text:
    Thompson v. Delaware, Lackawanna & Western Railroad Company, Appellant.

      Negligence — Infant—Contributory negligence — Question for jury.

    1. In an action to recover damages for the death of a child seven years old, the case is for the jury where the evidence as to contributory negligence of the custodian of the child at the time of the accident, is conflicting.

      Negligence — Infant—Parent and child — Illegitimate child — Act of July 10, 1901, P. L. 639.
    2. Since the Act of July 10, 1901, P. L. 639, the mother of an illegitimate child is entitled to recover damages for the negligent killing of the child by the act of another.
    3. While statutes which give a right to the personal representative or next of kin of a deceased to recover for tortious acts of others, should be construed strictly, yet inasmuch as they are remedial in providing a remedy for an obvious wrong, they should be construed liberally so as to carry into effect the remedial purpose.

      4. The effect of the act of 1901, was to confer upon an illegitimate child, as between itself and its mother all the rights and privileges of a child born in lawful wedlock. The purpose of the act was to legitimate an illegitimate child as to its mother.
    Argued Oct. 18, 1909.
    March 3, 1910:
    Appeal, No. 69, Oct. T., 1909, by defendant, from judgment of O. P. Wyoming Co., Oct. T., 1907, No. 51, on verdict for plaintiff in case of Mary Thompson v. The Delaware, Lackawanna & Western Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Affirmed.
    Trespass' to recover damages for death of an illegitimate child seven years old. Before Terry, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $779. Defendant appealed.

      Error assigned was in refusing to give binding instructions for defendant.

      E. K. Little and J. H. Oliver, with them D. R. Reese, for appellant.
    The mother of an illegitimate child has no right to recover for injuries resulting in the death of the child: Deichman v. Knecht, 11 Northampton, 231; Harkins v. R. R. Co., 11 W. N. C. 120.
    Statutes in derogation of the common law must be strictly construed: Pettit v. Fretz’s Ex’rs, 33 Pa. 118; Smith v. R. R. Co., 182 Pa. 139.

      Paul J. Sherwood, for appellee.
    By the act a child begotten out of lawful wedlock may be made as legitimate for all purposes by the subsequent marriage of the parents, as if begotten in lawful wedlock: McCausland’s App., 213 Pa. 189.
    When the legal status of parent and child is established, the right of the action attaches: Com. v. Henderson, 172 Pa. 135; Com. v. Keystone Ben. Assn., 171 Pa. 465; Com. v. Jones, 4 Pa. Superior Ct. 362.
   Opinion by

Orlady, J.,

The plaintiff recovered a verdict of $779, as damages for the alleged negligent killing of her son, aged seven years. The questions involved are, first, the right of a mother of an illegitimate child to recover for injuries sustained by the child resulting in his death, and, second, the question of contributory negligence, which may be first considered and dismissed as without having any merit. This latter branch of the Case depended upon controverted facts, and the testimony was of such a character, that under authority of Jones v. Traction Co., 201 Pa. 344; Saxton v. Railways Co., 219 Pa. 492; Addis v. Hess, 29 Pa. Superior Ct. 505; Distasio v. Traction Co., 35 Pa. Superior Ct. 406; Davis v. Railway Co,, 222 Pa. 356, it was purely a .question for the jury and not for the court to say whether the custodian of the child was guilty in any degree of contributory negligence. The fifth, sixth and seventh points submitted by the defendant were affirmed by the court, and in the general charge this phase of the case was fully and clearly brought before the jury to give proper effect to the conduct of the person who had the child in charge.

The other question is of a more serious character, and we are without direct authority in this state in regard to it. Prior to the act of July 10, 1901, the mother of an illegitimate child could not recover in such a case.

The Act of April 26, 1855, P. L. 309, provides that the persons entitled to recover damages for any injury causing death, shall be the husband, widow, child or parent of the deceased and no other relative. By the Act of May 14, 1857, P. L. 507, it is provided that in any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock, and cohabit, such child or children shall thereby become legitimated and enjoy all the rights and privileges as if they had been born during the wedlock of their parents. The next step in this remedial legislation is in the Act of April 6, 1868, P. L. 67, which provides, that all marriages theretofore contracted between parties within the degree of affinity as prescribed by act of 1860, of which issue is born, are thereby legalized, and the child or children of such marriages shall have all the rights and privileges of children born in lawful wedlock. This was followed by the Act of June 5,1883, P. L. 88, which declares that illegitimate children born of the same mother, and leaving as survivors neither mother nor issue capable of inheriting, shall have capacity to take and inherit from each other personal property as next of kin and real estate as heirs in fee simple, in the- same manner as children born in lawful wedlock. This was evidently enacted to remedy the effect of Woltemate’s App., 86 Pa. 219, in which it was held that the act of 1855 did not enable illegitimate children to inherit from each other. The act of June 14, 1897, amending the third section of the act of 1855, provides, that illegitimate children shall take and be known by the name of their mother, and they and their issue and their mother and grandmother shall respectively have capacity to take or inherit from each other personal estate as next of kin, and real estate as heirs in fee simple; and as respects said real or personal estate, so taken or inherited, to transmit the same according to the intestate laws of this-state.

Prior to 1874, a great number of private or special acts of assembly were passed, providing that certain named illegitimate children of certain named parties, “shall be legitimated, and shall have and enjoy all the rights and privileges of children born in lawful wedlock, with the right to inherit and transmit any estate whatsoever.”

The next act on the subject is the one which is vital to this case, that of July 10,1901. It is entitled an act, “to regulate and define the legal relation of an illegitimate child or children, its or their heirs, with each other,-and the mother and her heirs.” The first section is as follows: “That illegitimate children shall take and be known by the name of their mother, and the common-law doctrine of nullius filius, shall not apply as between the mother and her illegitimate child or children, but the mother and her heirs and her illegitimate child and its heirs, shall be mutually liable one to the other, and shall enjoy all the rights and privileges one to the other, in the same manner, and to the same extent, as if the said child or children had been born in lawful wedlock.” The second section provides, “The mother of an illegitimate child, her heirs and legal representatives, and said illegitimate child or children, its or their heirs and legal representatives, shall have capacity to take or inherit from or through each other, personal estate, as next of kin, and real estate as heirs in fee simple or otherwise, under the intestate laws of this commonwealth, in the same manner and to the same extent, subject to the distinction of half-bloods, as if said child or children had been born in lawful wedlock.” Section 4 is as follows: “The intent of this act is to legitimate an illegitimate child and its heirs, as to its mother and her heirs; but it is not intended to change the existing laws with regard to the father of such children, or their respective heirs or legal representatives.”

The plaintiff was originally married to a man named Ward, who died more than a year prior to the birth of her son, Willie, and after his birth she was married to her present, husband. While the action was originally brought in the name of George Thompson and Mary Thompson, the record was subsequently amended by striking therefrom the name of George Thompson, it being conceded that he was improperly joined with the mother as a plaintiff.

In construing the act of 1901 we are aided by many decisions in arriving at a proper interpretation of the legislative will; all of its parts are to be taken together, and the legislative intention so ascertained will prevail over its lit-, eral import, or its strict letter; the title may be considered, and the construction most agreeable to reason and justice shall be adopted as embodying the intention of the lawmakers, for it will not be presumed that the legislature contemplated unreason or injustice. While this is a statute in derogation of the common law, and as such it is to be strictly construed, yet it is not to be extended by implication beyond the legal- import of .the words used, so as to embrace cases or acts not clearly described by such words, or to bring them within a prohibition or penalty of such a statute. A strict construction does not mean that words will be so restricted as not to have their full meaning, and that the rule of strict construction will, not be applied with such technicality as to defeat the purpose and the true intent of meaning of the-statute. Statutes which give a right to the personal representative of a deceased for tortious acts, should be construed strictly, but on the other hand, it is just as positively held, that such statutes are remedial inasmuch as they provide a remedy for an obvious wrong, and that in this sense they-should be construed liberally. They are made to supply defects or abridge superfluities in the law, and'in construing any statute we are to keep in mind the old law, the mischief and the remedy intended; that which is within the mischief in--, tended to be remedied is considered within the statute although not within the letter, and that which is not within the mischief is not within the statute, though within the letter.

In Moritz v. Garnhart, 7 Watts, 302, the Supreme Court held that the grandfather of an illegitimate child might maintain an action on the case for the abduction of the illegitimate child of his daughter, Judge Gibson saying, “Though a bastard be not looked upon as a child for any civil purpose, the ties of nature are respected in regard to its maintenance, and can it be said, having bestowed his affection on this child and reared it by his bounty, he shall not be permitted to exercise the rights of a father to it, as against an intermeddler. It would be a reproach to the law if he should not. The stern simplicity of feudal principles is gradually bending to the more complicated relations of a milder civilization.” Prior to 1901, the right's • even of the mother of an illegitimaté child were very circumscribed.

In Bartolett v. Achey, 38 Pa. 273, it is said, the meaning of the statute if plain, is to be followed, notwithstanding, as in any other case. Strict construction is not the same thin'g as construing everything to defeat the action; this is not what is meant by the expression. In Lau Ow Bew v. United States, 144 U. S. 47, the rule is stated, “Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion,” citing many authorities. Harkins v. Phila. & Read. R. R. Co., 11 W. N. C. 120 (decided in 1881), held that the mother of a bastard child is not a parent within the meaning of the act of April 26, 1855, and cannot recover damages for. injuries resulting in his death, and this was accepted by the profession as conclusive until the act of 1901 was enacted. In Kerr v. Penna. R. It. Co., 169 Pa. 95 (decided in 1895), it was held that a married woman who had been deserted by her husband, could maim tain an action in her own name, under the acts of 1851 and 1855, to recover damages for the death of a minor child of herself and husband, Judge Fell saying, “Her legal relation to her son was the same as if her husband had been dead. It is out of this relation that the right to recover in an action for the death of a child grows. The measure of damages is the pecuniary loss sustained, and the loss arises because of the right of the parent to the child’s earnings until he is of age, or of the expectation of pecuniary advantage after the minority of the child because of the continued existence of the family relation,” and in Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419, the Supreme Court held, that if the deceased leave a husband, he alone is clothed with the right of action; if the wife is the survivor, she is entitled 'to bring suit; if there be neither surviving husband or widow,' the right of action is given to the children, and if there be neither husband nor widow nor children surviving, it is given to the parents of the deceased. This court held in Haggerty v. Pittston Borough, 17 Pa. Superior Ct. 151, that the purpose of these statutes is to make provision for members of the family of the deceased who might naturally have calculated on receiving support or assistance from the deceased had he survived. The law treats the value of the life lost as a species of property, Gulla v. Lehigh Valley Coal Co., 28 Pa. Superior Ct. 11; Cooley on Torts,* 269; North Penna. R. R. Co. v. Robinson, 44 Pa. 175, and in a case where the father brought his action to recover damages for the death of his minor daughter, who left neither mother, husband nor children to survive her, and the father died before the case had been brought to trial, the personal representative of the father was rightly substituted and could prosecute the suit.

In interpreting this statute, the question is not, Could the right of the mother of an illegitimate child to maintain the action have been, more clearly expressed? but, Do the words used clearly convey the legislative intention of her right to maintain such an action? There is no ambiguity in its provisions; it is the last step taken in a long series of enactments and adjudications, involving the samé subject-matter, and each enactment is a step forward in the direction of relief and protection for the unfortunate, mother of an illegitimate child, and of an increase of the rights of her offspring. By its very terms the old common-law doctrine of nullius filius no longer applies; the mother and her heirs, and the child and its heirs, shall be mutually liable one to the other, and shall enjoy all the rights and privileges one to the other, in the same manner, and to the same extent as if the child had been born in lawful wedlock, and the special declaration of intent is stated in unequivocal words to be, to legitimate an illegitimate child as to its mother. With this declaration of intention, can it be questioned that the object and effect of this statute was to change the status and capacity of ap illegitimate child to the status and capacity of a legitimate! child,.-and create the relation of parent and child for all purposes as if the latter had been born in lawful wedlock. These are the words used, and to our mind they can be interpreted in but one way. We held in Com. v. Gilkeson, 18 Pa. Superior ,Ct. 516, that children born prior to marriage, who have been legitimated by the subsequent marriage of their parents, are not liable to pay a collateral inheritance tax upon the estate passing from their father to them.

The last consideration of the question .by the Supreme Court is in Com. v. Mackey, 222 Pa. 613, and it is there held in referring to this act of 1901, by Judge Brown that, not only are all the rights and privileges of a child born in lawful wedlock conferred upon any illegitimate child, as between it and its mother, but these rights and privileges are to be enjoyed in the same manner and to the same extent as if the child had been born in lawful wedlock .... the expressed purpose of the act is to legitimate an illegitimate child as .to its mother, and, as a proper, logical and humane incident to such legitimation to confer upon such child every right and privilege enjoyed by a child born to wedded parents. This act was intended to apply alike to the unfortunate mother and the helpless child and to remove all legal obstructions, as between them, that had theretofore existed by reason of the illegitimacy of the child.

As said by Judge Woodward in Killam v. Killam, 39 Pa. 120, the words used by the legislature were large enough to confer all the civil rights of legitimacy, and as it was a remedial and humane law, it ought not to be cramped in the construction.

The opinion of the learned trial judge in denying the motion for judgment for the defendant, fully justifies his disposition of all the matters raised by the questions involved.

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


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Miller v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Dangerous place to work — Tunnel—Engineer—Train dispatcher — Fellow servant.

    1. In an action by a section hand of a railroad company against his employer, a verdict and judgment for the plaintiff will be sustained where the evidence shows that the plaintiff was injured while working in a tunnel, as the result of two trains being operated in the tunnel at the same time, and that plaintiff had been informed before he entered the tunnel that an order for single trains through the tunnel was in force, and that only one train at a time was permitted to pass through it. In such a case the defendant cannot set up as a defense the negligence of the engineer of the train which struck the plaintiff, in disobeying the order, where there is no evidence to show that the order, although produced in evidence, had ever been received by the train dispatcher to whom it was addressed, or communicated by the dispatcher to the engineer.
    2. Where an order is in force for several months forbidding more than one train to be operated at the same time in a double-track tunnel, an employee of the railroad company whose work is in the tunnel is entitled to notice of a change in the order which would permit trains to be operated on the two tracks in the tunnel at the same time.
    3. If the employer make a change in the method of work thereby increasing the danger of the servant, it is the duty of the employer to advise the servant of the new risk to be run, unless it is so obvious that the latter in the exercise of ordinary care may see it.
    Argued Oct. 19, 1909.
    March 3, 1910:
    Appeal, No. 203, Oct. T., 1909, by defendant, from judgment of C. P. Wyoming Co., June T., 1909, No. 50, on verdict for plaintiff in case of Arch. B. Miller v. Lehigh Valley Railroad Company.
    Before Rice, P. J., Henderson,'Morrison, Orlady, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,200. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Frank W. Wheaton, with him James Wilson Piatt, for appellant.
    The negligence was the negligence of the engineer of the work train: Benignia v. Penna. R. R. Co., 197 Pa. 384; Coyle v. Rapid Transit Co., 17 Pa. Dist. Rep. 180.

      Ernest K. Little, for appellee.
    The defendant is bound by the representations of its foreman to the men under him, concerning such matters as would affect their safety: Maines v. Harbison-Walker Co., 213 Pa. 145; Carlin v. William Butler Co., 220 Pa. 194; Burns v. Vesta Coal Co., 223 Pa. 473; Johnson v. Bruner, 61 Pa. 58; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Reese v. Clark, 198 Pa. 312; Houston v. Stamping Co., 38 Pa. Superior Ct. 93; Valentine v. Colburn Co., 10 Pa. Superior Ct. 453; Northern Pac. Ry. Co. v. Amato, 144 U. S. 465 (12 Sup. Ct. Repr. 740); Bradley v. N. Y. Cent. R. R. Co., 62 N. Y. 99.
   Opinion by

Henderson, J.,

The single specification of error complains of the action of the court in refusing the defendant’s request for judgment non obstante veredicto. The defendant’s contention in support of this motion was that the plaintiff’s injury resulted from the negligence of a fellow servant and that there was consequently no liability of the defendant. This brings up a consideration of the testimony offered in the case and we have given it a careful examination. We are unable to find therein evidence of any facts which would have justified the court in declaring the legal result asked for. The plaintiff was employed as a section hand on the defendant’s road under the section foreman who had authority to employ and discharge hands and to direct the place of their employment and the character of their work. On the day of the accident six or seven men were working by direction of the foreman in what- is known as the Vosburg Tunnel. They were fastening steel plates -on the rails of the double track in the tunnel. The plaintiff’s claim as set forth in the declaration and as shown by his testimony was that he was informed by the section foreman that an order was in effect on the road forbidding the passage of two trains through the tunnel at the same time; that when he and his fellow workmen were called upon to enter the tunnel on the morning of the day when he was hurt he asked the foreman whether the order for single trains through the tunnel was still in force and was assured by the foreman that that was the case and that only one train at a time was permitted to pass through. With this information the men proceeded into the tunnel and were engaged at their work when a freight train passed over track No. 1, going west. While that train was in the tunnel a work train moving in the opposite direction ran into the tunnel and injured the plaintiff and two other workmen. The smoke and noise produced by the freight train prevented the workmen from seeing or hearing the work train, and the plaintiff was caught while drilling a hole in one of the rails. By way of defensé the.defendant offered in evidence a telegram as follows :■

“ToWANDA, 7-13-07.

“To W. M. K. & J. P. at Sayre:

“Commencing next Monday morning, July 15th at seven a. m. you will allow one train at a time to pass through the Vosburg tunnel; that is, when train is going through on track No. 1 no train must go through on track No. 2, and the same must be done when train is going through on track No. 2, no train must' go through on track No. 1 except when work train is in tunnel train may pass through on opposite track. Work train will keep out of tunnel while first class trains are going through, acct. cleaning tunnel.

“W. H. K.”

This for the purpose of showing that from the date of the telegram an order was in force forbidding the passage of trains in the manner adopted at the time of the accident, and the argument is that as the work train entered the tunnel while the freight train was passing through the engineer was guilty of a violation of the order referred to and that he alone was responsible for the injury. It does not appear in the evidence who W. H. K. is, nor who W. M. K. and J. P. are, but it was said at the argument that the former is the superintendent of the road and that the persons to whom the telegram was addressed are train dispatchers. Assuming this to be the case, the theory of the defense made it necessary to go further and show not only that the telegram was received by the persons to whom it was dispatched, but that it was enforced by them in operating the road, and particularly that the engineer who is alleged to have been delinquent received the proper order. But these facts were not established by the evidence. Neither the superintendent, the dispatcher'nor the engineer was called, and we do not find any evidence at all tending to show that the engineer operating the train which struck the plaintiff had any notice on that day or at any former time that two trains were not allowed to pass through the tunnel at the same time. The proof of the telegram was by the section foreman who produced a copy which he said he' had received and which he had read to the men working for him at the time he received it, one of whom he believed to be the plaintiff. But this did not in any way connect the- engineer with the order. For anything that appears in the case he may have been acting under the direct instructions of a dispatcher at the time of the accident. But if it be assumed that the “ single train order” was given to the engineer in question the defendant’s case still lacks the important fact that he was advised by the dispatcher or otherwise of the approach of the freight train in the opposite direction. Unless he knew that this train was about to meet his in the tunnel it could not be said that he was negligent in proceeding as he did, for with the freight train out of the way he was not violating any order. Moreover, on the case as presented by the plaintiff it was the duty of the defendant to protect him from the danger to which he was subjected. If he undertook the work in a position where his peril would be greatly increased by the passage of two trains at the same time on the representation and assurance of the foreman that only one train would be admitted to the tunnel at a time and the defendant failed to afford the protection which this arrangement would give and in consequence of such failure the plaintiff was hurt, the defendant failed to meet the obligation which the act of its agent created. The evidence tends to show that for several months the single train plan was in effect. If the employer make a change in the method of work thereby increasing the danger of the servant it is the duty of the employer to advise the servant of the new risk to be run unless it is so obvious that the latter in the exercise of ordinary care may see it: 4 Thompson on Neg., sec. 4,066; Burns v. Vesta Coal Co., 223 Pa. 473. The charge of the court was full and clear and the evidence supports the submission of the case to the jury.

The judgment is affirmed.


author: Orlady, J.,

text:
    Samuel, Appellant, v. Sota.

      Contract — Set-off—Future profits — Affidavit of defense.

    An affidavit of defense is sufficient to prevent judgment which sets up as a counterclaim a loss of future profits caused by plaintiff’s breach of contract, sets forth the contract, the breach thereof,' dates, amounts and calculations, and asserts that the claim for the loss of profits was a direct, certain and specific .amount resulting from the plaintiff’s breach.
    Argued Oct. 20, 1909.
    Appeal, No. 80, Oct. T., 1909, by plaintiff, from order of C. P. No. 4, Phila. Co., Jan. T., 1908, No. 282, discharging rule for judgment for want of a sufficient affidavit of defense in case of Frank Samuel and Silas M. Tomlinson, trading as Frank Samuel, v. Sota and Aznar, trading as Sota & Aznar.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Foreign attachment.
    The defendant filed an affidavit of defense which was as follows:
    Victor de Ysasi, being duly'sworn according to law, deposes and says that he is .the duly .authorized agent and representative of the United States of the above defendants, Ramon de la Sota and Luis Maria de Aznar, copartners, trading as Sota & Aznar, of London, England, and Bilboa, Spain; that he is familiar with the facts of the above-mentioned suit or claim of Frank Samuel, plaintiff; and that defendants, and each of them, have a full, true and just defense to the whole of plaintiff’s claim, of the following nature:
    Defendants admit the correctness of plaintiff's two claims of $174, with interest from October 1, 1906, and $602.21, with interest from March 8, 1907, as set forth in plaintiff’s statement of claim, and hereby expressly waive proof of the same at the trial of this cause.
    As a set-off to plaintiff’s said claims and a counterclaim in favor of defendants, deponent alleges that on September 19, 1906, defendants sold to plaintiff 13,000 to' 15,000 tons of Chavarri’s Garrucha iron ore, tel. quel, (meaning as the ore comes from the mines) at eleven shillings three pence per ton f. o. b. Garrucha, Spain; on a basis of fifty per cent of iron and manganese with three pence scale (meaning that if said ore ran over fifty per cent in iron and manganese, buyer pays seller three pence per unit of such excess, and if ore runs under said fifty per cent seller allows buyer three pence per unit for such deficiency). Shipment of said ore was to be made one cargo in October, one in November and one in December, 1906, steamer to be chartered by sellers in accordance with instructions from buyer and at his . expense, and any dispute under the contract to be settled by arbitration in London, as customary. A copy of said contract of sale is hereto attached marked exhibit “A” and made a part of this affidavit.
    Chavarri’s Garrucha iron ore, the subject of said contract of sale, was known by plaintiff and defendants at the timé of the execution of said contract to be iron ore mined by one Chavarri at his mines at Garrucha, Spain, and from him purchased by defendants and by them sold to plaintiff. Defendants had, on June 16, 1906, contracted to buy from said Chavarri’s firm Chavarri, Lecoq & Company, 30,000 tons of said Garrucha iron ore at eight shillings five pence per ton f. o. b. Garrucha, with five pence per ton added for loading; the ore to be lifted in approximately equal monthly quantities between July 1, 1906, and February 28, 1907, payment to be made upon delivery of bill of lading. Said 30,000 tons defendants sold to various parties, including plaintiff, selling to plaintiff by said contract of September 19, 1906, approximately the tonnage defendants would be required to lift from said mines in October, November and December, 1906.
    During the months of October, November and December, 1906, the time for performance of plaintiff’s said contract with defendants, defendants were ready and willing at all times to deliver f. o. b. Garrucha, 13,000 to 15,000 tons of Chavarri’s Garrucha iron ore of the character called for by said contract and were ready in all other respects to perform their part of said contract, but plaintiff’s instructions to defendants to charter vessels were at such low rates that no vessel could be obtained, and plaintiff refused and neglected to charter vessels at the prices that were offered to him by defendants, or to charter them elsewhere. During the months of October, November and December, 1906, defendants frequently notified plaintiff that he would be required to lift the ore under his said contract before the expiration of the year 1906, or the mine owners would cancel the tonnage. At plaintiff’s request defendants negotiated with the said mine owners to postpone delivery of said ore until January and February, 1907, but plaintiff failed and neglected to charter any vessels during said months and failed to lift or accept any of said ore, although duly requested so to do, and in the month of February, 1907, said mine owners finally canceled 13,000 tons of the aforesaid order for said Garrucha ore and refused to deliver same to defendants.
    Said Garrucha ore, according to analysis, contained 43.83 per cent of units of iron and manganese, which, on the aforesaid fifty per cent basis of said contract of September 19,1906, would have required an allowance by defendants to plaintiff of one shilling six and one-half pence per ton. Defendants would also have been required to pay one and one-half pence per ton as a commission to their representatives in Spain, which, with five pence per ton for loading, would have made the cost to defendants of said ore f. o. b. Garrucha ten shillings six pence per ton. Wherefore defendants have lost as their profit the difference between eleven shillings three pence and ten shillings six pence, or nine pence per ton on 13,000 tons, or $2,379, which they would have made on said contract of September 19, 1906, but for plaintiff’s default. In March, 1907, defendants as required by the aforesaid contract promptly requested plaintiff to name arbitrators in London to whom to submit the aforesaid dispute as was customary, but- plaintiff refused to submit the same to arbitration.
    Wherefore, there is justly due and payable by plaintiff to defendants the sum of $2,379, with interest from February 27, 1907, less the aforesaid credits of $174, with interest from October 1, 1906, and $602,21, with interest from March 8, 1907, for which balance, together with the costs of this action, defendants will demand a certificate in their favor upon the trial of this cause.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Lewis Lawrence Smith, for appellants.
    Generally, in executory contracts of sale of goods, the measure of damages for a refusal to receive the goods contracted for is the difference between the contract price and the market price at the place appointed for delivery, at the date of the breach: Unexcelled Fire-Works Co. v. Polites, 130 Pa. 536; Guillon v. Earnshaw, 169 Pa. 463; Blair v. Ford China Co., 26 Pa. Superior Ct. 374; Saxe v. Lumber Co., 159 N. Y. 371 (54 N. E. Repr. 14).
    Where the plaintiff in an action on an executory contract of sale offers no evidence of the market value of the goods at the place of delivery, he does not show that he has suffered any damages at all: Kinports v. Breon, 193 Pa. 309; Jones v. Jennings, 168 Pa. 493; Field v. Schuster, 26 Pa. Superior Ct. 82; Dady v. Condit, 188 Ill. 234 (58 N. E. Repr. 900).
    In case of breach of contract, it is the positive duty of the aggrieved person to make reasonable exertions to mitigate the consequences flowing from such breach: Chamberlin v. Morgan, 68 Pa. 168; Taylor v. Read, 4 Paige, 561; Hamilton v. McPherson, 28 N. Y. 72.
    In executory contracts of sale in which goods are specific or are of special manufacture, so that at the date of breach there is no general market value, then in many jurisdictions the seller may recover the contract price. These cases are exceptional to the general rule: Ridgeway Dynamo & Engine Co. v. Cement Co., 221 Pa. 160; Field v. Schuster, 26 Pa. Superior Ct. 82.
    While in executory contracts of sale, profits are not necessarily excluded because they are profits, yet if allowed at all, it is because the ordinary measure is inadequate or impossible of application, and the profits themselves must have been an integral part of the contract.

      March 3, 1910:
    The appellee claims that the injured party in a broken contract is entitled to profits. This is not correct. He is entitled to compensation and while he is not debarred from obtaining profits because they are profits, he is on the other hand only entitled to obtain them when the ordinary measure does not provide an adequate and just compensation: Wolcott, Johnson & Co. v. Mount, 36 N. J. L. 262; Fergusson Bros. v. Telegraph Co., 178 Pa. 377; Adams Express Co. v. Egbert, 36 Pa. 360; Howard v. Stillwell, etc., Mfg. Co., 139 U. S. 199 (11 Sup. Ct. Repr. 500); Wilson v. Wernwag, 217 Pa. 82; Williams v. Reynolds, 6 B. & S. 495; Bartlett v. Blanchard, 79 Mass. 429; Thol v. Henderson, L. R. 8 Q. B. Div. 457.

      S. Heckscher, of Duane, Morris & Heckscher, for appellee.
    In an action by vendor against vendee, the rule of damages of the difference between the contract price and the market value of the goods at the time of the breach applies only when the goods.are in the possession of the vendor, and their market value can thus.be realized by him. It has absolutely no application in cases where the goods are not in vendor’s possession, as where they have not yet been manufactured by him; or where they have not been mined by him; or where they have not yet been obtained from third persons: Scott v. Coal Co., 89 Pa. 231; Kingman v. Western Mfg. Co., 92 Fed. Repr. 486; Gallagher v. Whitney, 147 Pa. 184; Winslow Bros. Co. v. DuPuy, 208 Pa. 98; Allegheny Valley R. R. Co. v. Steele, 11 W. N. C. 113; Horst v. Roehm, 84 Fed. Repr. 565; Muskegon Curtain-Roll Co. v. Mfg. Co., 135 Pa. 132; River Spinning Co. v. Atlantic Mills, 155 Fed. Repr. 466; Parkins v. Missouri Pac. Ry. Co., 107 N. W. Repr. 260; Danforth v. Walker, 40 Vt. 257.
   Opinion by

Orlady, J.,

This action of foreign attachment was instituted by the plaintiff to recover a claim, $776.21. The defendants admitted the correctness of the plaintiff's claim, but in their affidavit of defense they present a set-off or counterclaim, which the court below considered sufficient, and discharged a rule taken at plaintiff’s instance, for want of a sufficient affidavit of defense. The appeal was originally taken to the Supreme Court, and was subsequently remanded to this court for consideration. Counsel have presented with exceptional fairness and ability their respective contentions,, but the disposition of the question involved is to be determined solely by the sufficiency of the facts set out in the affidavit of defense, and which are to be considered as being true.

The defendants allege that on September 19, 1906, they sold under a written contract to the plaintiff, 13,000 to 15,000 tons of Chavarri’s Garrucha-iron ore, one of the conditions being, “Shipment of said ore to be made one cargo in October, one in November and one in December, 1906, steamers to be chartered by sellers in accordance with instructions from buyer and at his expense, and any dispute under the contract to be settled by arbitration in London as customary.”

The. parties were well known to each other as dealers in iron ore,- and the subject of sale was known at the time the contract was executed to be of a special grade of iron ore, well known in the trade- as mined by one Chavarri at his mines at Garrucha, Spain, and could be secured from no other source. -

The affidavit of defense sets out that on June 16, 1906, the defendants had contracted to buy from Chavarri, 30,000 tons of this ore to be lifted in approximately equal monthly' quantities, between July 1, 1906, and February 28, 1907, payment to be made upon delivery of bill of lading. Of this ore defendant sold- to plaintiff by their contract of September 19, 1906, the tonnage that the defendants would be required to lift from the mines in October, November and December, 1906. During these months the defendants were ready in all respects to perform their part of the contract, but as further alleged in the affidavit of defense, plaintiff’s instructions to-defendants to charter vessels were at such low rates, that no vessel could be obtained, and the plaintiff refused and neglected to charter vessels at the prices that were offered to him by the. defendants or to charter others elsewhere. During the named months, the defendants frequently notified the plaintiff that he would be required to lift the ore under his contract before the expiration of the year, or the mine owner would cancel his tonnage. At the-plaintiff’s-request the defendants negotiated with the mine owner to postpone the delivery of the ore until January and February, 1907. The plaintiff having failed and neglected to charter any vessels during said months, and having failed to lift or accept any of said ore, although duly requested to do so in the month of February, 1907, the mine owner canceled 13,000 tons of the order, and thereafter refused to deliver it to the defendants, by which the defendants lost their profit which they would have made on said contract of September 19, 1906, but for the plaintiff’s default. It is further alleged that in March, 1907, the defendants, as required by the contract, promptly requested the plaintiff to name arbitrators in London, to whom to submit the aforesaid disputes as was customary, but plaintiff refused to submit same to arbitration.

The facts are specifically set forth as to dates, amounts and calculations, the copy of the contract is attached to the affidavit of defense, in which it is directly asserted that the claim for loss of' profits was a direct, certain and specific amount due to the plaintiff’s breach of contract, to wit, $2,079, as explained in the statement and figures set out at length in the affidavit of defense, and which must be accepted as true. In such a case the rule laid down in 3 Sutherland on Damages (3d ed.), sec. 665, is clearly applicable. The broad general rule in such cases is that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained, and this rule is subject to but two conditions, the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation, and they must be satisfactorily shown by their nature and in respect to the cause from which they proceed. In Wilson v. Wernwag, 217 Pa. 82, after an exhaustive review of the authorities, Judge Mestrezat concludes, “from these authorities it is clear that damages may be recovered for loss of profits caused by breach of contract; and they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages, if the evidence is sufficiently satisfactory and definite to warrant the jury in estimating their extent.”

An examination of the well-considered cases will show that prospective profits may be recovered for the breach of a contract, whenever they are susceptible to proof. They have been rejected by the court as damages only because of failure to prove them with sufficient certainty and definiteness. There can be no good reason why they should not be recovered, when they are capable of definite estimation. The injured party has the right to demand and receive from the defaulting party full compensation for the loss he has sustained by breach of the contract. Each party knows the terms of the contract, and therefore is presumed to know the, loss each will sustain by its breach. The law is not so blind to justice as not to require the defendant to respond in damages if there is any reasonable basis for their ascertainment. When, therefore, the evidence shows with reasonable certainty the profits which have been lost by the breach of a contract, they shall be considered as damages and shall be recoverable by the injured party from the one in default.

As we are only concerned with the sufficiency of the affidavit of defense, it is needless to pursue the inquiry further. The parties were well known to each other. The damages claimed resulted from the violation of the contract of September 19, 1906, and were not speculative but actual. The calculation on which they were estimated is not challenged. A special tribunal had been selected for the settlement of the dispute, and this the plaintiff refused to follow and the counterclaim is set out with the same clearness and particularity as is required in a statement: Sprissler v. McFetridge, 37 Pa. Superior Ct. 607; see also Horst v. Roehm, 84 Fed. Repr. 565; s. c., 178 U. S. 1; Gallagher v. Whitney, 147 Pa. 184; Winslow Bros. Co. v. Du Puy, 208 Pa. 98.

The judgment is affirmed.


author: Porter, J.,

text:
    Clift v. Philadelphia, Appellant.

      Constitutional law — Courts—Stenographers—Payment of stenographer — Act of May 1, 1907, P. L. 135.
    The portion of the Act of May 1, 19.07, P. L. 135, which authorizes the placing upon the county of' the burden of paying for typewritten copies of the stenographic reports of trials furnished to the plaintiff and defendant, or their respective counsel, in litigation between private parties in which the public has no direct interest, is not unconstitutional; but no such copies can be furnished, except in pursuance of a special order of the court in each case, unless the case has been appealed to the Supreme or Superior Court. A general order of court directing copies of the notes to be furnished to the plaintiff and defendant in all private cases is invalid, inasmuch as the court cannot divest itself of the discretion which it must exercise in each particular case.
    Argued Oct. 14, 1909.
    Appeal, No. 152, Oct. T., 1909, by-defendant, from judgment of O. P. No. 4, Phila. Co., Dec. T., 1908, No. 4,826, for plaintiff on case stated in suit of William M. Clift v. Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Case stated to determine liability of county for cost of stenographic notes of a trial. Before Carr, J.
    The facts are stated in the opinion of the Superior Court.

      Error assiqned was in entering judgment for plaintiff in the sum of 8420.40.

      Andrew Wright Crawford, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellant.
    Money derived from taxation may be used only for public purposes. The power to tax is subject to the limitation that a tax must be laid for a public purpose only, and an imposition in the form of a tax for purposes of private interest is void and unconstitutional: Grim v. Weissenberg School Dist., 57 Pa. 433; Sharpless v. Mayor, 21 Pa. 147; Lehigh County v. Meyer, 102 Pa. 479.

      March 3, 1910:
    If an attempt has been made in this act to put upon the county the fees of the attorneys for the plaintiff and defendant in private litigation, it needs no argument to show that such an attempt would have been unconstitutional: Briggs v. Erie County, 98 Pa. 570.
    Personal claims even though arising from an attempt of a public servant to serve the public may not be paid out of the public funds: Faas v. Warner, 96 Pa. 215; Strock v. Cumberland County, 176 Pa. 59.

      Henry C. Boyer, for appellee.
    The act was constitutional: Russ v. Com., 210 Pa. 544; Speer v. School Directors, 50 Pa. 150; Com. v. Moir, 199 Pa. 534; Knisely v. Cotterel, 196 Pa. 614; City of Erie v. Reed, 113 Pa. 468.
   Opinion by

Porter, J.,

The plaintiff brought this action of assumpsit to recover the sum of $730 alleged to be due him for services rendered as official stenographer of the court of common pleas No. 2, of Philadelphia county, for copies of his stenographic notes, in a large number of trials, furnished to counsel, and for nine copies of his stenographic notes furnished to as many defendants in a certain trial in the court of quarter sessions of said county, asserting his right to recover of the defendant under the provisions of the Act of May 1, 1907, P. L. 135. The parties agreed upon the facts in a case stated, which divided the cases in which the plaintiff asserted the right to recover for copies of the proceedings furnished into three classes: (1) Civil proceedings between private parties tried in the court of common pleas, after the court had, on December 11, 1907, adopted and promulgated the following general order or rule, viz.: “Unless otherwise ordered by the trial judge, the official stenographer shall furnish one typewritten copy of his notes of the proceedings at each trial to the plaintiff or plaintiffs therein, and one copy thereof to the defendant or defendants therein, not more than two copies in all of the notes taken at any trial to be supplied to the parties, regardless of the number concerned;” and before the rule recited had, on March 6, 1908, been rescinded and repealed. During the time this rule was asserted to be in force the plaintiff furnished under its supposed provisions to the plaintiffs and defendants in a large number of cases involving private litigation copies of his stenographic notes which at the rate of compensation fixed by the statute upon which he relies would entitle him to receive $294.50; (2) Civil cases involving mere private litigation in which, after abrogation of the above rule, the court at the trial of the respective cases made a special order directing the official stenographer to furnish typewritten copies of his stenographic notes to the plaintiffs and defendants in said cases; the aggregate amount claimed in cases of this character being $87.20; and (3) a certain case tried in the court of quarter sessions, in which there were nine defendants, and the court made an order directing the official stenographer to “ supply one typewritten copy of his stenographic notes to the court, one copy to the district attorney, and one copy to each defendant represented by separate counsel.” The plaintiff under this order furnished one copy to the court and one copy to the district attorney, for which he has been paid, by the defendant. He furnished a typewritten copy of the notes to each one of the defendants on trial, and for said nine copies he asserts the right to be compensated by the defendant in the sum of $348.30. The learned judge of the court below, in an opinion filed, held that the plaintiff under the facts agreed upon was entitled to recover the full amount claimed for services rendered in the first and second classes of cases above stated, but, as to the case tried in the court of quarter sessions, held that, the plaintiff having already been paid for the copies furnished to the court and the district attorney, respectively, could only under the statute recover for one copy furnished to the defendants, amounting to $38.70, and accordingly entered judgment in favor of the plaintiff, in the sum of $420.40, with interest. The defendant appeals from that judgment.

The learned counsel for the defendant contend that so much of the Act of May 1, 1907, P. L. 135, as authorizes the placing upon the county of the burden of paying for typewritten copies of the stenographic reports of trials furnished to the plaintiff and defendant, or their respective counsel, in litigation between private parties, in which the public has no direct interest, is unconstitutional; that it is a taking, by taxation, of private property and devoting the proceeds of the tax to a private use. The argument is that it is the taking of the money realized from the taxation of the property of A for the purpose of purchasing and giving to B and C something in which A has no interest. The power of taxation is a necessary and indispensable incident of government. "Yet an act of the legislature authorizing contributions to be levied for a mere private purpose, or for a purpose which, though it be public, is one in which the people from whom they are to be exacted have no interest, would not be a law, but a judicial sentence, and not within the legitimate scope of legislative authority:” Grim v. Weissenberg School District, 57 Pa. 433; Sharpless v. The Mayor of Philadelphia, 21 Pa. 147. The power to tax is subject to the limitation that a tax must be laid for a public purpose only, and an imposition in the form of a tax for purposes of private interest is void and unconstitutional. This limitation upon the power to tax necessarily gives rise to the corollary: that money derived from taxation must be used only for public purposes. It is not within the power of the legislature to direct the application of public money to a purpose in support of which it is without authority to impose a tax: Faas v. Warner, 96 Pa. 215. Within this limit the power of the legislature to impose taxes, or to authorize their imposition by a subordinate municipal authority,- is of necessity discretionary. The courts are without power to question the wisdom, policy or even quality of the legislation, if its provisions are within the limits of the legislative discretion. A tax law is to be considered valid, unless it be for a purpose in which the community taxed has palpably no interest; and when it is apparent that the burden is imposed for the benefit of others than the public and for another than the public interest: Speer v. School Directors of Blairsville, 50 Pa. 150; Russ v. Com., 210 Pa. 544, and cases above cited. Is the expenditure of public money authorized by the act of 1907 for a public purpose, and may it subserve an end advantageous to the community from the taxation of which the fund is derived?

The statute has general reference to public judicial proceedings and the rights of the parties engaged therein. The general subject is, therefore, one in which the public have an interest, with regard to which legislative action, in the interest of the public, is absolutely necessary. The public generally, as well as every individual citizen of the commonwealth, have an interest in the prompt, efficient and certain administration of justice. There was a time when the volume of litigation was much less than at present and the system of judicial procedure then prevalent was sufficient to meet the requirements of public justice and dispose with reasonable promptness of legal controversies between the citizens of the commonwealth. All offers of testimony, exceptions thereto, the rulings of the court thereupon, and the testimony admitted under the bill of exceptions were written out at length. This process consumed time, it was slow; but the parties knew as the trial proceeded just what would appear in the record when finally made up. The increase in the volume of business made necessary the introduction of a new system, and the use of stenographers to report judicial proceedings has become general. This device expedites judicial procedure, economizes the time of the public tribunals, and so promotes the prompt administration of justice and reduces the amount of public moneys in that behalf expended! The record as now made up, however, is not primarily within the reach of the parties, it is written in symbols which they cannot comprehend. They cannot be absolutely certain as to what it will show until it has been transcribed in longhand, and when that has been done it may not show what they think it ought to reveal. If the parties obtain from day to day, during the progress of a long trial, typewritten copies of the stenographic notes of the proceedings, they are thus made aware of how the record is being made up, while it is being made up. If the reporter has made a mistake the attention of the court can be directed to it, at the time, and it can then be corrected; if anything has been omitted, the omission can be supplied. We cannot, therefore, say that it is unreasonable to assume that not only the promptness but the accuracy of public judicial proceedings may be promoted and the rights of parties safeguarded by their obtaining copies of the record, during the progress of the trial. True it is, that parties who are litigating as to their private rights and who are possessed of means should themselves pay for the advantage to be derived from having such copies of the notes of the proceedings; and this act manifestly does not contemplate that the public moneys should be paid out for copies furnished to parties of that character. But cases may arise in which it will become evident to the court that a party who does not have the means to procure copies of the proceedings, as the trial is in progress, is placed at a serious disadvantage. It may be said that the public has no interest to be subserved which would justify the expenditure of money raised by taxation for the purpose of protecting the individual rights of the parties to litigation. The reply to this would seem to be that the subject with which this statute deals is one in which every citizen of the community has an interest. The only thing involved in a given case may be the life, liberty or property of an individual, but the government assumes the exclusive power, through its constituted tribunals, to pass upon the questions which must determine the issue. The sovereign power has made laws which ordain that a citizen for certain offenses shall forfeit his life or liberty and that, under certain conditions his property shall pass to others, and has constituted courts for the purpose of determining the existence of the facts and conditions and adjudging the consequences. It is, therefore, to the interest of all the people that every proper safeguard should be provided to guard against mistakes in the administration of justice.

We are not required, in this case; to determine whether a law which provided that copies of the proceedings in all cases should be furnished at the public expense to private litigants would be valid. This statute does not require anything of that kind, nor do its provisions authorize the courts to so direct by any general order. The third section of the act requires official stenographers, "when engaged in such courts” to take full stenographic notes of the testimony in all judicial proceedings in any trial of fact, at law or in equity, etc. The fourth section requires him to make, “from his stenographic notes of any trial or other matter of which a copy may be required, a correct, typewritten copy or copies as hereinafter provided.” The provisions relating to the maldng of typewritten copies of the stenographic notes are as follows: “Section 7. During the progress of the trial of any cause, upon the order of the court upon its own motion, or upon motion of counsel and allowance by the court, the official stenographer reporting the proceeding shall, from the stenographic notes thereof, make three typewritten copies, and from day to day as the case progresses supply one copy to the court, one copy to the plaintiff, and one copy to the defendant, or their respective counsel: and within a reasonable time after the completion of the trial to certify a complete copy, as hereinbefore provided, and supply to the parties or their counsel any portion of such copies, not previously supplied, as may be necessary to complete the record.” This section contains further provisions authorizing the court to make an order after the trial, when none had previously been made, directing the furnishing of a typewritten copy or copies of the stenographic notes, and requiring the stenographer to furnish such copies, also, upon the request of counsel. The section closes with the direction that for the copy or copies ordered by the court compensation shall be made as provided in sec. 8 of the act, and, if ordered by counsel, without an order of the court, then the compensation therefor shall be made by the party ordering the same. The eighth section of the statute fixes the rate at which the official stenographer .shall be paid for typewritten copies and directs that payment shall be made by the county in which the case is pending, or for which the work is done, when ordered by the presiding judge. The only instances in which the making of a typewritten copy of the stenographic notes to be paid for by the county, without the order of the court, is by this statute required, are when an appeal has been taken to the Supreme or Superior Court, or in cases of conviction of murder in the first degree; in which cases it is made the duty of the official étenographer to certify and file of record a typewritten copy of the notes of trial, “without any order of the court; payment for which shall be made in the same manner as if directed by the court.” As to these particular cases the statute only requires that the record shall be made up at the public expense. The statute does not itself require copies of the notes to be furnished to the plaintiff and defendant at the expense of the county, it is only a grant of power to the courts to make an order in “any cause,” directing that there shall be three typewritten copies of the stenographic notes made, one of which shall be supplied to the plaintiff and one to the defendant. The statute manifestly intended that the third copy, the one furnished to-the court, should be used for the purpose of certifying and filing of record. We do not find in this section of the statute anything which would warrant the court in ordering more than three typewritten copies of the stenographic notes in any case, one copy to be furnished to the plaintiff and one copy to be furnished to the defendant. The statute was a grant of power to the courts to order, in any cause, that type-written copies of the notes be furnished to the plaintiff and defendant. This invested the courts with a discretion to authorize the expenditure of public funds and imposed upon them the duty to exercise a judicial discretion, in each case as it arose, in determining whether the circumstances warranted such expenditure. It cannot be assumed that the discretion thus vested in the courts will be abused. The cases in which the court will be requested to make such an order may not be many, and it is probable that those in which such an order is made will be few, but some cases may arise in which it would be altogether proper for the court to exercise the power conferred by the statute. We cannot say with that certainty which should mark judicial action that the power conferred by this statute may not in some cases enable the courts to guard against mistakes in making up the record of trials, further the cause of justice and expedite judicial proceedings. These considerations must lead us to the conclusion that the provisions of the statute in question are a valid exercise of legislative power.

The plaintiff is entitled to recover his compensation for copies furnished in the second class of cases hereinbefore referred to, those cases in which the court of common pleas made a special order directing the copies to be furnished, the aggregate amount of the compensation in such cases being $87.20. He is entitled to compensation also for one typewritten copy of the stenographic notes of the trial in the court of quarter sessions, in which the court made a special order, in the sum of $38.70. Thus far we concur in the disposition of the case made by the learned judge of the court below. We cannot, however, assent to the proposition that the plaintiff is entitled to recover for copies furnished in the first class of cases hereinbefore referred to, in which the copy was furnished to private litigants without a special order having been made in such cases, respectively. The plaintiff bases his right to recover upon the fact that the court had prior to the time he furnished to private litigants the copies in question adopted a general order or rule which provided that the official stenographer should in all cases, unless otherwise ordered by the trial judge, furnish one typewritten copy of his notes to the plaintiff and one to the defendant. The statute manifestly intended that in each case in which its provisions were invoked the court should exercise a judicial discretion, in view of the facts and circumstances of that particular case, in determining the question whether the county should be subjected to the burden of the expenditure which the court was empowered to order. The court could not by a general rule, merely for its own convenience, divest itself of the discretion which it must exercise in each particular case. Every case has its own peculiar facts, circumstances and necessities; and if one rule suited them all, that rule might as well have been fixed by the legislature itself as by the court. “But there is good reason, at all events the clear and distinct provision of the statute is sufficient rea'son for us why the court shall exercise the discretion vested in them by the law, and at the time fixed for its exercise:” Road in Norriton and Whitpain Townships, 4 Pa. 337, In re Shaefferstown Road, 5 Pa. 515. This imposes no burden on the court, and that it is a necessary precaution is clearly in-cheated by this case. The judgment of the court below must to this extent be reversed.

The judgment of the court below is reversed and judgment is now entered in favor of the plaintiff and against the defendant in the sum of 1125.90, with interest from January 28,1909.


text:
    Zeller v. Haupt, Appellant.

      Contract — Rescission—Notice—Evidence—Province of court and jury.

    1. Where a party discovers facts which warrant rescission of his contract, it is his duty to act promptly, and in case he elects to rescind to notify the other party without delay. What is a reasonable time, or undue delay, when the facts are undisputed, is a question of law to be determined by the court.
    2. There is no fixed rule to govern the court in determining the length of time a purchaser may reasonably detain property for an examination before rescinding the contract. It necessarily depends upon matters that are incident to the particular transaction.
    3. Where a party desires to rescind upon the ground of mistake or fraud, he must upon discovery of the fact announce his purpose and adhere to it.
    4. Where a person gives a sample order for goods, and the goods are sent to him without his having had any knowledge of the kind, quality, class or price of the articles when they were delivered to the transportation company, the purchaser is entitled to a reasonable time within which to examine'the goods, and the delay of a week in returning them and rescinding the contract, is not an unreasonable time.
    5. When a party is inveigled into signing a written contract upon the faith of a contemporaneous oral agreement which is violated as soon as it has accomplished its purpose in securing the execution of the paper, such oral agreement may always be shown when the enforcement of the paper is attempted.
    Argued Oct. 14, 1909.
    Appeal, No. 14, Oct. T., 1909, by defendant, from judgment of O. P. No. 5, Phila. Co., Sept. T., 1906, No. 3,296, on verdict for plaintiffs in case of Nicholas Zeller et al., trading as Rhode Island Manufacturing Company, v. Herman Haupt.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.

      Assumpsit for goods sold and delivered. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $363.20. Defendant appealed.

      Errors assigned were (1) in directing a verdict for plaintiffs; (2) in refusing motion for judgment n. o. v.; (3-6) exclusion of oral testimony relating to the contemporaneous oral agreement referred to in the opinion of the Superior Court.
    L. Stauffer Oliver, for appellant.
    Where the goods are received by the vendee under an executory contract of sale, he has a reasonable time in which to inspect and return them, and mere delivery to him does not constitute an acceptance of such goods by the vendee: Fogel v. Brubaker, 122 Pa. 7; Jones v. Jennings Bros. & Co., 168 Pa. 493; Barnett v. Becker, 25 Pa. Superior Ct. 22; Spiegelberg v. Karr, 24 Pa. Superior Ct. 339; Armour v. Produce Co., 28 Pa. Superior Ct. 524; Blair v. Ford China Co., 26 Pa. Superior Ct. 374; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224.
    That where the evidence is undisputed, what is a reasonable time is a question of law to be determined by the court: Spiegelberg v. Karr, 24 Pa. Superior Ct. 339; Armour v. Produce Co., 28 Pa. Superior Ct. 524; Nerve Food Co. v. Robertson, 199 Pa. 486; Thompson v. Chambers, 13 Pa. Superior Ct. 213; Howard v. Turner, 155 Pa. 349; Learning v. Wise, 73 Pa. 173; Newmyer v. Davidson, 31 Pa. Superior Ct. 468; Acetylene Co. v. Smith, 10 Pa. Superior Ct. 61; Davis v. Stuard, 99 Pa. 295.
    It is permissible to show by parol testimony the facts, representations and circumstances, which induced the signing of a written agreement, where, as in this ease, fraud in the inducement is alleged: El Dorado Jewelry Co. v. Hopkins, 34 Pa. Superior Ct. 446; Dowling v. Ins. Co., 168 Pa. 234; Commonwealth to use v. Julius et al., 173 Pa. 322; Meyers v. Lebanon Ins, Co., 156 Pa. 420.

      Frank M. Cody, for appellees.
    Delivery of goods by the seller to a carrier as directed by the contract is a delivery to the purchaser and the title thereto vested in the consignee: Schmertz v. Dwyer, 53 Pa. 335; P. & R. R. R. Co. v. Wireman, 88 Pa. 264; Garbracht v. Com., 96 Pa. 449; Bacharach v. Chester Freight Line, 133 Pa. 414; Rubber Co. v. Small, 3 Pa. Superior Ct. 8.
    March 3, 1910:
   Opinion by

Orlady, J.,

This action of assumpsit was brought to recover the sum of $320, for goods sold and delivered. The defendant on July 7, 1909, signed a printed blank at Philadelphia, which is designated “Our Trial Order.” It is issued by the “Rhode Island Manufacturing Company, Chicago, not incorporated.” The opening paragraph is in substance, viz.: This sample order consists of the following articles in “Enamel, rolled gold plate, gold front, gold filled, sterling silver and oxidized finished goods, in assorted designs, of Crosses and Lockets; Ladies’ Neck Chains; Sash Pins and Belt Buckles; Brooches, Waist Sets, Silk Fobs, Hat Pins, Scarf Pins, Emblem Buttons, Cuff Pin Sets, and these articles range in price from .10 to $2.00 each.” There are a number of unimportant provisions incorporated in it, and the whole printed paper purports to be an offer by a prospective purchaser. Attached to it by a detachable slip, is the following printed direction: Gentlemen: On your approval please deliver to me f. o. b. Transportation Co., at your nearest distribution point the goods described on this order on above terms. I have read the above and all conditions appertaining to this order appear hereon.” This was signed by H. Haupt, on July 7, 1906, at Philadelphia, Penna.

Attached to and made a part of plaintiff’s statement of claim is a schedule, dated at Iowa City, Iowa, August 9, 1906, containing a list of the different items which are designated by letters and figures, a sample of which is as follows:

Cuff Pins.

6 ea. 7212-7304-7205 @ .25

7180-7125-7179 @ .50

7124 @ .35

$15.60

Each of the different items is followed by a series of figures, which, are meaningless without additional information as to what they represent, and the aggregate value of these items amounts to the sum of $320, as mentioned in the printed sample order of a month’s earlier date. While the order provides, “on your approval please deliver to me the goods described on this order,” there is nothing in it to describe the articles or to indicate the number of any class of the jewelry. It is to be borne in mind that this schedule was made in a distant city, thirty days after the trial or sample order was signed, and it was not pretended that the defendant had any knowledge of the kind, quality, class or price of the articles when they were delivered to the transportation company. They were received by the defendant on August 15, 1906, and while there is some controversy as to the length of time they were retained by him, it is certain that not later than August 22, he did notify the plaintiff that he had sent the goods back to Iowa City, with a notice of the rescission of the contract. This is established by a letter of August 27, written by the plaintiff, acknowledging the receipt of a letter from the defendant’s attorney, dated August 22, and acknowledging the tender to them, the plaintiffs, of the goods in dispute, by the United States Express Company, and in which letter they announced their refusal to accept them. The plaintiff testified that the goods were returned within a couple of days, or a few days, or not longer than a week.

On the trial the only evidence produced was that of the defendant, who was called as if on cross-examination and who admitted the genuineness of his signature to the paper of July 7, and testified as to the return of the goods. There was no evidence of the market price, the value of the goods, their real value or the cost of manufacture. The court under plaintiff’s objection, excluded evidence offered by the defendant, to show the representations which induced the plaintiff to sign the agreement; representations that were made as to the quality and value of the goods; and the oral understanding at the time the agreement was entered into as to the legal effect of the trial order, and the court instructed the jury that the defendant having signed the contract and received the goods, the contract was executed, and that the defendant was liable. Defendant's counsel contended that at most he was liable only for the difference between the price of the goods agreed upon, and the market value of the goods at the time of delivery, which was held by the court to be a question of law, and was reserved for further consideration, but the jury were directed to return a verdict in favor of the plaintiff for the whole amount stipulated in the trial order. There was a motion for judgment non obstante veredicto, and for a new trial, but this was overruled without an opinion being filed, and the judgment was entered on the verdict.

We held in Marble Company v. Wiggins, 12 Pa. Superior Ct. 577, that, “Where a transaction is merely contrary to good faith and fair dealing, where it affects individual interests only, either ratification or rescission at the election of the party claiming to have been defrauded is permissible; but omission to repudiate within a reasonable time is evidence and may be conclusive evidence of an election to affirm the contract.” When a party discovers facts which warrant rescission of his contract, it is his duty to act promptly, and in case he elects to rescind, to notify the other party without delay. What is a reasonable time, or undue delay, when the facts are undisputed, is a question of law to be determined by the court: Armour v. Produce Co., 28 Pa. Superior Ct. 524. In Acetylene Company v. Smith, 10 Pa. Superior Ct. 61, one year was held to be an unreasonable delay. In Spiegelberg v. Karr, 24 Pa. Superior Ct. 339, five months; in Newmyer v. Davidson, 31 Pa. Superior Ct. 468, three years; in Leaming v. Wise, 73 Pa. 173, four months, and in Davis v. Stuard, 99 Pa. 295, a delay of six years was held to be unreasonable. These authorities and many others show that there is no fixed rule to govern the court in determining the length of time a purchaser may reasonably detain property for an examination before rescinding the contract. It necessarily depends upon many matters that are incident to the particular transaction, and we have been unable to find any case warranting the conclusion that this defendant did not act with reasonable promptness in rescinding this contract which he alleged was induced by fraudulent representations. Where a party desires to rescind upon the ground of mistake or fraud, he must upon discovery of the facts announce his purpose and adhere to it; he is not permitted to play fast and-loose; delay and vacillation are fatal to the right which before existed, and rescission must be applied for if possible, while the parties can be restored to their original position: Dunn v. Columbia National Bank, 204 Pa. 53; Muchlhof v. Boltz, 215 Pa. 124.

Even though the defendant signed the trial order he had a right to assume that it was what it purported to be, a sample or trial order and nothing more. It did not contain a description nor specify the value of any article. The schedule or enumeration of articles was not before him, when he signed the trial or sample order, and without an explanation that schedule is meaningless, if not deceptive, so that when the articles were received on August 15, it would naturally require considerable examination of the property before defendant would be in a position to say whether he wanted to retain the articles or not.

Under the undisputed facts the contract was executory, the articles being ordered without having been seen, and dependent entirely upon a description which it is alleged was false: Dailey v. Green, 15 Pa. 118; Wilson v. Belles, 22 Pa. Superior Ct. 477; Fogel v. Brubaker, 122 Pa. 7; Conard v. Penna. R. R. Co., 214 Pa. 98. In sales of such a character, delivery is not complete without acceptance: Barnett v. Becker, 25 Pa. Superior Ct. 22; Spiegelberg v. Karr, 24 Pa. Superior Ct. 339; Blair v. Ford China Company, 26 Pa. 374. The measure of damages in this case was not properly presented. This being only an executory contract for the sale of goods not specifically described, the measure of the damages for the refusal of the buyer to accept them, is the difference between the price agreed upon, and the market value upon the day appointed for the delivery: Jones v. Jennings Bros. & Co., 168 Pa. 493; Unexcelled Fire-Works Co. v. Polites, 130 Pa. 536; Barnett v. Becker, 25 Pa. Superior Ct. 22. We held in Zeller v. Wunder, 36 Pa. Superior Ct. 1, that, “ If the facts alleged by the defendant as to the misrepresentations of the agent of the plaintiffs, in regard to the signing of the order, the amount of goods contained therein and the price to be paid therefore, are established by competent evidence, the transaction would amount to such a fraud as to avoid the contract.”

The rejection of the testimony to show these material facts which were alleged to be an inducing cause to the signing of the trial order, was in conflict with Gandy v. Weckerly, 220 Pa. 285, and we also held in El Dorado Jewelry Co. v. Hopkins, 34 Pa. Superior Ct. 446, that when a party is inveigled into signing a written contract upon the faith of a contemporaneous agreement which is violated as soon as it has accomplished its purpose in securing the execution of the paper, that an oral agreement may always be shown when the enforcement of the paper is attempted. The separate offers should have been more specific, and each one standing alone might be open to the objection of being too meager and indefinite, but each was a stepping-stone to the other, culminating in the sixth, “What oral agreement did you enter into before signing this, or at the time?” and on the whole presented such a case as to require the court to receive the testimony in explanation of the transaction.

The first, third, fourth, fifth and sixth assignments are-sustained. The judgment is reversed and the record remitted to the court below with a procedendo.


author: KELLY, Judge:

text:
    598 A.2d 1296
    Bernard DUBLIN, Jr., a Minor by His Parents and Natural Guardians Charlotte and Bernard DUBLIN, and Charlotte and Bernard Dublin, in Their Own Right, Appellees, v. Harold F. SHUSTER, M.D., John R. Duda, M.D., Germantown Hospital and Medical Center, Dr. A Dinubile, Jay W. Macmoran, M.D., Germantown Orthopedics Assoc. and Wister Radiology Associates, Inc. (Two Cases) Appeal of Harold F. SHUSTER, M.D., John R. Duda, M.D. and Germantown Orthopedic Associates, Appellants. Appeal of GERMANTOWN HOSPITAL AND MEDICAL CENTER, Appellants.
    Superior Court of Pennsylvania.
    Argued April 23, 1991.
    Filed Sept. 30, 1991.
    Reargument Denied Dec. 6, 1991.

      Leslie A. Miller, Philadelphia, for Shuster, appellant (at 2976 and appellee at 2977).
    Martin G. Rubenstein, Philadelphia, for appellees. Louis Flocco, Marks, Kent & O’Neill, P.C., Philadelphia, for Germantown Hospital, appellant (at 2976 and 2977).
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether the trial court was correct iri finding that a general release signed by Charlotte and Bernard Dublin [hereinafter “Dublins”] on behalf of themselves and their minor son, appellee, Bernard Dublin, Jr. [hereinafter “Bernard”] pursuant to a court-approved settlement did not preclude Bernard’s claim against appellants, Germantown Hospital and Medical Center [hereinafter “Hospital”] and Harold Shuster, M.D. and John Duda, M.D. [hereinafter “Doctors”]. For the reasons which follow, we find the release precludes Bernard’s claim, and reverse and remand for proceedings consistent with this opinion.

On August 2, 1981, an automobile struck Bernard as he rode his bike. Bernard was taken to appellant-Hospital for treatment of his injuries. Appellants-Doctors cared for Bernard during his stay at appellant-Germantown Hospital.

When he was admitted, the Doctors diagnosed Bernard with a fractured left femur and a minor neck injury. His left leg was subsequently placed in a cast. X-rays and bone scans of Bernard’s neck revealed no significant abnormality although his head tilted to one side. Bernard was treated for both injuries and released from the Hospital on September 6, 1981. On October 19, 1981, the Doctors readmitted Bernard to remove his cast. He continued to complain of a stiff neck. When the Doctors noticed Bernard’s neck tilted in the opposite direction from his admission on August 2, 1981, they again x-rayed and scanned Bernard’s neck. Tests indicated a slight abnormality. On November 12, 1981, while manipulating Bernard’s neck under anesthesia, appellant-Shuster heard and felt a “pop.” Tests then revealed displacement of Bernard’s neck at vertebrae level Cl and C2. In April of 1982, Bernard underwent a spinal fusion to correct this displacement.

In October, 1982, appellees-Bernard and Charlotte Dublin [hereinafter “Dublins”], filed suit individually and on behalf of their minor son, Bernard, against Henry Genther, the driver of the vehicle. The parties reached a court-approved settlement of $50,000, representing Mr. Genther’s maximum insurance coverage. Pursuant to this settlement, the Dublins executed a “Parents Release and Indemnity Agreement” on July 21, 1983.

On October 26, 1983, the Dublins instituted a medical malpractice claim against appellant-Hospital and appellants-Doctors. The parties thereafter conducted discovery. Appellants subsequently filed motions for summary judgment asserting that the release executed by the Dublins in July of 1983 barred further claims for injuries resulting from the accident. The trial court denied appellants’ motion, basing its decision on this Court’s holding in Buttermore v. Aliquippa Hosp., 368 Pa.Super. 49, 533 A.2d 481 (1987) [hereinafter “Buttermore I”]. In 1989, however, the Supreme Court of Pennsylvania reversed that portion of Buttermore I which had allowed the plaintiff-husband’s claim against the defendant-hospital. Buttermore v. Aliquippa Hosp., 522 Pa. 325, 561 A.2d 733 (1989) [hereinafter “Buttermore II”]. Appellants then filed a motion for reconsideration with the trial court based on Buttermore II. The trial court granted partial summary judgment against the Dublins, but denied summary judgment in favor of Bernard. The trial court found that at the time the parties received court approval of the settlement, the court believed “that recovery [by Bernard] against other tortfeasors was still possible.” (Trial court opinion at 2.) This appeal was filed.

Motion for summary judgment may be granted only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b). In passing on a motion for summary judgment, this Court will view the record in the light most favorable to the non-moving party. Kerns v. Methodist Hospital, 393 Pa.Super. 533, 536-537, 574 A.2d 1068, 1069-1070 (1990); Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 88, 546 A.2d 1168, 1170 (1988). In doing so, we accept as true all well-pleaded facts in the appellants’ pleadings and give appellants the benefit of all reasonable inferences drawn therefrom. Ector v. Motorists Ins. Companies, 391 Pa.Super. 458, 463-464, 571 A.2d 457, 460 (1990). Summary judgment is appropriate only in those cases which are free from doubt. Id. Based on this standard, we find the trial court erred in refusing to grant appellants’ motions for summary judgment in Bernard’s suit.

On appeal, appellants contend that the trial court erred in denying their motion for summary judgment in favor of Bernard. Appellants argue that the “Parents Release and Indemnity Agreement” equally binds all claimants. The Dublins contend, in turn, that appellants’ negligent treatment of their son’s injuries provided a separate and distinct cause of action not precluded by the 1983 release. Because we find that Bernard’s instant action against appellants derived from the accident of August 2, 1981, we disagree. We, therefore, hold that the release executed by the Dublins on behalf of their son bars his claim as well.

Although the trial court found Bernard’s neck injury resulted from the accident of August 2,1981, it did not find that the Buttermore II holding precluded his suit. The trial court distinguished the facts of Buttermore II from the instant case:

The salient difference is that in Buttermore, the plaintiff was an adult whereas in the case before us the plaintiff was a minor. Settlement of a minor’s action requires court approval. At the time the court approved settlement with the driver, we must assume that the judge there was aware that the earlier Butttermore opinion was the majority rule, and approved settlement on an assumption that recovery against other tortfeasors was still possible.

Tr.Ct.0p. at 2. The trial court found that the Buttermore II decision did not bar Bernard’s claim by assuming that the parties obtained judicial approval of settlement based on the earlier Buttermore I rule. With all due respect to the learned trial court, we disagree with such a finding under both the facts of this case and the law at the time the parties executed the release. We, therefore, find that the trial court erred in refusing to grant appellants’ motion for summary judgment against Bernard.

At the time of the Buttermore I decision, the prevailing law held that general releases like that signed by the Dublins, were binding absent a clear showing of fraud, accident or mutual mistake. Wolbach v. Fay, 488 Pa. 239, 242, 412 A.2d 487 (1980); Emery v. Mackiewicz, 429 Pa. 322, 240 A.2d 68 (1968); Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961). Furthermore, general releases were held applicable to all tortfeasors despite the fact that they were not named within the release. Wolbach v. Fay, supra; Hasselrode v. Gnagey, supra. The courts of Pennsylvania have traditionally determined the effect of a release using the ordinary meaning of its language and interpreted the release as covering “only such matters as can fairly be said to have been within the contemplation of the parties when the release was given.” Estate of Bodnar, 472 Pa. 383, 386, 372 A.2d 746, 748 (1977); Restifo v. McDonald, 426 Pa. 5, 230 A.2d 199 (1967).

A review of the record reveals that the Dublins signed a general release in 1983. Buttermore I was not decided by this Court until 1987. In 1983, suit by both the Dublins and their minor son would have been precluded against appellants herein. See Wolbach v. Fay, supra. They have neither alleged nor proven fraud, accident or mistake at the time of signing. See Wolbach v. Fay, supra; Emery v. Mackiewicz, supra. The plain language of the release bars further claims against “any other person ... charged or chargeable” by the Dublins or Bernard. The law at that time promulgated by the Supreme Court of Pennsylvania, see e.g. Wolbach v. Fay, supra, would have barred the instant suit by finding that the plain language of the release precluded it. We, therefore, disagree with the trial court’s assumption that court approval of the settlement was obtained under the rule established in Buttermore I.

Settlement of a minor’s action requires court approval. Pa.R.Civ.P. 2039(a) provides that “[n]o action to which a minor is a party shall be compromised, settled, or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.” Settlement agreements signed by a minor’s guardian become binding on the minor as soon as the court approves the negotiated settlement. Dengler v. Crisman, 358 Pa.Super. 158, 162, 516 A.2d 1231, 1233 (1986). Specific approval of a release in the interest of the minor is not required. Id., 358 Pa.Superior Ct. at 166-167, 516 A.2d at 1235. See also Moore v. Gates, 398 Pa.Super. 211, 217, 580 A.2d 1138, 1141 (1990) (additional judicial approval of settlement by Orphan’s Court unnecessary where trial court in which survival action is pending had given approval to settlement).

The Dublins submitted a petition for approval of the settlement to the trial court individually and on behalf of their minor son, Bernard. They received court approval on July 19,1983. Once the trial court approved the settlement, it became binding on Bernard. Bernard’s parents then executed the release in question on Bernard’s behalf.

The release provided in pertinent part:

In consideration of the payment, to the undersigned, of the sum of $50,000 ... the undersigned parent[s] and guardianfs] of Bernard Dublin, Jr., a minor, do forever release, discharge and covenant hold harmless Harry E. Genther and any other person, firm or corporation charged or chargeable with responsibility or liability, their heirs, administrators, executors, successors and assigns, from any and all claims, demands, damages, costs expenses, loss of services, actions and causes of action ... particularly on account of all personal injury, disability, property damage, loss or damages of any kind of sustained or that may hereinafter be sustained by the said minor or by the undersigned, in consequences of an accident that occurred on or about the second day of August, 1981____
The undersigned agreed as a further consideration and inducement for this release and indemnity agreement, that it shall apply to all unknown and unanticipated injuries and damages directly and indirectly resulting from the said accident, as well as to those disclosed. The undersigned understand ... that said payment in compromise is made to terminate further controversy respecting all claims for damages that said minor or the undersigned have heretofore asserted or might personally or through personal representatives hereafter assert because of said accident.

Release, dated 7/19/83 (emphasis added). The release in question was executed by the parties pursuant to a judicially-approved settlement. The parties clearly contemplated that both Bernard and his parents would be bound by the instant release. The final paragraph of the release, explicitly precludes further claims by Bernard. We, therefore, find that no further judicial approval was needed where the parties’ executed a release on behalf of their minor son pursuant to a judicially-approved settlement.

Viewing both the record and the applicable law in the light most favorable to Bernard, as the non-moving party herein, we find that the trial court erred in refusing to grant appellants’ motion for summary judgment. The July 19, 1983 release bars all further claims by the Dublins or Bernard against Henry Genther as well as “any other person, firm or corporation charged or chargeable ... [with] ... injuries and damages directly and indirectly resulting from said accident,” which includes appellant-Hospital and appellants-Doctors. We, therefore, reverse and remand for proceedings consistent with this opinion.

Jurisdiction relinquished.

      . Appellant-Shuster was in the process of obtaining a cineradiograph, (a videotaped x-ray in motion), to diagnose Bernard’s condition.

      . In Buttermore, we held entry of summary judgment for the defendant-hospital erroneous where the evidence did not support a finding that the parties — the plaintiff-husband and the defendant-hospital— executed the release with the intent to preclude suit against the medical care provider. Buttermore v. Aliquippa Hosp., 368 Pa.Super. at 60, 533 A.2d at 486. This Court also upheld the plaintiff-wife's claim for loss of consortium. Because plaintiff-wife had not signed the release, we found that she could not be bound by its provisions.

      . We note that the instant appeals, which were consolidated on February 2, 1991, are properly before us pursuant to Pa.R.A.P. 1311.

      . This finding is implicit in the trial court’s decision. We note that the release bars further actions for injuries resulting directly or indirectly from the accident. Had the trial court found Bernard's neck injury did not directly or indirectly result from the accident, it would not have barred either claim against appellants.