill v. McClimans, 24 Pa. 367; Stebbins v. Crawford County, 92 Pa. 289; Leonard v. Duffin, 94 Pa. 218; Brooks v. Bank, 125 Pa. 394; Holden v. Banes, 140 Pa. 63; Kelly v. Eby, 141 Pa. 176. If a mere promise to pay under such circumstances would be enforced by law against an individual, certainly an actual payment, or its equivalent, an order by the councils on their ministerial officer who has no duty in reference thereto but obedience, should be sustained against a municipal corporation.- Councils it is true are trustees and the law limits their expenditure of public money to public purposes, but they are also representatives of their constituents, and delegates of the city’s legislative powers, and there is nothing in the law or in sound public policy to prohibit the city from being honest, and paying its bona fide debts' which are good in conscience and justice, though for sufficient other reasons, there is a general rule which prevents them from being enforceable by law,”

The able counsel for the appellant seeks to distinguish his case from the one cited on the theory that the appointment in the present case was illegal, forbidden by the statute, nay, perhaps, even a misdemeanor, and from such an act no moral obligation could arise.

We may concede, arguendo merely, that if the learned city solicitor made an honest error of judgment in his construction of the act, no legal liability on the part of the city would be thereby created; or even that if he wilfully violated the provisions of the act of 1906, he could be convicted of a misdemeanor under section 24. But we can see nothing either immoral or illegal in the appointee, acting on the advice and judgment of his chief, rendering services that were valuable to the city, nor in the latter subsequently recognizing the existence and the value of those services.

We are obliged to conclude, therefore, that the learned court below was right in refusing the injunction prayed for, and under the terms of the stipulatioii filed, the bill must be dismissed.

Bill dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Orlad y, J.,

license: Public Domain

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

      Common carriers — Carriers of live stock — Liability for negligence — Contract.

    A contract containing a stipulation limiting a carrier’s liability for negligence, if made in one state, but with a view to its performance in one or more other states, will be construed in accordance with the law where the negligent breach, causing an injury, occurs. Although such a limitation of liability is prohibited in Pennsylvania, yet the courts of this state will enforce the stipulation if the injury has occurred in a state where the contract is valid; but if the injury has taken place ( within the limits of Pennsylvania, the courts here will declare the contract null and void.

      Where a shipper undertakes the duty of feeding and watering a carload of mules and starts with the car for that purpose, but at a divisional point where a new train is made up becomes separated from the car and fails to find it before it has started, and thereafter the carrier fails to feed and water the animals, except at one point where it was improperly done, and as a result some of the mules are dead when the car reaches its destination, and others are injured so as to depreciate their market value, the question of the carrier’s negligence, and of the shipper’s contributory negligence in losing track of the car at the divisional point, are for the jury.
    Argued May 5, 1908.
    Appeal, No. 221, April T., 1908, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1906, No. 77, on verdict for plaintiff in case of Russell S. Stewart v. Baltimore & Ohio Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for loss on shipment of live stock.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for 1984. Defendant appealed.

      Errors assigned were answers to points quoted in the opinion of the Superior Court.

      W. H. Koontz, with him J. G. Ogle, for appellant.
    When, in an action to recover for property (live stock) lost in transit, it does not appear in evidence that the loss resulted from such an injurious accident, the presumption of negligence on part of defendant, does not arise and the burden of proving it remains with the plaintiff: Penna. R. R. Co. v. Raiordon, 119 Pa. 577; Fairchild v. R. R. Co., 148 Pa. 527; Buck v. R. R. Co., 150 Pa. 170; Allam v. R. R. Co., 183 Pa. 174; Roos v. R. R. Co., 199 Pa. 378; Crary v. R. R. Co., 203 Pa. 525; Needy v. R. R. Co., 22 Pa. Superior Ct. 489; Grieve v. Illinois Cent. R. R. Co., 9 Am. & Eng. R. R. Cases (N. S.), 669; Hart v. Penna. R. R. Co., 112 U. S. 331 (5 Sup. Ct. Repr. 151); Leh v. R. R. Co., 30 Pa. Superior Ct. 396.

      Ernest 0. Kooser, for appellee.
    Appellee contends this is a case for application of the rule that a contract releasing a common carrier from liability for its own negligence, is no defense: Powell v. R. R. Co., 32 Pa. 414; Penna. R. R. Co. v. Henderson, 51 Pa. 315; Willock v. R. R. Co., 166 Pa. 184; Schaeffer v. R. R. Co., 168 Pa. 209; Trace v. Penna. R. R. Co., 26 Pa. Superior Ct. 466; Rowdin v. R. R. Co., 208 Pa. 623; Trexler v. B. & O. R. R. Co., 28 Pa. Superior Ct. 198; Rhymer v. R. R. Co., 27 Pa. Superior Ct. 345; Eckert v. R. R. Co., 211 Pa. 267; Hughes v. R. R. Co., 202 Pa. 222.
    In the absence of a special provision in the contract of shipment, the carrier is bound to feed and water live stock being transported by it, at proper intervals along the route; and it will be liable for loss or injury occurring to the stock on account of its failure to do so: Wabash R. R. Co. v. Thomas, 222 Ill. 337 (78 N. E. Repr. 777); 7 L. R. A. (N. S.) 1041; Toledo, etc., Ry. Co. v. Hamilton, 76 Ill. 393; Ill. Cent. R. R. Co. v. Beebe, 174 Ill. 13 (50 N. E. Repr. 1019); Abrams v. Milwaukee, L. S. & W. Ry. Co., 87 Wis. 485 (58 N. W. Repr. 780); Missouri, etc., Ry. Co. v. Leibold, 55 S. W. Repr. 368.
    Even where such duties are expressly assumed by the shipper, ■ the carrier is still bound to furnish him proper facilities and opportunities for attending to his stock; and is liable for losses resulting from failure to do so: Dawson v. St. Louis, etc., Ry. Co., 76 Mo. 514; Mobile, etc., R. R. Co. v. Mullins, 70 Miss. 730 (12 So. Repr. 826); German v. R. R. Co., 38 Iowa, 127.
    If the carrier is aware that no one is accompanying the animals to care for them, his duty to give them proper attention is the same as though no contract for care by the shipper had been made: Chicago, etc., Ry. Co. v. Slattery, 107 N. W. Repr. 1045; Wallace v. Ry. Co., 133 Mich. 633 (95 N. W. Repr. 750); Heller v. Ry. Co., 109 Mich. 53 (66 N. W. Repr. 667); Chicago, B. & Q. Ry. Co. v. Williams, 61 Neb. 608 (85 N. W. Repr. 832).
    If the plaintiff has even been guilty of neglect in abandoning the train, it was still the duty of the carrier to take every reasonable precaution to preserve the stock and to minimize the damage: Chouteaux v. Leech, 18 Pa. 224.

      October 12, 1908:
   Opinion by

Orlad y, J.,

The plaintiff, a dealer in stock, delivered to the defendant company at East St. Louis, 111., in the afternoon of December 19, 1904, twenty-two mules for shipment from that point to Somerset, Pa., where they arrived in the morning of December 24, when it was found that four of the mules were dead, a fifth died soon thereafter, and the others were in such bad condition that their market value was depreciated about twenty-five to thirty per cent.

The plaintiff was familiar, through eight years of experience as a shipper of stock, with the methods adopted by this railroad company, and, as stated by the agent of the defendant company, gave personal instructions for their shipment and consignment, as well as the manner in which he desired the car to be prepared on account of the inclement weather then prevailing. The train left East St. Louis about 4:30 p. m. and was accompanied by the plaintiff until they arrived at Cincinnati the following day about four o’clock in the afternoon. This was a division terminal point of the railroad, where the engine and caboose were detached, and an east-bound train was made up with a new engine and caboose attached. After making diligent inquiry of employees at the yard office of the company he continued his search of the east-bound train at different parts of the stock yards and feeding places at Cincinnati from between five and six o’clock in the afternoon until eleven o’clock that night. He then went to a hotel for the night, and returned about five o’clock in the morning, and made further inquiry for the train at the yard master’s office of the company, and was told that they .could not account for its departure unless the company took it around the yards. He then asked, “How am I to get back home?” To which reply was made, “The only thing I can tell you to do is to go home and get your agent there to wire after your stock.” In other words, send a tracer for the car. He returned direct to Somerset by passenger train, and through the local agent of the defendant company made his inquiries.

The mules arrived at Pittsburg in alleged good condition on December 23, at six o’clock in the morning, and were there given an unlimited supply of water and 350 pounds of hay, when they were again put into the car for transportation to Somerset at seven o’clock, and arrived as before stated on December 24, in the morning.

After having been fed at East St. Louis, December 19, they were not again fed until their arrival at Pittsburg on the morning of December 23. It further appears that the company makes provision for supplying feed and water for the stock at designated places where the shipper is furnished feed for which a charge is made by the company and the cost is attached to the freight waybill as an item of advanced charges. When the car arrived at its destination, freight charges amounting to $99.00 and $7.50 advanced charges for feed at East St. Louis, and $5.25 advanced charges for feed at Pittsburg Junction were demanded by the company before delivery, and payment thereof was made by the plaintiff.

It is conceded that provision is made for feeding and watering stock at Columbus, Ohio, where the train arrived at 11:35 December 21, and at Newark, Ohio, at 12: 30 p. m. of the same day. That at that time the waybill did not show when the stock in transit had last been fed and watered. There is no complaint as to the character of the car or of any of the methods or appliances of transportation. The contention of the plaintiff being that the damage he suffered was due to the negligence of the railroad company in not feeding and watering the stock between St. Louis and Pittsburg, and in the reckless and careless manner of feeding and watering them at Pittsburg. Their appearance at Somerset was described, by a number of witnesses, as being “gaunted,” “withered” “all drawn up and starved looking.”

The important questions involved are in the points and the answers of the court thereto, as follows:

“That is it is competent for a common carrier to limit its liability, except for its negligence, and if the plaintiff is entitled to recover it can only be for the fixed valuation in the contract.” Answer: “As this point is written, we refuse it.”
“That by the terms of the contract, defendant’s exhibit No. 1, it was provided as follows: That said shipper is at his own sole risk and expense to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with referíame thereto except in the actual transportation of the same. And the plaintiff having accompanied the train as far as Cincinnati, Ohio, where it arrived at 4:25 p. m. on the 20th of December, 1904, and the car containing said mules was taken to the stock yards at six o’clock p. m. and left the stock yards at Cincinnati at 8:15 p. m. on the 20th of December, 1904, a period of three hours and fifty minutes after its arrival at said stock yards, during which time the plaintiff did not attend to feeding and watering said mules, but went to bed, and the next morning took a passenger train for his home at Somerset, Pa., he was guilty of contributory negligence, and the verdict must be for the defendant.” Answer: “This point is refused.”

4. “ The plaintiff cannot recover unless the death of the mules is attributable to the fault of the defendant. If the defendant company was- partly in fault, but if the plaintiff could have prevented their death by traveling with and feeding and watering the mules, as he undertook to do by the terms of his written contract (defendant’s exhibit No. 1) he cannot recover.” Answer: “I have said to you and I affirm this point so far that the plaintiff cannot recover unless the defendant was guilty of negligence, and the plaintiff free from contributory negligence, but I refuse to say, though, that as this point implies under the circumstances it was the duty of the plaintiff to travel with and feed and water the mules, but submit to you whether he, under all the circumstances in the case, was guilty of contributory negligence in not so doing. If he was he cannot recover, and in that sense the point is affirmed.”

5. “Under all the evidence and the law in the case, the verdict must be for the defendant.” Answer: “This point is refused.”

The contract in question is entitled “Uniform Limited Liability Live Stock Contract for Baltimore and Ohio Southwestern Railroad Company,” which company, it is admitted, is under the management of the defendant company, and contains the clause in regard to which the défendant asked specific instructions, as above quoted.

It was held in Hughes v. Penna. Railroad Co., 202 Pa. 222, that where a contract containing a stipulation limiting liability for negligence, is made in one state, but with a view to its performance, by transportation through or into one or more other states, we see no reason why it should not be construed in accordance with the law of the state where its negligent breach causing the injury, occurs. If such clause comes under construction in a state like Pennsylvania whose policy prohibits such exemption (limited liability) and the injury has occurred in a state where the contract is valid, the stipulation will be enforced as in Forepaugh v. Railroad Co., 128 Pa. 217, and in Fairchild v. Railroad Co., 148 Pa. 527. But if the injury has taken place within its limits, it will declare the contract null and void, as in Burnett v. Railroad Co., 176 Pa. 45. This authority is decisive of the question of limited liability under the facts of this case.

It is uncontradicted that the plaintiff gave direct orders in writing to the conductor of the train from St. Louis to Cincinnati to have the stock fed at Cincinnati, and it is admitted that this was not done at that place, nor at either of the other places named above where facilities for so doing were provided by the railroad company, before reaching Pittsburg, so that the mules were furnished feed and water but once during the Í10 hours they were in the care of the defendant company. That the limitation of the common carrier’s liability by a special contract does not relieve the carrier from liability for his own negligence has been frequently stated by our courts: Penna. Railroad Co. v. Miller, 87 Pa. 395; Penna. R. R. Co. v. Raiordon, 119 Pa. 577; Needy v. R. R. Co., 22 Pa. Superior Ct. 489.

It is conceded that the mules were delivered to the railroad company in good condition and that when they arrived at Somerset five were dead and the others were seriously affected as to their market value by reason, as testified to by a number of witnesses, from lack of food and water, and these facts were properly considered along with the other evidence by the jury. No explanation being offered by the defendant as to the cause of their condition when they were delivered to the plaintiff: Buck v. Railroad Co., 150 Pa. 170; Crary v. Lehigh Valley R. R. Co., 203 Pa. 525.

As stated by Judge Williams in Willock v. Penna. R. R. Co., 166 Pa. 184, the carrier and the shipper do not stand on equal terms. The latter cannot afford to refuse that which the carrier demands as a condition of the transportation of his goods. The rule that stipulations, insisted on by carriers or other persons who stand in such a position towards their customers as enables them to compel compliance with their demands or destroy their customer’s business, should be judged of by their fairness and be held void whenever they are unreasonable or oppressive, is one of very general acceptance. In such cases the injury to the contents of the car itself may furnish an inference of want of ordinary care in transportation: American Express Co. v. Sands, 55 Pa. 140; Grogan v. Adams Express Co., 114 Pa. 523; Trace v. Railroad Company, 26 Pa. Superior Ct. 466; Rowdin v. Penna. R. R. Co., 208 Pa. 623; Trexler v. B. & O. R. R. Co., 28 Pa. Superior Ct. 198.

Conceding that the duty of feeding and watering the mules was expressly assumed by the shipper, yet the carrier is still bound to furnish proper facilities and opportunities for attending to his stock, and under the facts of this case, it must have been known to the carrier that no person accompanied this car to attend to the feeding and watering of the mules, and then it became their duty to give them proper attention the same as though no contract for care by the shipper had been made. Whether or not the shipper was guilty of contributory negligence in not being with the mules after leaving Cincinnati, was purely a question of fact, and under the undisputed proof the caboose in which he came from St. Louis was detached from the train at Cincinnati and the detached train moved to a different part of the yard, and so made up with a new engine and caboose that even the employees in the yard master’s office did not know of its location. Under the admitted facts and viewed in the light of the plaintiff’s testimony that he made active and continued search for the train during the evening and early the next morning, the jury were fully warranted in finding that he was not guilty of contributory negligence in becoming separated from the car, and that the shipper was fully justified in acting on the advice of the yard master to go by passenger train to Somerset, and have the agent of the defendant company trace the car from that point: Wabash R. R. Co. v. Thomas, 222 Ill. 337; 7 L. R. A. (N. S.) 1041.

The first six assignments of error, relating to the ruling of the court on special items of evidence, are not material to the disposition of the case, and counsel for appellant frankly concede that the real question must be determined on the answers to the point, as hereinbefore quoted. All controverted questions of fact having been settled adversely to the appellant, and the question of law alone being the subject of review here, we are of the opinion that the judgment must be affirmed.


author: Beaver, J.,

text:
    Chartiers Creek Bridge.

      Bridges — County bridges — Crossing of highway — Substitution of one bridge for another — Act of June 13, 1836, secs. 35 and 37, P. L. 551.
    There is no authority under secs. 35 and 37 of the Act of June 13, 1836, P. L. 551, to construct a county bridge over a stream in substitution of an older bridge at a point 500 feet from the latter, where there is no highway on either side of the stream, where it will be necessary to construct lofty approaches aggregating 1,000 feet in length, and where a borough street will have to be extended to connect with the bridge.
    Argued April 17, 1908.
    Appeal, No. 167, April T., 1908, by R. C. Johnston, frond order of Q. S. Allegheny Co., Dec. T., 1906, No. 5, sustaining exceptions to report of viewers In re Bridge across Chartiers Creek.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Ford, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order sustaining the exceptions.

      W. H. S. Thomson, of Thomson & Thomson, for appellant.—
    The act of assembly under which this bridge is located, is adequate in its provisions to meet á situation such as that presented here: Com. v. Loomis, 128 Pa. 174; Penn Twp. v. Perry County, 78 Pa. 457; Somerset v. Stoystown Road, 74 Pa. 61; Palo Alto Road, 160 Pa. 104; Appeal of Youghiogheny Bridge, 182 Pa. 618.

      John Marrón, of Marrón & McGirr, with him Garnet Speer and Boht. F. Clever, for appellees.
    October 12, 1908:
   Opinion by

Beaver, J.,

It is sought, by proceedings alleged to be authorized by secs. 35 and 37 of the Act of June 13,1836, P. L. 551, to change the county bridge over Chartiers creek, 150 feet in length, which connects a road thirty-three feet wide common to Sheraden borough and Chartiers township, at the terminus of Windgap avenue in the latter, with a road on the northern side of the creek which is common to Stowe township and McKees Rocks borough, these four municipalities joining about the middle of the said bridge, and substitute therefor a bridge and viaduct 1,207.5 feet in length, beginning at the junction of Windgap and Youghiogheny avenues in Chartiers township and ending at the center of Singer avenue in the borough of McKees Rocks. The proposed bridge across Chartiers creek is about 350 to 400 feet up the stream from the old bridge and seventy-five feet above its level, and is connected by stone and steel structures on both sides thereof with the proposed termini in the borough of McKees Rocks and Chartiers township, as stated.

It would appear, from the elaborate and satisfactory draft of the localities involved, and the profile of the proposed bridge, which is furnished us in the appellant’s paper-book, as though the improvement, as a whole, were not only important but advantageous and desirable, and would, for various reasons, including the overhead crossings of the railways, accommodate the travel between these populous sections in a much more satisfactory way than the previous- grade crossing of one railroad and low subway of the other on different sides of the creek.

The serious question in the case, however, is whether or not such an improvement is authorized under the provisions of secs. 35 and 37 of the Act of June 13, 1836, P. L. 551, under which the proceedings are confessedly conducted. Under the liberal interpretation which we placed upon these sections in the Youghiogheny River Bridge case, 2 Pa. Superior Ct. 265, it would be possible perhaps to make such a radical change as is proposed here, but our Supreme Court did not agree with us in that interpretation, and, in 182 Pa. 618, gave a much narrower construction to the act in question, by which we'are, of course, bound, and in the light of which we must view the present proceedings.

The official draft prepared by the viewers, which accompanies their report, and a copy of which is attached to the appellant’s paper-book, shows that the old bridge, sought to be replaced by the one proposed by the viewers, was common, as already stated,'to Sheraden borough, Chartiers township, Stowe township and McKees Rocks borough. The new bridge would connect Chartiers township and McKees Rocks borough, leaving Stowe township and Sheraden borough without any connection therewith. The present'bridge was connected by a road extending from the south side of the creek to the line of Sheraden borough and Chartiers township at the terminus of Wind-gap avenue in the latter about 350 feet. On the north side of the creek was a public road common to Stowe township and McKees Rocks borough, running almost directly east. It is riot shown that the proposed road connects in any way with this road at the northern terminus of the old bridge.' So far as the draft shows, and so far as it appears from the record, there is no connection between the northern terminus of the proposed road on Singer avenue arid the old road along the creek, except by a detour which passes under the railroad by the subway which it is sought to eliminate by the proposed bridge and viaduct.

The viewers’ report: "That the above designated points are the most suitable places for the erection, of said bridge in the best manner, and for such purpose we have found it necessary to change the course, location and bed of the road to be connécted therewith as follows: 'Beginning at the intersection of the centre lines of Chartiers Avenue with Singer Avenue in the Borough of McKees Rocks; thence south eighteen degrees, thirty minutes west, ten hundred forty-nine and seventy one-hundredths (1,049.70) feet to the centre line of Windgap avenue in Chartiers Township, where the same makes an angle in front of lot No. 3 in Samuel A. Duff’s Plan of lots as recorded in Plan Book, Volume 16, page 97; thence along the centre line of said Windgap Avenue, south twenty-three degrees, ten minutes west, one hundred fifty-seven and eighty one-hundredths (157.80) feet to the intersection of said centre line with the centre line of Youghiogheny Avenue, the centre line of the proposed bridge coinciding for its entire length, with the centre line of the road above described. We recommend that the width of said road, as changed, be fixed at fifty feet.’ ”

The appellant invokes the aid of the Act- of March 24, 1905, P. L. 50, providing for the erection of county bridges over any river, creek or rivulet forming the boundary between any borough and township of the first or second class, where the same crosses a public highway. It is to be observed, however, that the language of this act is precisely that of sec. 35 of the act of 1836 above referred to: “That, when any river, creek or rivulet forming the boundary between any borough and township of the first or second class, over which it may be necessary to erect a bridge, crosses a public road or highway.” This language refers to the original erection of a bridge. Does it authorize the substitution of one bridge for another already erected? No provision is made for the vacating of the road leading to the bridge or for the removal of the bridge itself, as is done in the case of roads in secs. 18, 19 and 20 of the same act. Provision, it seems to us, would, or at least should, have been made in the law, if such a proceeding as is before us had been contemplated by the legislature. At the point where the new bridge is contemplated there is no highway on either side of the creek. We cannot see, therefore, how the bridge can be said to cross a highway between a borough and township of the first class, as contemplated in the act of 1905, supra. Was it contemplated by the legislature that the county was to be made liable for a bridge, whose proper length is 150 feet at the crossing of the stream, and viaducts more than 1,000 feet in addition, carried on an expensive stone and steel structure, crossing two railroads and two or more public roads at an elevation of from fifty to seventy-five feet above the stream and the valley which borders it on both sides, and this directly over the roof of the house of one of the exceptants? If such an extraordinary power was intended to be conferred by the act of assembly, it should be distinctly so stated therein.

■ Assuming, however, that by a liberal interpretation of the legislation referred to, we could find authority in the law for the substitution of one bridge for another, what is to be done with the old bridge, for which the new one is substituted? There seems to be no provision in the law for such an emergency and, if there were, the viewers have done nothing whatever with the old bridge and the roads which it connects on the different sides of the stream. Shall the bridge be abandoned and the roads vacated? By what authority? We find nothing in the law which authorizes it, and there is certainly nothing in the report of the viewers which, if confirmed by the court, would relieve the commissioners and the township and borough authorities from the duty of maintaining both bridge and roads.

The exceptions sustained by the court below, upon which its final order was made, are:

“Second: There is no statute in Pennsylvania authorizing the location and erection of the bridge recommended by the Viewers’ Report.
“Third: The court is without jurisdiction under the law to approve the Viewers’ Report in this case recommending the location and erection of the proposed bridge, for the reason that the real location and erection of the said bridge does not connect the road crossed by Chartiers Creek and originally connected by the bridge which the Viewers’ Report proposes to relocate and .construct.
“Fifth: That the proceeding in this case is without any law in that it proposes the condemnation and taking of private property, and the construction of the bridge is remote and unconnected with the original bridge crossing Chartiers Creek.”

These several exceptions were sustained by the court bel-ow, are separately assigned, and constitute the first, second and third assignments of error. The fourth alleges error in dismissing the proceedings, and the fifth in not dismissing the second, third and fifth exceptions and in not confirming the viewers' report.

In the original opinion of the court below, dismissing the proceedings, it was said: “The proposed bridge is intended to replace the old bridge, and is located about five hundred feet westwardly from the site of.the present bridge. The bridge is intended to be an overhead structure, and with approaches is about one thousand feet in length (actually over 1,200). The approach on the northerly side is in extension or prolongation of Singer Avenue, and passes over private property for about four hundred feet. The approach from the southerly terminus is a relocation of Windgap Avenue, and extends over private property a distance of about four hundred feet.

“In re Bridge over Chartiers Creek in McKees Rocks Borough and Chartiers Township, at No. 2, December Sessions, 1902, the viewers recommended a bridge over Chartiers Creek between Windgap Avenue at its intersection with Youghiogheny Avenue in Chartiers Township to Singer Avenue, at its intersection with Chartiers Avenue, in McKees Rocks. The bridge recommended by the yiewers, as to location, termini and approaches, was the same as proposed in these proceedings.

“Young, J., in sustaining the exceptions, said:
“‘It seems to be an attempt by the Borough and Township to do the very thing condemned in Youghiogheny Bridge, 182 Pa. 618, viz., to project and cross this river (creek) by a new highway, a street at the expense of the county.’
“In Youghiogheny Bridge, 182 Pa. 618, the court, in construing sec. 35 of the Act of June 13,1836, P. L. 551, says:
“ ‘The section referred to, by its express words, refers to roads and highways crossed by rivers and creeks between adjoining townships. It does not intimate a jurisdiction in this particular to authorize the erection of county bridges, so as to prolong or extend the street of a borough. . . . We do not hold that under this act a highway between two adjoining boroughs crossed by a river could not be bridged by the county; what we hold is that as the very base, of the proceedings there must exist, in a reasonable sense, and within the sense of the act, at the inception of the proceedings, a highway to be bridged, not one existing in the imagination or on paper.’
“Between the borough line and the intersection of Singer Avenue and Chartiers Avenue there is no highway to be bridged, and it will be necessary to prolong or extend Singer Avenue or to lay out a new road or highway if the proposed bridge is erected.”

For the reasons stated by the court below, as well as the additional ones mentioned herein, we are of opinion that the action of the court in dismissing the proceedings, on the ground that there was no statute in Pennsylvania which authorizes them, was correct.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Eastman v. Washington & Canonsburg Railway Company, Appellant.

      Negligence — Street railways — Crossing track — Conflicting testimony.

    In an action against a street railway company to recover damages for personal injuries, a verdict and judgment for the plaintiff will be sustained where the evidence is conflicting, as to whether the plaintiff was struck by a street car, standing still at the time he commenced to cross the track on a siding on which it was standing, which was suddenly started without warning, or whether he was struck by a car passing upon the main track at the moment he attempted to cross it, and which he must have seen.
    In such a case where the two conductors and the two motormen are called to contradict the plaintiff’s story which is supported only by his own testimony, and but one of the witnesses squarely and directly contradicts the plaintiff, and that only after a prompting by the defendant’s attorney, the trial judge is not called upon to make any comment in his charge upon any numerical preponderance of the testimony on behalf of the defendant. Hodder v. Philadelphia Rapid Transit Co., 217 Pa. 110, distinguished.
    Argued. April 21, 1906.
    Appeal, No. 88., April T., 1908, by defendant, from judgment of C. P. Washington Co., May T., 1906, No. 60, on verdict for plaintiff in case of W. F. Eastman v. Washington & Canonsburg Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Taylor, J.
    The opinion of the Supreme Court states the case.

      Errors assigned were (1) in refusing binding instructions for defendant, and (3) that the charge as a whole was inadequate.

      John H. Murdoch, with him Edward B. Murdoch, for appellants,
    cited: Hodder v. Transit Co., 217 Pa. 110; Bank v. Wirebach, 106 Pa. 37; Bornscheuer v. Traction Co., 198 Pa. 332.

      H. L. Williams, of Mcllvaine & Williams, for appellee,
    cited: Boggs v. Pitts., etc., Ry. Co., 216 Pa. 314; Howard Express Co. v. Wile, 64 Pa. 201; Matthews v. R. R. Co., 18 Pa. Superior Ct. 10; Dormer v. Paving Company, 16 Pa. Superior Ct. 407; Whaley v. Citizens’ National Bank, 28 Pa. Superior Ct. 531.
    October 12, 1908:
   Opinion by

Beaver, J.,

The issue in this case was clearly defined, definitely accepted by both 'parties, and presented a single question, which was undoubtedly for the jury: Was the plaintiff struck by a street car, standing still at the time he commenced to cross the track on the siding upon which it was standing, which was suddenly started, without warning, and by which he was struck upon the left shoulder, or was he struck by a car passing upon the main track at the moment he attempted to cross it? It seems to have been practically conceded by both sides on the trial that, if the plaintiff’s statement that a car at rest when he started to cross the track was put in motion without warning, before the track was crossed, and he was injured thereby, was true, the company was negligent and he was entitled to recover, but if after passing the siding he attempted to cross the main track in front of a moving car which he saw and was immediately injured thereby, as claimed by the defendant, he would be guilty of contributory negligence and would not be entitled to recover.

A careful reading of the testimony convinces us that the motion for a nonsuit when the plaintiff’s testimony closed was properly refused, as was also the'fifth of the defendant’s points, that “Under all the evidence in the case the verdict should be in favor of the defendant,” the answer to which was, “Refused, the case is one for the jury under all the evidence.” If this answer was correct, the court was also justified in refusing the motion for judgment non obstante veredicto upon the whole record and in directing judgment to be entered for the plaintiff, against the defendant, on the verdict.

The court’s refusal of the fifth point and also of judgment n. o. v. for defendant constitute the first and second assignments of error.

All of the defendant’s points, except the fifth, were unqualifiedly affirmed.

The third assignment is: “The charge of the court, as a whole, was inadequate, in that no instruction was given to the jury to guide them as to the weight to be given to the testimony and the numerical preponderance of the testimony on behalf of the defendant.” Under this specification, the entire charge is assigned for error, and the argument upon it is based upon the assumption that the plaintiff, alone and unsupported, testifies to the facts attending his injury, which is not questioned, and that four witnesses, the motormen and conductors of the two cars, contradict the plaintiff and agree in that contradiction.

If the facts were as assumed, the authority relied upon by the defendant, Hodder v. Philadelphia Rapid Transit Co., 217 Pa. 110, might apply, but the facts of that case and the one under consideration differ so materially that we do not see any fair application of the one to the other. The syllabus of the case cited contains a fair statement of the testimony of the witnesses in regard to the principal fact in dispute, as it appears in the opinion of the Supreme Court, and is as follows: “In an action against a street railway company for personal injuries, where the plaintiff testifies that she was injured by the sudden starting of a car when she was attempting to alight from it, while at rest, and her evidence is directly contradicted by the conductor, motorman and four passengers, all of whom had equal opportunity with the plaintiff to know what the actual fact was, the numerical inequality in the support given the one side and the other by the witnesses is a proper subject of judicial comment, and to minimize the effect of such inequality, so as to make what is said on the subject prejudicial and misleading, is reversible error.”

In this case, we have the unequivocal declaration that the car by which the plaintiff was injured was the one standing upon the siding when he attempted to cross, which was put in motion without notice to him, before he had effected the crossing. The motorman of the car alleged by the plaintiff to have caused the injury was called as a witness. When he was brought, in his examination by the defendant’s attorney, to the crucial point of the case, he was asked: “Now, did you move forward that night until after that car was inside the switch point?” to which he answered, “Not that I remember of.” The remark was then made by the defendant’s attorney, who was examining him, “Well, now I want you to remember,” and his answer then was, without any consideration of statement which recalled the facts to his remembrance, “Well, I am sure, I didn’t move the car.” This, to say the least, was a most unsatisfactory way in which to lead the witness to a denial of the express statement of the plaintiff.

The testimony of the motorman of the car going west upon the main line ih regard to this point was: “ Q. Where was the east-bound car when you entered the switch point? A. It was laying in Franklin street switch. Q. Laying in the switch? A. Yes, sir. Q. Have you any recollection about what its location was? A. No, sir, I believe it was about the usual stopping place though. Q. Did, or did not, that car move forward before you entered the switch point? A. I can’t say. Q. Did it move forward in any way to interfere with your entering the switch point? A. No, sir.”

The conductor of the car, alleged by the plaintiff to have caused the injury, was not very explicit as to the location of the car, did not see the plaintiff before he was hurt and, in answer to the question, “Did you see him at all that evening?” said, “No, sir, I didn’t see him at all that night.”

The testimony of the conductor of the car going west upon the main track, although he helped the plaintiff upon his car, in his examination in chief, was as follows: “ Did you notice the east-bound car any place near the Franklin siding, as you went down?' A. No, sir, I did not. Q. Is it your duty to notice the cars that you are meeting? A. No, sir. Q. Where was that car, when your attention was first called to it, .when you first noticed it? A. Well, they were passing it there, we pulled up and I couldn’t tell, I didn’t pay any attention whether the car was moving or not, just pulled up there and made a stop. Q. Where did your car stop ? A. Well, I didn’t notice whether it was in the regular place or not, but it was near there. Q. Did you notice whether or not the other car was in motion as you came up? A. I did not. Q. You saw it on the siding? A. Yes, sir.”

It is to be noticed, therefore, that the only witness who directly contradicted the plaintiff was the motorman of the car which he alleged had caused his injury, and that contradiction arose only upon the sharp intimation of the defendant’s attorney, in view of his witness’s unsatisfactory answer, “Well, now I want you to remember.” The court below commented upon this testimony in a way which, in our opinion, gave to it quite as much weight as that to which it was entitled.

The grocer, from whom the plaintiff had just parted at the door of his store,, was called as a witness. He was, at the time of the trial, in the employ of the defendant, but he does not contradict the plaintiff’s testimony as to the car which struck him and caused his injury. With the exception of the testimony of the motorman, Markley, there is no testimony which, in our opinión, directly contradicts that of the plaintiff, and his does so only after the prompting above referred to, and upon this testimony the court makes full and fair comment.

If the court below, under such circumstances, had called attention to what is called the numerical preponderance of the testimony of the defendant, as the appellant' claims should have been done, and the verdict had been different, the plaintiff would, in our opinion, have had greater reason for complaint than has the appellant here. The court below gave sufficient consideration to the testimony of the defendant, and left the question as to the manner in which the plaintiff’s injury was received fairly to the jury.

We regard the case as having been fairly presented to the jury from the standpoint of the defendant, and the charge cannot be fairly characterized as inadequate.

The assignments of error are all overruled.

Judgment affirmed.


author: Head, J.,

text:
    Taylor, Appellant, v Erie City Passenger Railway Company.

      Street railways — Consent of owner — License as to switches — New needs of the public — Exhaustion of license.

    Where an owner of land abutting on a road consents to the occupation of the road by a street railway, and licenses the company “to occupy and extend their line of railway with the necessary turnouts and operate the same along said road,” the company does not exhaust its license by building a switch 253 feet long, but may subsequently extend the same to a length of 360 feet, if it appears that such extension is not unreasonable under the circumstances and is demanded by the growth of the community.
    The state in creating a corporation such as a street railway company contemplates that the development of the physical property by such corporation, of the means and appliances by which it works out the objects for which it is created, will keep pace with the growth of the community, and the ever-increasing demands of the people it is to serve. So long as such a corporation confines itself within the boundary delimited in its charter, and usurps no power withheld by the state or granted to others, it cannot be said to have exhausted its own powers of development because the facilities first adopted or constructed and then sufficient, turned out, later on, to be inadequate to enable it to respond to the demands of a growing section of the country.
    Where a landowner licenses a street railway to “occupy and extend their line of railway with the necessary turnouts and operate the same along ” a road named, the license after the construction of the railway becomes irrevocable.
    Argued April 13, 1908.
    Appeal, No. 119, April T., 1908, by plaintiff, from decree of C. -P. Erie Co., Feb. T., 1906, No. 2, dismissing bill in equity in case of Matthew H. Taylor et al., Trustees under the Will of -William L. Scott, deceased, v. The Erie City Passenger Railway Company and Erie Electric Motor Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Walling, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree dismissing the bill.

      Frank Gunnison, with him John S. Billing and Henry E. Fish, for appellant.
    The a-ppellees having constructed their railway with a number of switches, of the length prescribed by the decree of the court, their license was exhausted and they had no authority to increase their encroachments on the highway afterwards by lengthening the switch in question: Bostock v. Sidebottom, 16 Jur. 1013; Onthank v. Lake Shore, etc., R. R. Co., 71 N. Y. 194; Evangelical Lutheran, etc., Home of Buffalo v. Buffalo Hydraulic Assn., 64 N. Y. 561; Roberts v. Roberts, 55 N. Y. 275; Allen v. Land & Water Co., 15 Lawyers’ Rep. Annotated, 93; Trustees, etc., of Southampton v. Jessup, 10 App. Div. Rep. 456; Gilmore v. Wilbur, 29 Mass. 120; Hill v. Hill, 113 Mass. 103.
    At common law a license could be revoked at any time even if money had been expended upon the faith of it: Wood v. Leadbitter, 13 Mees. & Wels. 838; 16 Eng. Ruling Cases, 449.
    The common-law doctrine that a license can be revoked even though followed by an expenditure of money, has been followed in many states: Crosdale v. Lanigan, 129 N. Y. 604 (29 N. E. Repr. 824); Houston v. Laffee, 46 N. H. 505; 18 Am. & Eng. Ency. of Law (2d.), 1146, note 7; Blaisdell v. Portsmouth, etc., R. R. Co., 51 N. H. 483, cited in 12 Am. Law Register (N S.), 258; Jackson & Sharpe Co. v. R. R. Co., 11 Am. Law Register (N. S), 374.

      J. M. Sherwin, with him S. A. Davenport, for appellees.—
    The original grant made by plaintiff to defendant' contemplated the growth and enlargement of defendant’s railway: Rafferty v. Traction Co., 147 Pa. 579; Willis v. Ry. Co., 188 Pa. 56; Pottsville v. People’s Ry. Co., 148 Pa. 175; Philadelphia etc., R. R. Co. v. Williams, 54 Pa. 103; Cleveland, etc., R. R. Co. v. Speer, 56 Pa. 325; Pittsburg Junction R. R. Co.’s App., 122 Pa. 511; People’s Pass. Ry. Co. v. Baldwin, 14 Phila. 231; Phila. v. Ridge Ave. Pass. Ry. Co., 143 Pa. 444; Alden’s App., 93 Pa. 182.
    It is not only the privilege, but the bounden duty of the defendant to use modern, up-to-date cars, longer than the cars used when trolley lines were first projected, and to operate them according to modern methods, requiring a switch 360 feet long: Millvale Boro. v. Evergreen Ry. Co., 131 Pa. 1.
    The Supreme Court has already twice repudiated the alleged revocation: Willis v. Ry. Co., 188 Pa. 71; Taylor v. Ry. Co., 212 Pa. 487.
    No damages whatever to the plaintiff will result from the construction of the proposed extension; whereas the traveling public and defendant will sustain great inconvenience, damage and delay if a switch of only 252 feet is used.
    October 12, 1908:
   Opinion by

Head, J.,

None of the testimony taken at the hearing in this case is before us because all of the parties have accepted the conclusions of fact adopted by the learned trial judge. From these we have taken such, facts as seem to us to be necessary to an orderly development of the questions involved.

As early as 1889 the defendant railway company, which for some years had been operating a line in the city of Erie, was duly authorized to build an extension along the Lake road through Mill Creek township to Trinity cemetery. The source of that authority was primarily the charter granted to the company by the state. The powers therein conferred, however, could become effective only when supplemented by the consent of the local township authorities and the owners of the land abutting on the highway. These obtained, the company, in 1889, built a single track line along Lake road from the city to the cemetery, and in the following year carried the terminus some distance northward from that road to a summer resort called “ The Head.” Between the date when, construction began and the spring of 1893, the defendant, in the operation of its line, had found it necessary to build five switches or “ turn-outs ” along the Lake road between the city and cemetery, but they were, as the court below finds, “ of unequal distances apart and of insufficient length, and not intended as the permanent switches of the railway.” One of these was known as the “blacksmith switch.” It was built 253 feet long and at a point on the line where the land, on both sides of the highway, had belonged to the late Hon. W. L. Scott. He, with other property owners, had been a party to the “ license ” or “ consent ” given to the company in 1889 “to occupy and extend their line of railway with the necessary turn-outs and operate the same along said Lake Road.” His title, after his death in 1891, became vested in the present plaintiffs.

In 1897 the plaintiffs undertook to revoke the license or con- • sent given by Mr. Scott “so far as the construction of any new sidings, turn-outs, switches or the lengthening or extension of any . . . . already laid or constructed are concerned.” In 1905 or 1906 the defendants were about to so extend the “blacksmith switch ” as to make its entire length 360 feet instead of 253 feet, when this bill was filed to restrain them from so doing. The court below refused the injunction prayed for and dismissed the bill and hence this appeal.

The relative importance of this switch in the defendants’ line and the practical necessity of increasing its length as stated in order to avoid annoying delays to the traveling public, are clearly set out in the seventh and eighth conclusions of fact.

The plaintiffs, however, plant their case upon the two propositions, (a) that the powers conferred by the “license” of Mr. Scott, had previously been worked to exhaustion and consequently the right to further lengthen a switch or turn-out could not be claimed thereunder; and (b) that, as to the proposed extension, the license had not been executed prior to 1897, so that the revocation of it at their pleasure was their right and, by their exercise of that right, the defendants were shorn of any warrant, under the license, to make the proposed extension.

We cannot, we think, profitably undertake the consideration of these questions until we have first ascertained how far, if at all, their solution is controlled or affected by the two cases of Commissioners of Mill Creek Twp. v. Erie City Pass. Railway Co., 188 Pa. 56, and Taylor et al. v. Erie City Pass. Railway Co., 212 Pa. 487.

As early as 1893, the defendants, having then in operation their single track line of railway with five switches, as stated, undertook to extend each one of those switches to the length of 1,000 feet. Thereupon the township authorities, alleging that such extensions were unreasonable and unnecessary and, in effect, a disguised attempt to double track their line along Lake road, to the increased danger of the public traveling thereon otherwise than in the cars, filed a restraining bill and obtained a preliminary injunction. To that bill the plaintiffs never became parties. Whilst the cause was pending the road commissioners also undertook to revoke the consent or license previously granted by them so as to make it inoperative to authorize any construction or extension of switches, etc., not theretofore begun. They were then in a position to urge upon the court both of the propositions now contended for by the present plaintiffs and seem to have done so. The court held that by the building of the line on Lake road the license had become irrevocable; that the powers of the licensee in relation to switches or turn-outs had not been exhausted but that the extension of each switch to the length of 1,000 feet would be unreasonable and unnecessary and would amount to an abuse of the powers granted; that five switches, each of the length of 360 feet, if properly located, would give to the defendant company all necessary turn-outs. A decree was entered so modifying the preliminary injunction, theretofore granted, as to permit defendant to relocate all of its switches, if it chose, and to make each one of the length of 360 feet; but directing that “as soon as any of said switches are relocated and constructed the present switches, so far as thus supplied, shall be removed from the street.” Both sides appealed, but the decree was affirmed in a brief opinion by Chief Justice Sterrett.

Had the attempted revocation by the commissioners been effective in law to confine the powers of the company to the maintenance and operation of such switches as then existed and to prevent any increase in their number or length, the decree could never have been made. That revocation was in the same form, made at the same time, prompted by the same conditions and intended to accomplish the same object, as the one now under consideration. We must therefore regard the decision of the Supreme Court, affirming the decree of the court below, as an authoritative disposition of a question “on all fours” with that now before us, and following, as it does, a long line of cases, of which Rerick v. Kern, 14 S. & R. 267, is a leading and familiar one, it forces the conclusion that the position of the present plaintiffs, in this respect, is untenable.

After the termination of this litigation, which had covered a period of some years, the defendant relocated some of its switches, making them a uniform length of 360 feet. It built an entirely new one, called the “Harmon switch,” and the learned court below has affirmed the plaintiffs’ request for a finding that this switch “was designed to replace the ‘blacksmith switch.’ ” Looking at the other findings of fact adopted by the court — particularly the seventh and eighth — it can hardly be said that such new construction accomplished the object for which it was designed, because the relative importance of the “blacksmith switch” to the system of the defendant and the practical necessity for its continued existence, do not appear to have been lessened thereby. That the road commissioners must have taken this view is indicated by their course in making no effort to enforce their decree to the extent of causing the removal of that switch and, later on, formally authorizing an increase of its length to 360 feet.

The present plaintiffs then, in 1905, filed a bill praying for a decree that the switch should be removed as an incumbrance, no longer lawful, upon their property. In the court below their prayer was denied and their bill dismissed. An appeal followed: Taylor v. Railway Co., supra. Had the Supreme Court affirmed this decree merely on the technical ground that the plaintiffs, having been no parties to the proceeding resulting in the former decree, could not be heard to demand its enforcement, the case would demand no further consideration from us. But that court, we think, clearly expressed the conviction that the plaintiffs had shown no equity to invite interference, by a chancellor, in the continued maintenance and the use of the “ blacksmith switch” by the defendant, and the decree dismissing the bill was affirmed.

It has been determined, then, that the plaintiffs have no power to lop off this important member of the defendant’s system of railway. Upon what principle may they strike it with a blight and deprive it of the capacity for such reasonable development and growth as may be necessary, so that the whole body corporate may better accomplish the ends for which it was called into being? We know of none.

In Dunmore Boro. v. Scranton Ry. Co., 34 Pa. Superior Ct. 294, we endeavored to show that the state, in creating corporations like the defendant railway company, must have contemplated that the development of the physical property of such corporation, of the means and appliances by which it worked "out the objects for which it was created, would keep pace with the growth of the community and the ever increasing demands of the people it was to serve.

That, as a consequence, so long as such a corporation confined itself within the boundaries delimited in its charter and usurped no powers withheld by the state or granted to others; it could not be said to have exhausted its own powers of development because the facilities first adopted or constructed, and then sufficient, turned out, later on, to be inadequate to enable it to respond to the demands of a growing section of the country. See also Keller v. Water Co., 34 Pa. Superior Ct. 301; Pottsville v. People’s Ry. Co., 148 Pa. 175.

It was such a corporation, then perhaps in its infancy but endowed with the vital principle of growth, to which the plaintiffs’ ancestor gave the license to construct its railway track “ with the necessary turn-outs.” He did not see fit to undertake to limit the number or length of such “turn-outs.” So long as they were increased in either way, only in response to the growth of the community, presumably he saw no reason to limit them seeing in that growth the consideration for the grant he made. Against any arbitrary or unreasonable or unnecessary increase of such switches he was protected by the law. The blacksmith switch ” was built under the power he conferred. He must have contemplated that the company could, under that power, build the switch to any. reasonable length required by the demands of its traffic. It was not obliged to exercise all of its power, in this respect, at once.

The extension of this important switch to the length contemplated is in no sense unreasonable, it is no abuse of the power conferred by Mr. Scott, it is forbidden by no law, it will serve the public convenience, aid the defendant in the quick and safe transportation of large numbers of people and will not cause any actual damage to plaintiffs’ property.” Under such circumstances we can see no safe foundation upon which a court of equity could rest such a decree as is sought by this bill.

Decree affirmed and bill dismissed at costs of appellants.


text:
    Price v. National Accident Society, Appellant.

      Insurance — Accident insurance — Death—Violent, external and accidental cause — Voluntary exposure to danger — Evidence—Burden of proof —Classification of risks — Railroad conductor — Passenger.
    Under a policy insuring against death caused solely by external, violent and accidental means, evidence that the insured was found dead between the tracks of a railroad near a station, with his left foot severed from the body, establishes a prima facie ease, and casts the burden of proof upon the insurer to show that death resulted from the doing of an unlawful act, or from a voluntary and unnecessary exposure of the deceased to danger or to the obvious risk of danger,— risks not within the terms of the policy.
    Where the insured in an accident policy, a shifting passenger conductor on a railroad, is killed after his day’s work is done, and while riding as a passenger on a train, the indemnity payable is to be determined not according to his occupation, but according to the fact that he was a railroad passenger, a less dangerous position under the classification of risks set forth in the policy.
    Argued April 16, 1908.
    Appeal, No. 153, April T., 1908, by
    defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. Term,' 1904, No. 988, for plaintiff on case tried by the court without a jury in suit of Elizabeth Price v. National Accident Society.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance.
    The case was tried by Evans, J., without a jury under the act of April 22, 1874. The court entered judgment for the plaintiff.

      Error assigned was in entering judgment for plaintiff on case stated.

      Warren J. Seymour, of Seymour, Patterson & Siebeneck, for appellant.
    The death was the result of voluntary exposure: Glass v. Masons’ Fraternal Accident Assn., 112 Fed. Repr. 495; Alter v. Union Casualty & Surety Co., 108 Mo. App. 169; Follis v. U. S. Mut. Accident Assn., 94 Ia. 435; Tuttle v. Ins. Co., 134 Mass. 175; Small v. Travelers’ Protective Assn., 118 Ga. 900; Metropolitan Accident Assn. v. Taylor, 71 Ill. App. 132; Willard v. Accident Assn., 169 Mass. 288 (47 N. E. Repr. 1006); Phila. & Reading R. R. Co. v. Schertle, 97 Pa. 450; Trout v. Turnpike Road, 216 Pa. 119; Green v. Pittsburg, etc., St. Ry. Co., 219 Pa. 241.
    Price was killed while violating the law: Duram v. Accident Ins. Co., 63 Vt. 437 (22 Atl. Repr. 530).

      Frank W. Stonecipher, with him John M. Ralston, for appellee,
    cited on the question of voluntary exposure to unnecessary danger: Dougherty v. Ins. Co., 154 Pa. 385; Standard Life, etc., Ins. Co. v. Thornton, 100 Fed. Repr. 582; Hill v. Cent. Accident Ins. Co., 209 Pa. 632.
    Cited on the question of the amount of judgment; National Accident Society v. Taylor, 42 Ill. App. 97; Fox v. Accident Assn., 96 Wis. 390.

      October 12, 1908:
   Opinion by

Beaver, J.,

The insured, for whose death under a policy issued by the defendant, recovery was sought in this case, was found between tracks Nos. 3 and No. 4 of the Pennsylvania railroad near and east of the Wilkinsburg passenger station, with his left foot severed from the body, which was some distance beyond the foot, covered with snow. When taken to the hospital, he was suffering from “a compound fracture of the frontal bone on the left side and left leg crushed off, and was suffering from severe shock.” Counsel for the defendant admitted “that the cause of his death was violent and external.”

The case was submitted for trial by the court, without a jury, under the provisions of the Act of assembly of April 22, 1874, P. L. 109. Under the terms of admission, it was agreed: “That the notes of testimony heretofore taken on October 22, 1906, at the former trial of the above-entitled case, shall be the testimony offered in behalf of the plaintiff, together with the policy and classification of exposures and occupations referred to in the testimony as exhibit 1.” In addition to the testimony, these facts were agreed upon: “George Price was employed by the Pennsylvania Railroad Company as shifting conductor, with duties at the Union Station in the City of Pittsburg, Pa. His home was in Wilkinsburg, Pa. On the night of December 25, 1903, he worked during the night as usual. A train left the Union Station at Pittsburg on the Pennsylvania railroad for Wilkinsburg shortly after Price stopped working at the Union Station on the morning of . the 26th of December, 1903. This train stopped a short distance west of Wilkinsburg. Shortly after this, an east-bound train passed the point on another track. Shortly thereafter, George Price was found by Walter W. Smith, as testified to in the former trial.

“ Counsel agree that the court shall draw all inferences from the testimony and these facts which a jury might draw.

“ Counsel further agree that the court shall decide the case on two questions:

“1. Is there sufficient evidence from which a jury could find a verdict for plaintiff? If the court so finds for the plaintiff, then
“2. Under the policy and classification of exposures and occupations, what is the amount of damages?”

The court found for the plaintiff, fixing the damages at $1,000, the amount payable under the policy to the insured, in class A, which with interest constitutes the amount of the judgment.

There is a single assignment of error:

“The court erred in entering the following order: And now November 30, 1907, it is hereby ordered that judgment be entered for plaintiff for the sum of $1,210 and costs.”

It is assumed in the argument of the appellant, and also of the appellee, that this assignment of error covers both branches of the case.

The appellant directs his argument to the proposition that there was not sufficient evidence from which a jury could find a verdict for plaintiff as well as that the amount of the judgment was in excess of what could be legally recovered under the classification in the policy.

Under the testimony and the admissions, it is clear that the deceased, for whose death recovery is sought under the policy, met his death from “the effects of bodily injury caused solely by external, violent and accidental means,” in which event the policy provides, “ Or, if death shall result to the insured from such injuries alone within thirty days from the happening thereof, the Society will pay the sum of $1,000.00 to Elizabeth Price, wife, if surviving, or in the event of her prior death, to the legal representatives of the insured. Except, that if the insured shall be fatally, or otherwise injured, while temporarily or otherwise engaged in doing any act or thing pertaining to any occupation or exposure rated or classified as more hazardous than Preferred or Class A, and not herein specifically mentioned as not being covered, the insurance, weekly indemnity or specific indemnity shall be only for such sum as the premium paid will purchase at the rate fixed by said Society for such increased hazard, in accordance with the Classification of Occupations and Exposures of the Society in use at the time of the injury, as per the table printed hereon.”

It is admitted that the deceased, who was a passenger shifting conductor, discharging his duties at night, had stopped his work at the Union Station on the morning oh which his body was found. It seems to be assumed that he was upon the train which left the Union Station at Pittsburg on the Pennsylvania railroad for W lkinsburg shortly after his period for work had ceased. This being so, he occupied the place of any other passenger upon that train and was not engaged in such hazardous occupation as subjected him to the limitations of the class in which his employment placed him, one of the conditions of the policy being, “First. The insured is permitted to travel as a passenger by regular lines of passenger conveyance anywhere throughout the civilized world.” If he was entitled to recover, therefore, we are of opinion that the court was correct in fixing the amount at $1,000, the maximum amount to be recovered under the policy.

Could a recovery be lawfully had under the facts as admitted and proved, and such as can naturally be inferred from all the circumstances of the case?

The policy expressly provides that, “This insurance shall not extend to or cover disappearance .... nor death or disability when caused .... either directly or indirectly, wholly or in part, from any of the following acts, causes or conditions, or while so engaged or affected, viz.: .... either voluntary or unnecessary exposure to danger or to obvious risk of injury .... while violating the law.”

Among the conditions attached to the policy, it is provided, that, “This policy will be in. force only for the term mentioned in the last renewal receipt signed by the Secretary.” The appellant alleges that there is no sufficient evidence of the payment of the quarterly premium which continued the policy in force covering the time when the accident occurred, but the testimony of the plaintiff and of her brother, who forwarded the premium, clearly establishes the fact that the premium was paid on or about November 17th, continuing the policy in force for three months thereafter.

The right to recover, therefore, depends upon whether or not the defendant was, at the time of the accident, doing an unlawful act, or was voluntarily and unnecessarily exposing himself to danger or to obvious risk of injury.

As preliminary to the main question, it is important for us to determine whether or not it was incumbent upon the plaintiff to show, in addition to the payment of the premium which continued the policy in force and the death by violent, external and apparently accidental cause, which constituted a prima facie case, that the death of the deceased was not caused by “ either voluntary or unnecessary exposure to danger or to obvious risk of injury,” or “while violating the law.” In other words, upon whom does the law impose the burden of proving the excep- ' tional circumstances in such a case which relieved the defendant of liability? If, in establishing the facts necessary to a recovery, namely, that the death of the deceased was caused by violent, external and accidental circumstances, it had been shown, either affirmatively or by necessary inference, that the deceased, either voluntarily or unnecessarily, exposed himself to danger or to obvious risk of injury, or that he was violating the law, in the sense in which that term is used in the policy, we are of opinion that recovery under the policy would be barred; but if such voluntary exposure or unlawful act is not affirmatively shown by the testimony, or by necessary .inference from the circumstances and the other facts referred to, namely, the death by violent, external and accidental means, clearly appear, then in our opinion the plaintiff has established a prima facie case, and it is incumbent upon the defendant to establish, by the preponderance of evidence, the exceptional conditions under which recovery will not be allowed, under the terms of the policy. The appellant argues that the only inference which can be drawn from the circumstances under which the body of the deceased was found is that the deceased voluntarily exposed himself to unnecessary danger and was also engaged in an unlawful act, and that, therefore, the court was bound to say, as a matter of law, that there could be no recovery. In our opinion, it was for the jury to draw from the circumstances of the case the inference as to the manner of the death, inasmuch as there was no positive testimony in reference thereto. The way passenger train, upon which the deceased is assumed to have been a passenger, was stopped west of the station at Wilkinsburg and the Penn Street crossing. His body was found east of the station and of the crossing, with his left foot severed from the body and separated from it by some distance. A jury might infer, and the inference is as natural as any other, that he had left the train upon which he is supposed to have been a passenger, had reached the station and was crossing the track at the regular crossing, when overtaken by the east-bound passenger train which struck him and carried his body to the point at which the severed foot was found, and the remainder of his body where it was found, covered with snow, some distance farther east. The court, was therefore, justified in finding affirmatively the first proposition submitted — that there is sufficient evidence from which a jury could find a verdict for plaintiff, unless it were also to find that it was incumbent upon the plaintiff to show affirmatively that the exceptional conditions set forth in the policy which prevented a recovery did not exist. In our opinion, the weight of authority is decidedly against such a proposition. The plaintiff was not bound to prove a negative. If the evidence of the plaintiff presented a case which did not necessarily involve the existence of the exceptional conditions under which recovery was expressly barred, the burden was upon the defendant, by the preponderance of evidence, to show that those exceptional conditions actually existed. There being no testimony offered by the defendant, this burden was not assumed and certainly not successfully carried.

As to the burden of proof, see Dougherty v. Pacific Mut. Life Ins. Co., 154 Pa. 385. “Under a policy insuring against death from such violent and accidental injuries as shall externally be visible on the body, and which alone cause death, evidence that the insured was found dead and mangled on a railroad track, establishes a prima facie case, and casts the burden of proof upon the insurer to show that death resulted from a violation of some of the conditions in the policy specially pleaded in defense : ” Meadows v. Pacific Mut. Life Ins. Co., 50 Am. St. Rep. 427 (129 Mo. 76). In a note to this case, on page 441, after reciting what constitutes a prima.facie case: “To prevent such recovery, the burden of proof is upon the insurer to show that the death arose from one of the excepted causes enumerated in the policy:” Anthony v. Mercantile Mut. Accident Assn., 162 Mass. 354; 44 Am. St. Rep. 367; Cronkhite v. Travelers’ Ins. Co., 75 Wis. 116; 17 Am. St. Rep. 184; Coburn v. Travelers’ Ins. Co., 145 Mass. 226; Mallory v. Travelers’ Ins. Co., 47 N. Y. 52; 7 Am. St. Rep. 410; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661; Home Ben. Assn. v. Sargent, 142 U. S. 691. “If an accident insurance policy excludes liability for injury to the insured caused by his voluntary exposure to unnecessary danger, the burden of proof is upon the insurer to show that the injury is within the excepted cause: ” Follis v. U. S. Mut. Acc. Assn., 58 Am. St. Rep. 408 (94 Iowa, 435). “If it appears that a passenger on a railway train, intending to alight at a crossing, left his seat while the train was running, went to the steps, and, descending them, stood on the lower, holding the railing with both hands, and he was next seen acting as if he was going to step down another step, and next holding the railing with one hand, and being dragged, the jury is authorized to find that his resulting injuries were accidental.” “The burden of proof” (in such case) “ is on the defendant to show that an accident causing death resulted in whole or in part, from voluntary exposure to unnecessary danger:” Smith v. Ætna Life Ins. Co., 91 Am. St. Rep. 153.

The appellant insists that the place at which the body was discovered clearly indicates that the deceased was a trespasser upon the railroad and, as such, was committing an unlawful act, and that the plaintiff is thereby necessarily prevented from recovering, under the terms of the policy. It does not necessarily follow that, because the body of the deceased was found some distance east of the railway station and of the regular crossing, that he was, therefore, a trespasser. It is unnecessary, therefore, for us to determine, as a matter of law, the question as to whether or not, his body being upon the right of way of the railroad when found, the insured was engaged in such an unlawful act as is contemplated in the exception in the policy which prevents recovery. As we view the case, therefore, the court below was justified in finding, under the testimony, the facts agreed upon in the submission of the case and the admission of the defendant, “That the cause of death was violent and external,”, that there was “sufficient evidence from which a jury could find a verdict for plaintiff.” As already intimated, the duties of the occupation of the deceased, as a passenger shifting conductor, having ceased for the day, and his presence at the place of the accident showing that he was on his way homeward, as a passenger upon a regular train, he was entitled to the full amount of the indemnity provided for in the policy, and the amount of the judgment was, therefore, in accordance with its terms.

Judgment affirmed.


author: Porter, J.,

text:
    Foster, Appellant, v. Passerieux.

      Bond — Penalty—Principal and surety — Judgment.
    Where a bond given by a married man to his wife, is in a penal sum with a warrant of attorney to confess judgment, and contains a condition that the husband shall pay his wife a certain sum per month, but contains no condition that the surety shall pay such sum per month, and judgment is entered for the penal sum, the surety can only be held on executions, to the payment of such penal sum, and no more.
    Argued April 22, 1908.
    Appeal, No. 193, April T., 1908, by plaintiff, from order of C. P. Washington Co., Nov. T., 1902, No. 158, staying execution in case of Frank Foster (now R. L. McCarrell) in trust for Margaret Passerieux v. John Passerieux and August Yalentour.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Demurrer to petition for stay of execution. Before Mc-Ilvaine, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order staying execution.

      Boyd Crumrine, with him E. E. Crumrine, for appellant.—
    In a judgment entered upon a bond with a condition, whether after a trial or on a confession, the obligation to be enforced is to be found in the condition, which contains the contract between the parties with the terms upon which the obligation may become null and void. The obligation imposed by the condition is not merged in the judgment, although the bond as a cause of action is merged. The obligation in the condition remains; its performance is secured by the judgment, and the judgment is a judicial decision that the plaintiff may enforce the contract for performance contained in the condition by execution process, with the incident of lien until performance. The judgment gives the remedy; the obligation in the condition measures the extent of the liability: Blystone v. Blystone, 51 Pa. 373.
    In the case of a condition to perform several things, it has been held that the obligee may recover as often as a breach occurs, even exceeding the penalty. And generally, where it is the clear intention of the parties that the amount of the penalty shall not be the limit of liability: Ellis v. Sanders, 34 So. Car. 236; Lowe v. Peers, 4 Burr. 2225; New Holland Turnpike Co. v. Lancaster County, 71 Pa. 442; Ahl v. Ahl, 60 Md. 207; Silverthorn v. Hollister, 87 Pa. 431; Vogel v. Hughes, 2 Miles, 379; Com. v. De Burt, 7 Pa. Superior Ct. 230.

      Norman E. Clark, with him Winfield Mcllvaine, for appellee.
    —It is well-settled law that in cases like the present one, the party complaining of a breach of condition has his election-to bring an action to recover upon the contract or to bring an action upon the bond for the penalty: Turnpike Co. v. Lancaster County, 71 Pa. 442; Hughes v. Hughes, 54 Pa. 240; Silverthorn v. Hollister, 87 Pa. 431.
    October 12, 1908:
   Opinion by

Porter, J.,

This is an appeal by the plaintiff from an order of the court below staying an execution, upon the ground that the full amount of the.judgment, upon which it issued, had been collected from the defendant, August Valentour, upon previous executions on the same judgment. John Passerieux and August Valentour, on March 3, 1894, executed and delivered to a trustee for Margaret Passerieux, the wife of John, a bond in the penal sum of $500, with warrant of attorney to confess judgment for said sum with five per cent attorney’s fees for collection. The bond recited an agreement ■ between John Passerieux and Margaret, his wife, “whereby they shall and will live separate and apart from each other, on the payment to said Margaret Passerieux by the said John Passerieux of the sum of thirty dollars on the signing of the within bond and the sum of ten dollars per each calendar month thereafter, beginning April 2, 1894, for the support and maintenance of the said Margaret Passerieux, so long as she shall live;” and the condition of the bond is to the same effect, that John Passerieux shall and do well and truly pay to Margaret Passerieux, her trustee, or anyone appointed by her, “the sum of thirty dollars on the signing of this obligation and the sum of ten dollars on the first day of each and every calendar month thereafter, commencing April 2, 1894, .... so long as the said Margaret Passerieux shall live .... then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue.” The appellant contends that, judgment having been entered under the warrant of attorney contained in the bond, in the sum of $525, the amount of the penalty and attorney’s commissions thereon, this' judgment merely stood as security for the collection of the installments as they became due; that when executions were issued on this judgment they wére issued not for the collection of the penalty, but for the monthly installments due on the agreement of Passerieux to pay, and that upon this ground he can continue to collect from Yalentour, by successive executions, as long as the appellant lives. The question, therefore, is: Can Valentour be held legally liable on this bond for an amount in excess of the penalty?

“There is a difference between covenants in general and covenants secured by a penalty or forfeiture. In the latter case the obligee has his election. He may either bring an action of debt for the penalty and recover the penalty (after which recovery of the penalty he cannot resort to the covenant, because the penalty is to be a satisfaction of the whole), or if he does not choose to go for the penalty, he may proceed upon the covenant and recover more or less than the penalty toties quoties.” This language of Lord Mansfield, used in Lowe v. Peers, 4 Burr. 2225, is quoted with approbation in New Holland Turnpike Co. v. Lancaster County, 71 Pa. 442, by Justice Sharswood. The Turnpike Co. v. Lancaster County, was an action of covenant, and the bond set forth in full the covenants- of the defendant, and it was held that in an action upon the covenants there might be a recovery in excess of the amount of the penalty named in the bond. Where there is a contract for the performance of certain, things and the party binds himself in a penalty, for the performance, the party complaining of the breach of such contract has his election either to bring debt for the penalty or case for the breach of contract, and in the latter case may recover even beyond the amount of the penalty in damages: Dick v. Gaskill, 2 Wharton, 184. And so where an individual gives his bond in a penalty, conditioned upon his paying a debt in a smaller amount, at a fixed time, with interest, and judgment is not recovered upon the bond until the amount of the debt and interest exceeds the penalty, there may be a recovery in excess of the penalty: Hughes v. Hughes, 54 Pa. 240. In all of these cases the action was brought for the debt, or directly upon the contract to pay, and not for the recovery of the penalty.

The defendant, Valentour, the appellee, had entered into no contract which required him to make the monthly payments to the wife of Passerieux; the recital of the agreement between the parties in the bond contains no suggestion of any such engagement upon his part, nor was any action or payment by him required to satisfy the condition of the bond. The contract, as recited, and the condition of the bond required that Passerieux alone should pay. All that Valentour undertook to do was to be liable for the penalty, in case Passerieux did not pay according to the condition of the bond. While Passerieux made the monthly payments, there was no breach of the condition. After the breach Valentour could discharge himself only by the payment of the penalty: Silverthorn v. Hollister, 87 Pa. 431.

• Judgment in this case was entered under the warrant of attorney contained in the bond, that it was entered for the penalty and the attorney’s commissions thereon would seem to be too clear to require extended argument. The warrant of attorney did not authorize the entry of a judgment for anything but the penalty and attorney’s commissions, and the bond within which the warrant was embodied did not bind Yalentour for anything beyond that amount. The entry'of the judgment, on October 10, 1902, exhausted the warrant and no second judgment could subsequently lawfully be entered under it. The attempt of the attorney of the plaintiff, on October 11, 1902, to inflate the judgment by filing a prtecipe with the prothonotary was a failure. When, in 1902, Valentour attacked the judgment all the parties had a full opportunity to be heard, and the decree of January 25, 1904, was a judicial determination that the judgment was entered for the penalty, and attorney’s commissions thereon, amounting to $525. This was a final decree, and if plaintiff was not satisfied an appeal ought to have been taken within the time prescribed by the statute. When executions were from time to time issued on this judgment they were issued to enforce the liability for the penalty. They could not have legally issued, on this judgment, to collect anything but the penalty. Valentour has paid on such executions the amount for which he was liable, with interest and costs, and his liability is discharged. The learned judge of the court below fell into no error when he stayed this writ.

The order of the court below is affirmed, and the appeal dismissed at cost of appellant.