author: FORD ELLIOTT, Judge:

text:
    654 A.2d 1159
    COMMONWEALTH of Pennsylvania, v. Daren S. BROWDIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1994.
    Filed Feb. 8, 1995.

      Robert L. Foreman, Pittsburgh, for appellant.
    Michael Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

Appellant was charged with criminal homicide, 18 Pa.C.S.A. § 2501, as a result of the death of his nine-month old stepdaughter by traumatic asphyxiation. A jury, charged on murder in the third degree and involuntary manslaughter, found appellant guilty of murder in the third degree, pursuant to 18 Pa.C.S.A. § 2502(c). Following the denial of timely post-trial motions, appellant was sentenced to a period of incarceration of not less than eight (8) nor more than sixteen (16) years. This appeal followed. We affirm.

Appellant raises five issues on appeal:

I. Was the [appellant] entitled to have the jury instructed on voluntary manslaughter?
II. Was the pediatrician [Dr. Davis] competent to testify as to the cause of death?
III. Was the test used as the basis for the pediatrician’s testimony established as being generally accepted in the appropriate field of medicine?
IV. Was the [appellant] improperly restricted in his cross-examination of the pediatrician?
V. Did counsel for the Commonwealth violate the rules of discovery by withholding, for months, information of a change in the forensic pathologist’s expert opinion until the day of trial?

We will address these issues in order after a brief review of the relevant facts.

The victim, Lindsay Whitaker, was born September 30, 1990, and died July 21, 1991. Her mother Shannon, a single parent, became acquainted with appellant in late January 1991. In the months that followed, Shannon and appellant became romantically involved, marrying in mid-April 1991. (Notes of testimony, 10/13/92 at 63, 65-66.) From the beginning of their relationship, appellant appeared to have a strong interest in Lindsay, often offering to bathe her, change her, or feed her, even to the exclusion of other caregivers. (Notes of testimony, 10/13/92 at 36-38, 63-65.)

In late April or early May 1991, Shannon for the first time began to notice small bruises on Lindsay’s back, along her hairline, and on her arms. (Notes of testimony, 10/13/92 at 70.) The bruising, always in different places, continued throughout the late spring and early summer, with the result that Shannon repeatedly sought medical treatment for Lindsay in an attempt to diagnose the cause. During this same period, appellant was increasingly entrusted with Lindsay’s care while Shannon attended school or worked. As the weeks passed, however, Lindsay developed a “daddy fear” of appellant, and cried whenever he appeared. She did not react like this to other males. (Notes of testimony, 10/13/92 at 70-74.)

By early July, Lindsay was screaming constantly when appellant held her. Having been told that Lindsay was just going through a stage, and that Lindsay would “warm up” to appellant if she could not choose her mother, Shannon arranged special “daddy and Lindsay” times. During one of these, on July 7, 1991, Shannon returned after only a moment’s absence during which she had left appellant giving Lindsay a bottle to find that Lindsay had stopped breathing and passed out. Lindsay revived immediately after appellant handed her to Shannon. An examination in the emergency room at Children’s Hospital revealed an enlarged liver. (Notes of testimony, 10/13/92 at 76-80.) Subsequent examinations during check-ups on July 10 and 11, 1991, revealed more bruising and a large red pinch mark on Lindsay’s side. The examination also revealed a slightly enlarged liver. In addition, test results from Children’s Hospital indicated abnormal liver function. As a result, the pediatrician who examined Lindsay called in a hematologist to assist him in evaluating Lindsay’s condition. (Notes of testimony, 10/13-15/92 at 81, 264-266.)

The following Sunday, July 14, 1991, Shannon found Lindsay convulsing in her crib moments after appellant took her into the bedroom and closed the door. Appellant was standing beside the crib watching and had made no effort to seek help from Shannon, who was trained in infant CPR, during the 20 seconds he said Lindsay had been “like that.” (Notes of testimony, 10/13/92 at 82-87, 101.) Following .a battery of tests at Children’s Hospital on the 14th, Lindsay was then admitted for four more days of testing on the 15th. During her hospital stay, the bruises faded and there were no additional seizure-like episodes. (Notes of testimony, 10/13/92 at 91.) Test results revealed a possible healing fracture of the tibia: the abdominal ultrasound and CT scan were normal. (Notes of testimony, 10/15/92 at 332-337.)

One week later, on Sunday, July 21,1991, Lindsay Whitaker was found dead in her crib in the morning when her mother, informed by appellant that “Lindsay doesn’t look good,” rushed into her room. Lindsay was cold and hard to the touch, her tongue was swollen and protruding from her mouth, and she was gray in color. It was determined that rigor mortis had already set in; Lindsay had been dead for several hours. (Notes of testimony, 10/13-14/92 at 100-101, 194-195, 197, 202.) Appellant’s statement to the police concerning the events of the previous evening was as follows:

[APPELLANT]: Shannon put the baby to bed about 12:30, quarter to one, and she was sleeping and Shannon went to bed and I was up for a little bit and she was still sleeping and then I came in her bedroom to go to the bathroom, which was right next door to her room and I was being as quiet as possible and I must a [sic] made a little bit of a noise and she started fussing, she started crying.... And, you know, I thought why has she woken up, so I went over to the crib and I picked her up and I was holding her for like four minutes. I was holding her kinda tight ... I was holding her kinda tight, yes.
[POLICE OFFICER]: ... [W]hy were you holding her tight like that?
[APPELLANT]: Well, to keep her from falling and also she was fussing severely.
[POLICE OFFICER]: O.K., did it frustrate you that she was fussing severely and that’s why you were holding her so tightly?
[APPELLANT]: Yea, I realize why she would, she never wakes up in the night. She never, I mean, she sleeps, she’s a good baby, she sleeps through the night ... And I was wondering ... she had her bottle and she should have been sleeping and I was ready to go to bed and I didn’t want, you know, Shannon to wake up and be upset and everything and wonder.
[POLICE OFFICER]: O.K., and at what point in time then did she quit fussing and she stopped moving?
[APPELLANT]: I’d say at like, like a little bit before two.
[POLICE OFFICER]: I mean, after you were holding the baby, how long did it take before the baby quit moving all together?
[APPELLANT]: Like four minutes----
[POLICE OFFICER]: O.K., when you looked at the baby, did you realize the baby was dead?
[APPELLANT]: Not at first and then, then when I laid her in her crib she, she wasn’t moving very, she wasn’t moving.
[POLICE OFFICER]: She wasn’t moving ... O.K., did you realize she was dead at that point?
[APPELLANT]: Very much so, yes.
[POLICE OFFICER]: And what did you do then?
[APPELLANT]: I couldn’t sleep very well and I didn’t know what to do, I knew that the morning would come soon and I would have to, and we would have to deal with it.

(Notes of testimony, 10/14/92 at 243, transcript of appellant’s statement attached to trial court opinion.)

Appellant’s first issue concerns the charge to the jury. When reviewing a jury charge, an appellate court must look at the charge as a whole before deciding to reverse. Alleged errors in jury instructions must be considered in relation to the entire charge and in light of the evidence. Hahn v. Richter, 427 Pa.Super. 130, 628 A.2d 860 (1993).

Appellant requested a charge on voluntary manslaughter, to which the prosecution assented. The trial judge, however, refused to read the “heat of passion” manslaughter charge, which provides:

(a) General rule. — A person who Mils an individual without lawful justification commits voluntary manslaughter if at the time of the Mlling he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual Mlled; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

18 Pa.C.S.A. § 2503(a). “Serious provocation” is defined at 18 Pa.C.S.A. § 2301 as “[cjonduct sufficient to excite an intense passion in a reasonable person.” Appellant alleges that the trial court was required to charge the jury on “heat of passion” voluntary manslaughter if requested to do so. In support of his argument, appellant cites a line of cases the precursor of which was Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). As the learned trial judge opined in his analysis of the case law in this area, however:

The law in this area has evolved slowly. In Commonwealth v. Jones, [citation omitted] the supreme court held that a defendant under indictment of murder was entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter. Although Jones was based upon a killing under the Penal Code of 1939, the rule was extended to cover a murder brought under the Crimes Code of 1972.
See Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978). Then, in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), it was held that the rule of Jones had no application to ‘unreasonable belief voluntary manslaughter. Carter did not decide the propriety of charging the jury on ‘heat of passion’ voluntary manslaughter in the absence of evidence of such passion.

(Trial court opinion, 5/5/94 at 8.) We are, therefore, left with' two issues: first, was there any evidence of “heat of passion” as delineated in the statute; and second, if not, was the trial court required to charge on “heat of passion” voluntary manslaughter absent any evidence supporting such a verdict?

The first issue is the simpler. As the trial court said, it had seen “absolutely not one scintilla of evidence of voluntary manslaughter.” (Notes of testimony, 10/23/92 at 1232.) Even if we were to give credence to appellant’s testimony that he was under stress as a result of the events of the previous two weeks, his wife’s angry outbursts, and his parents’ disapprobation (see notes of testimony, 10/21/92 at 969-979), nevertheless, this court adamantly refuses to extend the definition of “serious provocation” for purposes of a “heat of passion” voluntary manslaughter verdict to include squeezing a nine-month old infant to death due to frustration with her fussing. Additionally, appellant’s leaving the baby in her crib all night instead of asking his wife, who was trained in infant CPR, to try to resuscitate the child, removes any shred of spontaneity from this crime. Having determined that the trial court was correct in finding no evidence to support a finding of voluntary manslaughter, we next turn to the issue of whether appellant was entitled to a voluntary manslaughter charge upon request, absent such evidence.

Different panels of this court, interpreting Carter, supra, have come to different conclusions on this issue. In Commonwealth v. Mignogna, 401 Pa.Super. 188, 585 A.2d 1 (1990), appeal denied, 530 Pa. 660, 609 A.2d 167 (1992), a panel of this court held:

While we agree that Jones requires the provision .of a heat-of-passion voluntary manslaughter instruction to a jury upon request and even in the absence of evidence to support it, we observe that the principle of Jones was greatly eroded by the supreme court in Commonwealth v. Carter [citation omitted].... [S]ince Carter overruled Jones only as to the issuance of an instruction on section 2503(b) [unreasonable belief voluntary manslaughter], we have held that we are obligated to apply the rule of Jones where a request for a heat-of-passion instruction has been made.

Id. 401 Pa.Super. at 203-04, 585 A.2d at 8, citing Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987).

On the other hand, several panels of this court have held that a trial court does not commit error:

by refusing a defense request to charge on ‘heat of passion’ voluntary manslaughter where such a defense was not made an issue at trial and where the evidence would not reasonably have supported such a finding. We are unable to conclude rationally that a different rule should obtain where voluntary manslaughter is based on ‘heat of passion’ than where it is based on ‘unreasonable belief.’

Commonwealth v. Toledo, 365 Pa.Super. 224, 231, 529 A.2d 480, 484 (1987). As the Toledo court argued:

The fact that Jones has not been overruled expressly by the Supreme Court does not mean that inferior courts can blithely ignore the subsequent history of its holding or the guidance given by the Supreme Court in the foregoing footnote.

Id. at 231, 529 A.2d at 484. Similarly, another panel of this court in Commonwealth v. Hernandez, 412 Pa.Super. 485, 489-91, 603 A.2d 1039, 1042 (1992), ruled that “no vestige of Jones remains,” and that, absent supporting evidence, no charge on “heat of passion” voluntary manslaughter need be given upon request.

We are persuaded by the latter argument. The Jones rule had its basis in the common law “mercy dispensing power” of the jury. Jones, 457 Pa. at 568-70, 319 A.2d at 146. Then Chief Justice Nix, who authored the Jones opinion, opined in his dissent in Manning, supra, that the enactment of the 1972 Crimes Code provided the court with an opportunity to reassess the “wisdom and present utility” of such common law principles:

In my judgment neither lesser included offense nor the mercy dispensing power provide a compelling reason for the adoption of the [Jones] rule today by the majority. An analysis of the lesser included offense approach would suggest that it is only compelling in those instances where there exists a factual dispute as to the presence or absence of an element of the greater offense, which element is not a component part of the lesser offense---- Where the controversy centers around elements common to both the greater and the lesser offenses, it is arbitrary and capricious to allow a fact finder the freedom to choose the verdict to be returned.
I am also unimpressed by those arguments offered by those who advocate vesting in the jury some undefined quantum of ‘mercy dispensing power.’ As noted in [Commonwealth v.] Gartner and Pfaff, [475 Pa. 512, 381 A.2d 114] (1977) ‘the term “mercy dispensing power” is merely an [sic] euphemism to justify a rationally unsupportable verdict.’ ‘Not only does this approach invite arbitrary action by juries, it also leaves a reviewing court powerless to ascertain and to remedy discriminatory verdicts.’

Manning, 477 Pa. at 504, 384 A.2d at 1201 (Nix, J. dissenting) (citations omitted) (emphasis in original). We agree.

Furthermore, even if appellant were entitled to a charge on voluntary manslaughter, we agree with the Commonwealth that he has not been prejudiced by its omission. The trial court did charge the jury on involuntary manslaughter. (Notes of testimony,' 10/23/93 at 1311-1312.) As a result, the jury could have exercised whatever “mercy dispensing power” it has by finding appellant guilty of involuntary manslaughter instead of murder in the third degree. Even the Mignogna court, which followed the Jones rule, found that the failure to charge on voluntary manslaughter, “heat of passion” was harmless error where the jury was instructed on a lesser degree of culpability than the one on which they returned a verdict. Mignogna, 401 Pa.Super. at 202-04, 585 A.2d at 8. See also Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987); Commonwealth v. Haynes, 395 Pa.Super. 322, 577 A.2d 564 (1990); Commonwealth v. Griffin, 357 Pa.Super. 308, 515 A.2d 1382 (1986).

Appellant’s next three issues relate to the admissibility of testimony by Dr. Davis, a pediatrician in charge of Children’s Hospital’s emergency department. The first of these relates to the trial court’s decision to allow Dr. Davis to testify as to the cause of death, and to base her finding on her review of the autopsy report. Appellant argues that, while Dr. Davis was eminently qualified in her field of expertise, that expertise did not include determining the cause of death, nor did it include reviewing autopsy reports. (Appellant’s brief at 16-17.) In support of his argument, appellant cites McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436 (1987), which held that an anesthesiologist with extensive and impressive pharmacology experience in anesthetics was not qualified as an expert to give testimony regarding the cause of death of a patient who died, allegedly from negligent administration of an antibiotic. Id. at 609-13, 533 A.2d at 441-442.

In order for this court to overrule a decision by the trial court on the admissibility of expert testimony, we must find an abuse of discretion. As this court has recently stated:

‘The determination of whether a person is qualified as an expert in [a] particular field is left to the discretion of the trial judge. Furthermore, that determination is based solely on whether their opinion will aid the trier of fact in finding the truth of the issues involved.’ ... And, we will not reverse such a determination absent a clear abuse of discretion.

Commonwealth v. Berrena, 421 Pa.Super. 247, 251, 617 A.2d 1278, 1280 (1992) (citations omitted). In addition, in Pennsylvania, the standard of qualification of an expert is a liberal one:

‘If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury-’

McDaniel, 367 Pa.Super. at 608, 533 A.2d at 440 (citations omitted). Furthermore, Pennsylvania allows a physician to testify in a field outside his or her area of specialty, providing the physician has experience in another related field or the areas overlap. See, e.g., Kearns v. Clark, 343 Pa.Super. 30, 493 A.2d 1358 (1985) (urologist qualified to testify regarding surgeon’s performance of a hysterectomy where urologist had assisted in performance of other hysterectomies); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982) (pharmacology professor qualified to testify regarding drug administered to patient post-operatively by orthopedic surgeon).

In the instant case, Dr. Davis is the medical director of the Emergency department at Children’s Hospital, an Associate Professor of Pediatrics at the University of Pittsburgh School of Medicine, and a member of the Attorney General’s medical legal advisory board on child abuse and neglect. In addition, Dr. Davis performed 58 autopsies and assisted in 24 others while in medical school. She has also been required, as part of her duties as medical director since 1978, to “review every case in which a patient undergoes cardiopulmonary resuscitation, dies in the Emergency department or is dead on arrival, and part of that review includes reviewing the postmortem findings or the reports whether from [the hospital’s] department of pathology or from the coroner’s office.” (Notes of testimony, 10/19/92 at 588.) Furthermore, her duties on the Attorney General’s advisory board require her regularly to discuss and consult with'- forensic pathologists in order to determine whether a child fatality is the result of abuse or some other cause. (Notes of testimony, 10/19/92 at 588-589.) As a result of the foregoing, we cannot find that the trial court abused its discretion by allowing Dr. Davis to testify as to the cause of Lindsay’s death, nor to her basing that finding in part on an autopsy report prepared by a forensic pathologist.

Appellant’s next issue with Dr. Davis’ testimony concerns her use of a theory she and her colleagues extrapolated from an article in a technical journal on the relationship between elevated liver enzymes and child abuse. Appellant agrees that the article itself was admissible, having met the standard enunciated in Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992):

This Court has long recognized that in order for an expert to testify about a matter, the subject about which an expert will testify must have been ‘sufficiently established to have gained general acceptance in the particular field to which it belongs.’

Id. at 173, 602 A.2d at 832 (citations omitted). Nevertheless, appellant argues that Dr. Davis’ theory, that elevated liver enzymes could result from a bruise to the liver not recorded on a CT scan, was not admissible because the theory was not generally accepted in any field. (Appellant’s brief at 20.) Appellant appears, however, to have hoisted himself on his own petard by citing Frye v. United States, 293 F. 1013 (D.C.1923), in which the standard adopted by many jurisdictions, including Pennsylvania, was stated as follows:

‘... while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’

Commonwealth v. Nazarovitch, 496 Pa. 97, 101, 436 A.2d 170, 172 (1981), quoting Frye, 293 F. at 1019 (emphasis in original). In the instant case, Dr. Davis’ theory is nothing more than a logical deduction from the admittedly acceptable journal article. (Appellant’s brief at 18.) The article reported that three out of four children with elevated liver enzyme levels had lacerations to the liver that were documented by later CT scans. (Appendix to appellant’s brief, and notes of testimony, 10/19/92 at 693.) A logical inference is that the fourth child had the type of liver injury that would not appear on a CT scan, such as a bruise. This is Dr.. Davis’ theory, which the jury was free to give whatever weight it felt the theory deserved. '

In addition, even if Dr. Davis’ theory were somehow inadmissible, neither her theory nor the journal article were the basis for Dr. Davis’ findings as to cause of death. Rather, her finding that death was caused by traumatic asphyxiation was based solely on the autopsy report and the hospital reports. (Notes of testimony, 10/19/92 at 630-642, 666-667.) As a result, appellant can claim no prejudice in this regard.

The last issue appellant raises with regard to Dr. Davis’ testimony is that the trial court erred in restricting the scope of appellant’s cross-examination of Dr. Davis regarding the “classic findings, risk factors and red flags of child abuse.” (Trial court opinion, 5/5/94 at 14, citing Statement of Matters Complained of on Appeal at 5.) In particular, appellant claims that Dr. Davis opened the door to questions about the profile of a child abuser when she responded to a question from defense counsel as follows:

Q: May I also assume correctly that no such [child abuse] report was made by you or the emergency department in this case?
A: That’s correct. And the reason for that was that we felt at the time [Lindsay] was seen initially that she could well have had a bleeding disorder or bleeding related to her hepatic dysfunction. It was not until further studies had been done that we were able to rule that out. We also had a parent who was very warm, caring, interacting very well with the child who seemed appropriately concerned and was not conveying to us major risk factors and red flags that we ordinarily see in abuse cases.

(Notes of testimony, 10/19/92 at 644, 689-692.) When defense counsel attempted to pursue this topic, asking Dr. Davis to testify as to the classical backgrounds and behavior of child abusers, the Commonwealth objected. The trial court sustained the objection based on the irrelevance of the testimony and Dr. Davis’ lack of qualification to testify as to the psychological profile of child abusers. (Notes of testimony, 10/19/92 at 688-692.)

As stated supra, we review a trial court’s decisions on the admissibility of evidence under a "“clear abuse of discretion” standard. Commonwealth v. Johnson, 536 Pa. 153, 157, 638 A.2d 940, 942 (1994). While we may have ruled otherwise on the relevance of testimony as to the psychological profile of child abusers to this case, nevertheless, we do not find a clear abuse of discretion. Appellant was not allowed to cross-examine this witness on this issue. He was not, however, precluded from introducing his own expert witness to testify as to the psychological aspects of child abuse as part of a strategy to draw attention to Shannon as the possible abuser. (Notes of testimony, 10/19/92 at 700-703; appellee’s brief at 60.) It would therefore appear that the trial judge was more concerned with the qualifications of this medical doctor, who had been qualified as an expert on cause of death, to testify as an expert regarding a psychological issue. (Notes of testimony, 10/16-19/92 at 549, 692.) In addition, the trial court offered to cure any prejudice Dr. Davis’ comments may have caused by giving a limiting instruction; however, this offer was declined by defense counsel. (Notes of testimony, 10/19/92 at 692, 703.) As a result, appellant cannot now be heard to claim prejudice.

This brings us to appellant’s final issue; namely, that the Commonwealth violated Pa.R.Crim.P. 305 by not disclosing prior to trial that Dr. Hiserodt would testify that “squeezing,” as opposed to punching or falling, was the likely cause of Lindsay’s death. (Appellant’s brief at 25.) The basis for appellant’s claim of unfair surprise is that at the coroner’s inquest, Dr. Hiserodt testified that Lindsay died of blunt force trauma, which includes punching, falling from a significant height, or squeezing. (Transcript of coroner’s hearing [Tr.] at 9-10.) Of these, Dr. Hiserodt opined that squeezing was the least likely. (Tr. at 10, 16.) Dr. Hiserodt, a relatively inexperienced pathologist at the time the autopsy was performed (see notes of testimony, 10/15/92 at 378-384), noted that Lindsay had hemorrhages to internal organs including the pancreas and the adrenal gland, a bruised lung, a fractured rib, and a subdural hematoma. (Notes of testimony, 10/16/92 at 339^400, 402.) Until he reviewed his notes and reports in preparation for trial and consulted with senior pathologists, he was of the opinion that such injuries were more likely the result of a punch or a fall than a squeeze. (Tr. at 16, notes of testimony, 10/16/92 at 402-407, 504-508.) Several months before trial, however, Dr. Hiserodt decided that squeezing, when applied to a baby, was the most logical explanation for the injuries suffered by Lindsay. Dr. Hiserodt maintained in his testimony that a “squeeze” is the layman’s term for traumatic asphyxiation, in which death results from lack of oxygen due to the inability of the chest to expand to take in air. (Notes of testimony, 10/16/92 at 406.) As a result, when he and counsel for the Commonwealth met on October 13, 1992, to go over Dr. Hiserodt’s testimony, Dr. Hiserodt interjected the term “traumatic asphyxiation” for the first time. (Notes of testimony, 10/16/92 at 407.)

Appellant bases his claim of unfair surprise on the fact that he learned of Dr. Hiserodt’s “new” theory on the first day of trial, October 13, 1992, and that his trial strategy was thereby compromised. (Appellant’s brief at 28.) The trial court, in denying appellant any Rule 305 relief, ruled that appellant had been put on notice of the possibility of a “squeezing” theory either by Dr. Hiserodt’s own testimony at the coroner’s inquest, in which he interjected it as the third choice mechanism of cause of death, or by Dr. Davis’ report in which Dr. Davis stated with a high degree of medical certainty that Lindsay died as a result of:

severe crushing blunt force trauma.... [I]t is quite possible that Lindsay could have become hypoxic (low oxygen) following the head injury or more likely died as a result of lack of oxygen from crushing of her chest and abdomen and/or prolonged chest and abdominal compression, or some other form of suffocation.

(Notes of testimony, 10/16/92 at 412; Commonwealth Exhibit 1 at 5-6.)

Appellant attempts to argue that his strategy at trial was to pit the two Commonwealth experts against each other since they had conflicting views as to the cause of death. This argument is specious at best. While Dr. Hiserodt may have leaned toward an alternative form of blunt force trauma at the coroner’s inquest, his testimony certainly did not contradict Dr. Davis’ findings or rule out the possibility that the death was caused by “squeezing.” (Tr. at 10, 16.) Furthermore, appellant’s own statement to the police, standing alone, put appellant on notice that “squeezing” would be a theory the Commonwealth would explore: “I was holding her kinda tight, yes.” (Transcript of appellant’s statement to police, attached to trial court opinion.)

Accordingly, having found no merit in any of appellant’s arguments, the judgment of sentence is hereby affirmed. Jurisdiction relinquished.

DEL SOLE, J. concurs in the result.

      . This is the term used by Shannon to describe Lindsay's reaction to appellant.

      . The court is referring to a footnote in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), in which the supreme court stated, without dissent that:
      There is little or no vitality left to this practice which stems from this Court's decisions in Commonwealth v. Jones and Commonwealth v. Manning 477 Pa. 495, 384 A.2d 1197 (1978). The continuing validity of the rule was seriously undermined by our decisions holding that an instruction on involuntary manslaughter may be given only where the evidence would support such a verdict. The death knell to the practice regarding instructions on voluntary manslaughter was sounded in Commonwealth v. Carter wherein a majority of this Court held that a trial court may charge on the ‘unreasonable belief' subclass of voluntary manslaughter only where evidence exists that would support such a verdict. The majority did not decide the propriety of the practice of charging the jury on ‘heat of passion’ voluntary manslaughter in the absence of evidence, although the concurring opinions of this author and Mr. Justice McDermott would have abolished that practice as well.

        Id. 504 Pa. at 450 n. 10, 475 A.2d at 711 n. 10 (citations omitted).

      . Our position is strengthened by our supreme court's recent statement in Commonwealth v. Williams, 537 Pa. 1, 30-31, 640 A.2d 1251, 1266 (1994), that Carter, supra, held that the trial court may charge on voluntary manslaughter only where evidence exists to support such a verdict. The supreme court appears to be saying that, not only is the trial court under no mandate to charge the jury on voluntary manslaughter when such a charge is requested, the court may not charge on voluntary manslaughter absent evidence to support such a verdict.

      . 18 Pa.C.S.A. § 2504(a) General rule. — A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

      . Rule 305 provides in pertinent part:
      B. Disclosure by the Commonwealth.
      (1) Mandatory. In all court cases, on request by the defendant ... the Commonwealth shall disclose to the defendant’s attorney ...
      (e) results or reports of scientific tests, expert opinions ...
      D. Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence ... which is subject to discovery or inspection under this rule ... such party shall promptly notify the opposing party or the court ...


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Shaffer v. Reynoldsville Borough, Appellant.

      Evidence — Witness—Opinion of witness — Grounds for opinion — Real estate values — Road law.

    1. Where a witness properly qualified has given an opinion as to real estate values, he may be permitted to state the grounds upon which his opinion is based.
    2. In a proceeding to assess damages for injuries to land caused by the change of grade of a street, a witness may be permitted to state the cost of restoring the property to its former state of ease of access from the street, not as an independent and distinct item of damages, but as furnishing some moans to enable the jury to determine how much less the property is worth after the change of grade than it was before.
    Argued May 2,1910.
    Appeal, No. 29, April T., 1910, by defendant, from judgment of C. P. Jefferson Co., Aug. T., 1905, No. 9, on verdict for plaintiff in cáse of Jennie J. Shaffer v. Reynoldsville Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from report of viewers. Before Reed, P. J. At the trial it appeared that the defendant borough had raised the grade of Main street in front of the plaintiffs premises in 1904. Plaintiff contended that the raising of the grade had cut off access from the street to her property, and that it had depreciated the market value of the property to the extent of $300.
    When Joseph Shaffer, a witness for the plaintiff, was on the stand he was asked this question:
    “Q. What was necessary to be done to restore this property to its former usefulness? A. To put in these new sills, you mean? Q. To restore this property so that it would be as convenient to the grade of the street as it was before that?- A. I gave my estimate. Q. Did the house have to be raised? A. To fill in the lot and raise the house. Q. What did it cost to raise that building? ”
    Objected to. As an element of market value this cannot come in this way.
    The Court: If it was necessary to raise the building I think that would be one of the elements to be considered.
    Mr. Flynn: The courts have decided that the cost of raising the building or of filling is immaterial and irrelevant and cannot be asked.
    The Court: I do not so understand the law. If it is necessary to fill or to raise the building those are elements of damage. After all it comes back to the question of whether there was any depreciation in the market valué of the property by reason of the improvements, but that does not preclude the defendant from showing the elements that entered into it.
    Mr. Corbet: The question is objected to as incompetent, irrelevant and immaterial.
    The Court: The witness has stated that in order to restore this building so that it would be as convenient and in as good condition as it was prior to the change of the grade in the street that it was necessary to raise the building and fill in the lot. And while the cost of restoring the building cannot be introduced in evidence as the measure of damages in this case, we think it is an element to be considered by the jury with all the other facts and circumstances in the case. The objection is overruled and the testimony admitted. And at the request 1, (1910).] Statement of Facts — Opinion of the Court.
    July 20, 1910:
    of its counsel a bill of exceptions is sealed to the defendant. [1]
    Verdict and judgment for plaintiff for $246. Defendant appealed.

      Errors assigned were (1) admission of the evidence of Joseph Shaffer and (2) refusal to strike it off.

      Charles Corbet, with him Clement W. Flynn, for appellant.
    We submit the matters we complain of were inadmissible under the decisions: Allegheny v. Black, 99 Pa. 152; Chambers v. South Chester Boro., 140 Pa. 510; Grugan v. Phila., 158 Pa. 337; Shano v. Bridge Co., 189 Pa. 245; Mead v. Pittsburg, 194 Pa. 392; McCombs v. Pittsburg, 194 Pa. 348; Bond v. Phila., 218 Pa. 475; Edsall v. Jersey Shore Boro., 220 Pa. 591; Markle v. Phila., 163 Pa. 344.

      Geo. M: McDonald, with him A. L. Cole, for appellee,
    cited: Patton v. Phila., 175 Pa. 88; Mead v. Pittsburg, 194 Pa. 392; Wilkey v. Phila., 180 Pa. 146.
   Opinion by

Henderson, J.,

The action of the court in admitting the evidence contained in the first assignment was in accordance with the decisions in Chambers v. South Chester Boro., 140 Pa. 510; Dawson v. Pittsburg, 159 Pa. 317, and Patton v. Phila., 175 Pa. 88. It is not to be doubted that the measure of damages is the difference in value before and after the improvement and the inquiry of the jury must be directed to a finding on that point, but this does not mean that when a witness has given his opinion as to these values he is not permitted to state the reasons which lead him to the conclusion given in his testimony. One witness may have a more convincing reason for his opinion than another and the opinion so backed up and supported would aid the jury much more in arriving at a just verdict than would the unexplained opinion. The injury complained of was that the city had elevated the street and thereby made the property of the appellee less accessible and convenient, and one means of ascertaining the extent of this injury is the cost of restoring the property to its former state of ease of access from the street. Evidence of this character is not admissible as an independent item to be added to others to make up the aggregate of the owner’s loss, but it furnishes some light to direct the jury in determining how much less the property is worth after the change than it was before. In Mead v. Pittsburg, 194 Pa. 392, it was said: “In Patton v. Philadelphia, 175 Pa. 88, the natural condition of the property with reference to the street was changed. The grade was elevated and this created a depression of the land below the grade which had never before existed. This was an element of damage in the determination of which we held that it was competent to prove the cost of establishing a new connection with the street, as something to be considered in determining the change in value. In such a case we held this proof should be received for the proper information of the jury.” It goes without saying that evidence of the cost of producing a condition of the property which had never before existed would be incompetent and that was the controlling consideration in Bond v. Phila., 218 Pa. 475. There the lot was five feet below the surface of the street before the change of grade and after the change was sixteen feet below the surface. The proposition was to prove what it would cost to bring the surface of the whole lot up to a level five feet below the street as elevated. With reference to that the court said: “The whole lot of the plaintiff having already been below the level of the adjoining streets the plaintiff is not entitled to have his entire property lifted up to a level with the street as is made by raising the grade. There is simply an increase in the elevation of the grade and the fact of such additional elevation as affecting the value of the property after the change, may be shown, but not the specific cost of changing the whole surface of the property by lifting it all up to a new grade.” In the same opinion the court referring to Mead v. Pittsburg,. 194 Pa. 392, said: “The opinion recognized the right to show the cost of restoration to the original condition where such expenditure is a necessary one; as where by a change in the grade of a street a lot, which before was on a level with the street, has been left above or below it.” It was further said with reference to that case, “The plain logic of the decision is that where conditions have been interfered with which called for no change in order to make the land available and adaptable for the purposes which determine its market value .... the restoration of these conditions is what the general buyer would contemplate, and the cost of such restoration is to be regarded as a necessary expenditure for which the party is entitled to compensation; not, however, to be made the basis of specific recovery, but to be considered as an element affecting the market value of the land.” Edsall v. Jersey Shore Boro., 220 Pa. 591, is not inconsistent with these cases but approves them. The offer in the court below in that case was to prove by a civil engineer in the service of the N. Y. Central Railroad that the Edsall building should be raised to the new grade and to prove by the witness what that would cost. The trial judge in passing on the competency of the evidence stated that after a witness had given his estimate of the market value of the property before and after the change it would be competent to show by him of what items his estimate was made up but that it was not permissible to introduce as a distinct proposition independent of the question as to whether or not the change affected the market value of the property as a whole what the cost of raising the building would be. And it was this ruling which was approved by the Supreme Court. The facts in the appellee’s case bring it within the principle of these decisions. Her property was at grade with the street before the change and was adapted to the uses to which it was then put. The elevation of the street made the property less valuable and involved the necessary expense of a change which would give convenient access to the street. .To overcome this disadvantage an outlay would be necessary and the amount of this would be one of the considerations which would aid largely in determining what damage had been caused by the elevation of the street. The witness had testified in regard to the amount of damage resulting from the change, and evidence of the cost of the grading was admitted not to permit the owner to recover for that as a distinct item of damage but to give some indication of the basis of the estimate of the witness on the whole amount of the damage, the witness having stated that in order to restore the building so that it would be as convenient and in as good condition as it was prior to the change in the grade it- was necessary to raise the building and fill in about it. The trial judge said in answer to the objection to the competency of the evidence: “While the cost of restoring the building cannot be introduced in evidence as the measure of damages in this case we think it is an element to be considered by the jury with all of the other facts and circumstances.” This we regard as a correct statement of the law in the light of the decisions cited.

The second assignment raises the same question on a motion to strike out a part of the testimony of the witness. The small items of expense for filling about the house were not admitted by the court as specific elements of damage, as clearly appears from the charge of the court. They relate to work done about the house and not to expense of filling the whole lot, and the reason for overruling the first assignment is equally conclusive with regard to the second.

The judgment is affirmed.


author: Morrison, J.,

text:
    Coughenour v. Charles E. Stewart & Company, Appellant.

      Actions — Trespass—A ssumpsit — Pleading—Demurrer—Landlord and tenant — Injury to demised premises.

    1. Where a lease gives the tenant the right to make certain physical changes on the demised premises such as the taking out of partitions in doors from houses and stalls and mangers in a stable and to replace the same at the tenant’s costs, the lessor cannot after the surrender of the premises to him maintain an action of trespass against the tenant to recover damages for the removal of the partitions and other injuries to the demised premises, and introduce evidence of such removal of partitions and injuries. The only remedy of the lessor is an action of assumpsit for a breach of the contract contained in the lease.
    2. Where in such a case there is nothing whatever in the statement of claim to indicate a contract between the parties, or that the plaintiff intended to try any cause of action but trespass quare clausum fregit, the defendant is not in a position to demur, and the plaintiff cannot allege the failure of defendant to demur as a ground for admitting evidence of the injuries to the demised premises.
    3. Where in such a case one of the plaintiff’s claims is based upon the cutting of a number of trees, and the defendant alleges that the trees were taken with the consent of the plaintiff on an agreement to pay therefor, it is error for the trial judge to instruct the jury that the plaintiff could recover whether there was such an agreement or not.
    4. Where in such a case the plaintiff claims damages for the removal of rails, posts and fencing materials, the court should permit the defendant-to show that such injuries were caused by persons whom he had employed, and that he was in no wise connected with the removal of the materials and their improper use.
    5. Where a plaintiff in an action of trespass quare clausum fregit charges that the trespass had been committed upon a 240 acre farm, portions of which were in the defendant’s possession under a lease when the alleged trespass was committed, the plaintiff is bound to show what portion of the farm the defendants were not in possession of under the lease.
    Argued May 4, 1910.
    Appeal, No. 168, April T., 1910, by defendants, from judgment of .C. P. Somerset Co., Sept. T., 1907, No. 338, on verdict for plaintiff in case of.C. S. Coughenour v. Charles E. Stewart & Company.

      Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass quare clausum fregit.
    At the trial the plaintiff made the following offer:
    Mr. Scott: We propose to prove by the witness on the stand that the dwelling house, stable and other outbuildings were in a good, tenantable condition when the defendants took possession of the same; that the fences were good; the bars and gates and the inclosure around a certain garden on the leased premises were in good condition; that when they surrendered possession of the leased premises, the partitions in the dwelling house were torn away; that the window lights were broken out; that the porch was destroyed, etc., as to the dwelling; as to the stable, the stalls were destroyed, four in number; the weatherboarding torn therefrom, and the outbuilding, to wit, the spring house, was used by the defendants as an oil storage place, and that by reason of the use of said oil it has rendered that building entirely worthless, and another outbuilding, to wit, a coal house, was entirely destroyed; that the fences were torn down, and rails broken and burned.
    Mr. Ruppel: This evidence is objected to for the following reasons: First, it is inadmissible under the pleadings; second, this being an action of trespass, none of the matters contained in the offer can be adjudicated in this proceeding.
    The Court: I think, having joined issue on it, we will overrule the objection and note an exception to the defendants. [1]
    Mr. Scott: “Q. State in what condition you handed over the property, with reference to gates, and fences surrounding the property? A. Everything was in good condition.”
    Mr. Ruppel: I object to this, first, as inadmissible under the pleadings, and second, as the agreement expressly provides for the payment of damages for these items, there can be no recovery in this action, as it is an action of trespass.
    Objection overruled and exception noted to defendants. [2]
    Defendant made this offer:
    Mr. Ruppel: We propose to prove by the witness and others that the persons living in the shanties and who, it is alleged, carried away the rails and posts and fencing material, and used it for firewood, did so of their own responsibility, and that the defendants were not in any wise connected with such- improper use of plaintiff’s material; that the tenants under the defendants were to furnish their own fuel, and some fuel was furnished by the defendants and paid for by the tenants.
    Objected to as immaterial and irrelevant.
    Objection sustained and exception noted to defendants. [3]
    The court charged in part as follows:
    [When the statement was filed, an examination of it would have shown that it involved a variety of claims, some of which were founded on a tort; that is to say, on a wrong or an injury, and some of which were founded upon a direct, distinct contract, so that these various claims were not in harmony with one another, in so far as the form of action adopted by the plaintiff was concerned; in other words, damages for what I have called a tort, or a wrong or an injury, must be recovered in an action of trespass, and the other damages which are sought to be recovered must be recovered in an action of assumpsit, and these various claims were blended in this action. I mention this now only because the question has been argued at length before you on a motion to the court last evening, and was referred to again in the argument of counsel, and I desire to say at this point that that matter is not to concern you one way or another. The court has held that by reason of there having been no demurrer filed, and by reason of the lapse of time and the circumstances, and from the further reason that we thought the rights of the parties could be adjusted without injury to either of them in the form of the action as it now stands, we ruled that we would proceed with this case and try it to its end. So that any of the matters that you may have heard in the discussion relating to whether this is a trespass, whether these damages are claimed upon trespass, or whether part of them, are claimed upon contract, need not concern you.] [4]
    [As to the fences, gates and bars, it is not claimed by the defendantsxthat they had any right to remove them— they or their employees — and if you find that they were destroyed, as the plaintiff contends — find from the whole of the evidence that they were destroyed — you would ascertain the damages or extent of the injury suffered by the plaintiff by the destruction of the fences, gates and bars, and allow that to him as a part of your verdict; and just so, if you find that damage was done of the character described by the plaintiff’s witnesses, to the house or the stable, or both of them, you would from the testimony ascertain the amount of such damage and allow that to the plaintiff.] [5]
    [You may ascertain first if the plaintiff suffered damage from the wandering of this stock over his ground, and if he did, the amount of it, and if any amount, that will be added to the other matter.] [6]
    [If that meant that Mr. Coughenour gave consent to the taking of the timber, that relieved the defendants from any question of treble damages, or, if the answer of Mr. Coughenour led Mr. Wilmoth to believe that he could take it upon paying for it, that relieved him from treble damages, but in neither event did it relieve from single damage, because the defendants would still have to pay for the timber.] [7]
    Defendants presented these points:
    Under the pleadings and all the evidence in the casé the verdict must be for the defendants. Answer: Refused. [S]

      2. The damages claimed for in this action for injuries done to the house, stable, fences, gates, bars, coal house, woodhouse, and all other items which defendants had a right to use or take or change in any way under the lease offered in evidence by the plaintiff cannot be recovered in this form of action as it is expressly provided in the agreement or lease that the defendants are to pay the value of the property injured, destroyed or taken by the defendants. Answer: Refused. [9]
    3. Under the plaintiff’s own testimony that after some trees had been cut by the defendants, being part of the 217 for which damages are claimed in this action, he called on the defendants with reference to them and they promised to pay him for the trees that they had taken and would take, and no objection or protest having been made by the plaintiff at that time the defendants had a right to assume that they were permitted to cut these trees and pay their value and were not trespassers and neither damages nor the value of the trees thus cut can be recovered in this action. Answer: As stated this point is refused. [10]
    4. The plaintiff has not in his statement for cause of action, nor in his proof sufficiently defined and described the premises on which the alleged trespasses were committed, such as destroying wheat, and spoiling grass and herbage, so as to enable the jury to properly determine whether the same were included within the terms of the lease from the plaintiff to the defendants or not, and therefore there can be no recovery in this action for these claims. Answer: Refused. [11]
    Verdict and judgment for plaintiff for $364.75. Defendants appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-11) above instructions, quoting them.

      W. H. Ruppel, with him C. F. Uhl, Jr., for appellants.—
    The plaintiff’s proof was improper under the pleadings: Strohecker v. Grant, 16 S. & R. 237; Seip v. Drach, 14 Pa. 352; Brumbaugh v. Keith, 31 Pa. 327; Pearsoll v. Chapin, 44 Pa. 9; Penna. R. R. Co. v. Zug, 47 Pa. 480; Noble v. Laley, 50 Pa. 281; Burkholder v. Beetem, 65 Pa. 496; Pettit v. Sanger, 2 Pears. 84; Erie City Iron Works v. Barber, 118 Pa. 6; Kinney v. Harrison Mfg., etc., Co., 22 Pa. Superior Ct. 601; Lane v. Land Co., 211 Pa. 290; Krug v. Peale, 35 Pa. Superior Ct. 1; McLean v. Shoenhut Co., 225 Pa. 100.
    July 20, 1910:
    Appellants were no more liable for the trespasses of their employees than they would have been for the trespass of any stranger who might have committed depredations on the farm of the plaintiff: Wilson v. Donaghy, 7 Phila. 153; Offerman v. Starr, 2 Pa. 394; Yerger v. Warren, 31 Pa. 319.

      Valentine Hay, with him John R. Scott and A. L. G. Hay, for appellee.
    The form of action was proper: Duffield v. Rosenzweig, 144 Pa. 520; Miller v. Transit Co., 181 Pa. 622; Welker v. Metcalf, 209 Pa. 373; Erie City Iron Works v. Barber, 118 Pa. 6; Whitney v. Haskell, 216 Pa. 622; Burkholder v. Beetem, 65 Pa. 496; Martin v. Stille, 3 Whart. 337; Skivington v. Richards, 208 Pa. 385.
    Damages done by tenants to leased property are recoverable in an action of trespass (formerly trespass on the case): Agque v. R. R. Co., 14 Pa. C. C. Rep. 199.
   Opinion by

Morrison, J.,

This is an action of trespass and the plaintiff filed a declaration charging that the defendants did with force and arms break and enter the close of the plaintiff, describing it, containing 240 acres of land. The declaration contains five counts or specifications of damages alleged to have been caused by the defendants upon said land and each and all of said counts or specifications allege trespass quare clausum fregit and the declaration contains no hint of any other cause of action, nor is there any inconsistency apparent on the face thereof. The defendants pleaded “ not guilty ” and upon the issue thus raised the parties went to trial.

The first move of the plaintiff, after the jury was sworn, was to offer in evidence a contract between the parties, plaintiffs and defendants, dated October 9, 1901. This contract very clearly granted to the defendants the right to enter in and upon certain portions of the locus in quo (just what portions are not clearly defined) and to use and occupy the buildings thereon and portions of the land from the date of the agreement for a period of seventeen months. This agreement recognized the right of the defendants to take out partitions, doors, etc., from houses, stalls and mangers out of stable and to replace the same at the defendants’ costs. The contract also contained other provisions as to repairs, etc., and it clearly renders the defendants liable for injuries to the property in an action ex contractu. The admission in evidence of said contract was not objected to by defendants’ counsel and an offer was then called for, whereupon plaintiff’s counsel proposed to prove that the dwelling house, stable and other outbuildings were in good tenantable condition when the defendants took possession of the same; that the fences were good; the bars and gates and the inclosure around a certain garden on the leased premises were in good condition; that when they surrendered possession of the leased premises, the partitions in the dwelling house were torn away, and reciting certain other damages. Defendants’ counsel: “This evidence is objected to for the following reasons: 1. It is not admissible under the. pleadings. 2. This being an action of trespass none of the matters contained in the offer can be adjudicated in this proceeding.” By the court: “I think, having joined issue on it, we will overrule the objection and note an exception to the defendants.” The court then permitted the plaintiff to introduce a large mass of testimony in support of the offer.

The first, second, fourth, fifth, sixth, Seventh, eighth and ninth assignments of error all raise substantially the same question, viz., whether the plaintiff can recover in this form of action for injuries which arose out of a contract between the parties for a leasing of the premises, the locus in quo, or portions of it. Defendants’ counsel state their position as follows:

(a) "There having been an article of agreement between the parties with reference to the leasing of the premises, that for any injuries growing out of the relations between the parties under that article of agreement, the recovery must be had in an action ex contractu and not in an action sounding in tort.”

(b) "There can be no blending, either in the statement or the proof, of claims sounding in tort and claims arising under the contract.”

(c) “The plaintiff having filed a statement which was purely for alleged trespasses and making no reference whatever to an agreement between the parties or to any matters which could have in any way been adjusted in an action of assumpsit, the defendant could not have filed a demurrer which would have been sustained by the court.”

We will not take time nor occupy space in citing authorities to support the proposition that the remedy for breaches under the contract was in an action of assumpsit and not in trespass. The record discloses that the court admitted evidence under the plaintiff’s declaration which was clearly in trespass, both in support of the trespasses alleged in the declaration and in support of items of damages which were clearly embraced within the terms of the contract between the parties. The latter items could only have been recovered for in an action of assumpsit, and as the verdict does not disclose how much was allowed by the jury for either class of these claims, it is impossible to sustain the judgment.

That a cause of action sounding in tort and one based on a contract cannot be tried.in the same action is so well settled that it hardly seems necessary to cite authorities on the question. We will, however, refer to a few of fhe cases: Strohecker v. Grant et al., 16 S. & R. 237; Smith v. Meanor, 16 S. & R. 375; Penna. R. R. Co. v. Zug, 47 Pa. 480; Noble’s Admr. v. Laley, 50 Pa. 281; Kinney v. Harrison Mfg., etc., Co., 22 Pa. Superior Ct. 601.

The learned court below appears to have recognized the principle that actions ex contractu and actions sounding in tort ought not to be joined. But he was of the opinion that the defendants could not raise this question because of their failure to demur to the declaration. Plaintiff’s counsel have devoted a large portion of their printed argument to the citation of authorities and an attempt to sustain this position. Among these authorities are Welker v. Metcalf, 209 Pa. 373; Erie City Iron Works v. Barber, 118 Pa. 6; Martin v. Stille, 3 Whart, 337; Skivington v. Richards, 208 Pa. 385, and other authorities. But not one of these cases supports the contention that the defendants in the present case ought to have demurred.

• In each of said cases there was something appearing upon the face of the declaration which showed an improper joinder or inconsistency in the counts and therefore a demurrer was proper. But in the present case the declaration is in trespass pure and simple, and there is not a hint in it that the plaintiff intended to try any cause of action but trespass quare clausum fregit. It is, therefore, perfectly apparent that the defendants could not demur for by so doing they would have admitted all of the facts well pleaded in the declaration. Upon the trial of the present case the court ought to have excluded all evidence not tending to support at least one or some of the acts of trespass and damages alleged in the declaration.

In the charge to the jury as quoted in the fourth assignment, the court said: “When the statement was filed, an examination of it would have shown that it involved a variety of claims, some of which were founded on a tort; that is to say, on a wrong or an injury, and some of which were founded on a direct, distinct contract, so that these various claims were not in harmony with one another, in so far as the form of action adopted by the plaintiff was concerned; in other words, damages for what I have called a tort, or a wrong or an injury, must be recovered in an action of trespass, and the other damages which are sought to be recovered in an action of assumpsit, and these various claims were blended in this action. . . . The court , has held that by reason of there having been no demurrer filed, etc., we ruled that we would proceed with the case and try it to its end.” The court says these various claims were blended in this action. They were not blended by the plaintiff’s declaration, but by the evidence improperly admitted by the court in spite of the objection of the defendants’ counsel.

The seventh assignment relates to the cutting of 217 trees by the defendants. In regard to these trees there was a dispute between the parties, the plaintiff alleging that they were wrongfully taken and that he was entitled to recover in trespass the value thereof. The defendants alleged that the trees were taken with the consent of the plaintiff on an agreement to pay therefor. If the jury had found from the evidence in favor of the defendants’ contention, the question of the trees should have been withdrawn from their consideration because the plaintiff’s remedy would have been in assumpsit. But in the portion of the charge quoted in the seventh assignment, the court told the jury that in either event the plaintiff could recover the value of the trees. This was palpably wrong. We sustain the first, second, fourth, fifth, sixth, seventh, eighth and ninth assignments.

The third assignment was an offer by defendants to prove that the rails and posts and fencing material alleged by plaintiffs to have been used for firewood were so used by persons who worked for the defendants and that they were to furnish their own fuel and that the defendants were not in anywise connected with such improper use of plaintiff’s material. This offer was objected to and the court sustained the objection and granted an exception to the defendants. We think this assignment must be sustained. If A employs B to work for him and the latter without A’s consent, carries away and burns the rails of C, we do not understand how C can recover therefor against A: Little Schuylkill Nav., etc., Co. v. Richards, 57 Pa. 142; Crouse v. Miller, 19 Pa. Superior Ct. 384; Wilson v. Donaghy, 7 Phila. 153. The third assignment is sustained.

The tenth assignment asked for a binding instruction in regard to the 217 trees, that there could be no recovery therefor in trespass, but this assignment cannot be sustained because the question of whether the trees were taken under an agreement or tortiously was in dispute. The tenth assignment is not sustained.

The eleventh assignment is as follows: “The plaintiff has not in his statement for cause of action, nor in his proof sufficiently defined and described the premises on which the alleged trespasses were committed, such as destroying wheat, and spoiling grass and herbage, so as to enable the jury to properly determine whether the same were included within the terms of the lease from the plaintiff to the defendants or not, and therefore there can be no recovery in this action for.these claims.” Answer: “Refused.”

In view of the fact that the plaintiff’s declaration alleged the trespass to have been upon the 240 acre farm, portions of which were in the defendants’ possession under the contract of October 9, 1901, and that the said contract does not accurately and sufficiently describe .just what portions of the locus in quo the defendants were entitled to occupy under it, we think this assignment must be sustained.

If this action of trespass is to be tried again the plaintiff should be required to so amend his declaration as to leave no doubt as to what portion of the farm the defendants were not in possession of or entitled to possession under their contract.

The judgment is reversed with a venire facias de novo.


text:
    Bametzrieder, Appellant, v. Canevin.
    July 20, 1910:

      Mechanic’s lien — Notice to owner■ — Subcontractor—Acts of June 4, 1901, sec. 8, P. L. 431, and April 17,1905, P. L. 172.

    Under the Act of June 4, 1901, sec. 11, P. L. 431, as amended by the Act of April 17, 1905, P. L. 172, a mechanic’s lien filed by a subcontractor must set forth when and how service of notice of intention to file the lien was made upon the owner. If the lien does not set forth when and how service of notice was made, it is not self-sustaining, and will be stricken off on motion.
    Submitted May 2, 1910.
    Appeal, No. 49, April T., 1910, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 58, M. L. D., making absolute rule to strike off mechanic’s lien in case of Henry Bametzrieder v. Right Reverend Regis Canevin, Roman Catholic Bishop of the Diocese of Pittsburg, Trustee for St. Canice Roman Catholic Congregation of the Borough of Knoxville, Pennsylvania, Owner or reputed Owner, and A. R. Snee and T. R. Snee, partners doing business as Snee Brother, Contractors.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to strike off mechanic’s lien. Before Haymaker, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order making absolute the rule to strike off the lien.

      Pier Dannals, for appellant.

      Chas. D. Gillespie, A. V. D. Watterson and A. B. Reid, for appellee.
   Opinion by

Morrison, J.,

The mechanic’s lien in this case was filed May 20, 1908, and on July 25, 1908, a rule was granted on defendants’ petition to show cause why the lien should not be stricken from the record. The rule was duly served and argued, and on June 9, 1909, it was made absolute and an opinion of the court filed and an exception allowed to the plaintiff.

The reasons for striking off the lien, which was filed by the subcontractor, were as follows: (a) “Neither the claim nor the records disclose any notice of an intention to file a lien served upon petitioners as owners, nor were any such notices in fact served.” (b) “The said claim does not specify whether the contract in pursuance of which the work is alleged to have been done, and materials furnished, was oral or written.” (c) “Neither the claim nor the bill of particulars annexed thereto is in accordance with the law, in this, that they merely present a lump charge for an alleged contract price, and do not specify the dates on which the materials alleged to have been furnished and the labor alleged to have been performed, were furnished and performed, nor the prices of the items thereto annexed.”

The learned court below said: “The first objection is fatal to this lien. The record does not show that notice of an intention to file a lien was given to the owner before the lien was filed. The eighth section of the Act of June 4, 1901, P. L. 431, provides: “Any subcontractor, intending to file a claim, must give to the owner written notice to that effect, together with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last work was done or materials furnished. Such notice and statement must be served at least one month before the claim is filed, and within three months after the last of his work was. done or materials furnished, if he has six months within which to file his claims. . . .

“The concluding part of this section and almost the whole of section nine provide the means by which the owner may not only protect himself, but under certain circumstances, can pay the subcontractor. It is therefore imperative that this notice should precede the filing of the lien and that the lien should show upon its face that it was given. In Wolf v. Penna. R. R. Co., 29 Pa. Superior Ct. 439, Justice Porter, after quoting so much of sec. 8 as relates to the case we have in hand, said: ‘These provisions are mandatory, compliance with them is a condition precedent to the right to file a lien. ’ ”

The learned counsel for appellant says in his argument: “The court below held that the lien in question was fatally defective, because (1) it did not set forth when and how notice was given to the owners of an intention to file the lien; and (2) that it did not show the prices of the various items of work and materials. The latter question has since been passed upon by the Supreme Court in Willson v. Canevin, 226 Pa. 362, where it was held that the price of each item need not be set forth; so that the only question to be decided on this appeal is whether it is necessary, since the Act of April 17, 1905, P. L. 172, that a mechanic’s lien filed by' a subcontractor shall set forth when and how service of notice of intention to file the lien was made upon the owner.”

In our opinion the cases cited by the counsel and McVey v. Kaufmann, 223 Pa. 125, rule both of the questions suggested by the counsel. The opinion in the latter case was filed by Mr. Justice Brown on January 4, 1909, and it is there held, as stated in the syllabus: “A condition precedent to the right of a subcontractor to file a lien is that he has given to the owners of the building written notice of his intention to file it, together with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of. labor or materials furnished, and the date when the last work was done or materials were furnished.

“Although notice of an intention to file a lien must be given by a subcontractor to the owner of the building before a valid lien can be filed, the notice forms no part of it. All that need appear on the face of the lien is when and how notice was given.”

The opinion by Mr. Justice Mestrezat in Willson v. Canevin, supra, plainly recognizes that sec. 8 of the act of June 4,1901, above quoted, is still in force. The learned judge says: “As we have uniformly held, a mechanic’s lien is the creature of statutory law, and he who would avail himself of the provisions of the statute must show a substantial compliance therewith. It is only upon this condition that he has the right to enforce payment of his claim against the land for the labor or materials which are used in the improvement. This is especially true where a subcontractor attempts to enforce his claim against the property of the owner. There is no privity between him and the owner. The latter has made no contract with him to supply labor or material and has no knowledge of the contract or the terms between him and the contractor for supplying labor or materials. When, therefore, a subcontractor notifies the owner of his claim he must do so in substantial compliance with the statute.”

In Knelly v. Horwath, 208 Pa. 487, it is said: “A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. There is no intendment in its favor. It must be self-sustaining and must show on its face that it is such a lien as the statute authorized the claimant to file. This has been the uniform course of decisions under former acts.” The Supreme Court holds in the eases above cited that sec. 8 of the act of June 4, 1901, is still in force, and counsel for appellant concedes this in his printed argument. Without that section a subcontractor could not file a mechanic’s lien,, but his right to file such lien only exists after giving the owner a written notice to that effect. Such being the law, how can a subcontractor’s lien be self-sustaining without averring in the lien that he gave the required notice? If no such notice be averred, on the face of the lien, it is not self-sustaining and, of course, will be stricken off on motion.

In the light of the three decisions especially referred to above, and the Act of June 4, 1901, P. L. 431, as amended by the Act of April 17, 1905, P. L. 172, we hold that the lien in the present case is fatally defective in not averring when and how notice was given of the claimant’s intention, a subcontractor, to file a lien. We, therefore, hold that the learned court below was right in striking off the lien for the first reason assigned, but we cannot sustain the court in holding that the third objection is equally as fatal as the first. The lien was filed for material and work under a complete contract and we think the averment in the lien, with the bill of items attached, brings the claim squarely within the rule on that subject found in Willson v. Canevin, 226 Pa. 362.

The assignment of error, that the court erred in making absolute the rule to strike off the mechanic’s lien is overruled, and the order is affirmed. And it is further ordered that the appellant pay the costs of this appeal.


author: Per Curiam,

text:
    Purvis v. Overlander, Appellant.

      Equity — Jurisdiction—Alley—Obstruction of alley — Appurtenant way.

    A bill in equity for an injunction to restrain the obstruction of an alloy may be maintained, where it appears that the plaintiff claimed title by mesne conveyances from the same person as the defendants or their predecessors in title, and that when the defendants or their predecessors bought their respective lots, the alley was an open, visible and permanent way across the end of the grantor’s land to the plaintiff’s land and in use by the plaintiff as a way.
    Submitted May 4, 1910.
    Appeal, No. 42, April T., 1910, by defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 1,094, on bill in equity in case of Samuel A. Purvis v. Samuel S. Overlander, Marian Meek and Minnie Dietrick.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      Bill in equity for an injunction.
    Shafer, J., filed the following opinion:
    The bill is for an injunction to restrain defendants from obstructing a right of way.
    FINDINGS OF FACT.
    1. In the year 1873, John F. Fletcher was the owner of certain lots of ground in the city of Allegheny, situate at the corner of Allegheny avenue and Locust street, fronting some sixty-two or sixty-three feet on Allegheny avenue and running back along Locust street seventy-two feet, having a frame house erected on the part of the lot farthest from Locust street, the remainder of the lots being vacant.
    2. In that year Fletcher built three brick houses, fronting on Allegheny avenue, between the frame house and Locust street, and at the same time laid out an alley three feet wide, from Locust street, along the rear of the lots occupied by the three brick houses, to the rear of the lot occupied by the frame.house, and paved the alley with brick, and built a fence separating it from the lots on which the three houses were built, with gates into the alley from each of them, and with a gate at the end of the alley into the lot of the frame house, and the alley was thereafter used by the occupiers of all these lots, for access in the rear of the houses, while the same belonged to Fletcher.
    3. In 1880 Fletcher sold the lot with the frame house, to one William B. Kerr, by deed which made no mention of the alley, and this lot, by sundry conveyances, became the property of the plaintiff.
    4. The lots upon which the brick houses were erected, continued in the ownership of Fletcher, and were occupied by his tenants until 1888, when he sold one of them to a grantee who afterwards sold same to Minnie Die-trick, one of the' defendants, and in the same year sold another of these lots to the plaintiff herein, who afterward sold the same to Marian Meek, one of the defendants, and in 1899, sold the third lot to Samuel S. Over-lander, another of the defendants. All of these deeds last mentioned, described the lot sold as being sixty-nine feet in depth to a three-foot alley, being the alley in question.
    5. From 1873 until about 1884, the alley in question was the only means of access to the rear of the frame house, except a three-foot passage way over a porch, and after that date, by reason of an addition built to the front of the building, it became the only means of access to the rear of the lot.
    6. The plaintiff and his predecessors in title have used the alley continuously and openly for more than twenty-one years before May 19, 1908, when the defendants put a gate across the alley at Locust street, and put a lock • upon it, thus preventing the plaintiff from using the alley.
    CONCLUSIONS OP LAW.
    1. The plaintiff claims a right to use the alley in question, first, as appurtenant to his lot; and second, as acquired by prescription.
    2. As to the claim by prescription, we do not deem it necessary to discuss the evidence upon which it is founded in the present case, for the reason that if the plaintiff’s claim to the alley depended upon prescription alone, we should be of the opinion that his title in it was in such dispute that it ought to be first tried at law, and that, therefore, he would not be entitled to an injunction founded upon that title.
    3. As to plaintiff’s claim to the right of the alley as appurtenant to his lot, we are of the opinion that the conveyances above mentioned, and the facts found indicate beyond question that the alley is appurtenant to plaintiff’s lot. It was laid out by the common owner of all the lots, paved and fenced by him, and used by his tenants of the lot now belonging to the plaintiff, and con-22, (1910).] Opinion of Court below — Opinion of the Court, stituted the only practical means of access to the rear of that lot. He never parted with the title to the ground occupied by the alley, but conveyed his remaining land by description, running to the alley, giving the abutting owners the right to use it, and it has been so used continuously, until interrupted by the defendants as above stated.
    July 20, 1910:
    When the defendants, or their predecessors in title, bought the lots, the alley was an open, visible and permanent way across the end of the grantor’s land to the plaintiff’s land, and in use by the plaintiff as a way. We are of opinion that the case is ruled by the class of cases of which Liquid Carbonic Co. v. Wallace, 219 Pa. 457, is the latest to which our attention'has been directed, and the right to use the alley in common with Fletcher and his grantees, passed by implication, as an easement appurtenant to the land granted.
    As the facts upon which this conclusion rests are not in dispute, there is no reason why an injunction may not issue without a trial at law.
    Let a decree be entered for an injunction restraining the defendants from maintaining a gate upon the alley in question, or otherwise obstructing its use by the plaintiff, in common with him, and that the defendants pay the costs.

      Errcyr assigned was decree awarding injunction.

      Noah W. Shafer, for appellant.

      Craig Smith, for appellee.
   Per Curiam,

The learned counsel for the appellant points out some differences of fact between this case and the case of Liquid Carbonic Company v. Wallace, 219 Pa. 457, cited in the opinion of the learned judge of the common pleas, but we do not understand the learned judge to cite that case' as controlling this one because of the exact similarity of the facts of the two cases, but as authority for the principle which is there clearly enunciated and had been declared in many previous cases. When the facts necessary to bring a case within that principle are not in dispute, the jurisdiction of a court of equity is . clear. This is such a case, as is well shown in the opinion of the learned judge, which embraces his findings of fact and conclusions of law. We deem it unnecessary to add anything further to the discussion.

The decree is affirmed at the costs of the appellants.


author: Orlady, J.,

text:
    Morford v. Sharpsville Borough, Appellant.

      Negligence — Borough—Defective road — Guard rail.

    In an action against a borough to recover damages for injuries to a child two years old by falling with a horse and buggy over an embankment of a road at a point where there was no guard rail, a verdict and judgment for the plaintiff will be sustained where the evidence tends to show that the locality of the accident was a dangerous one, and that the plaintiff’s mother who was driving, was, at the time of the accident, making a reasonable, natural and ordinary use of the highway.
    Argued May 9, 1910.
    Appeal, No. 65, April T., 1910, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1902, No. 138, on verdict for plaintiff in case of Goldie Morford, by her father and next friend, H. 0. Morford, v. Sharpsville Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a child two years old. Before Galbreath, P. J., specially presiding.
    The facts appear by the opinion of the Superior Court, and by the former report of the case in 28 Pa. Superior Ct; 544. ■ ■ ■

      At the trial defendant presented the following point:
    2. That if the jury find from the evidence that Mrs. Morford who had the infant plaintiff in charge, was attempting to tie her horse to a telephone pole which stood on the west side of the highway, and within thirty feet of a steep embankment, and while making such an attempt the horse commenced backing away from the said telephone pole, and backed the buggy in which the infant plaintiff was sitting over the said steep embankment, and Goldie Morford was thereby injured, and that the proximate cause of the injury to her, was the attempt of Mrs. Morford to make such use of the highway, then the plaintiff cannot recover. Answer: That is refused, gentlemen. We have already instructed you in the general charge as to what we believe would be the rule if she was attempting to hitch her horse on the west side of the street. [1]
    The court charged in part as follows:
    [If, on the other hand, you find that she was seeking to hitch her horse on the west side of the street to the pole at that side, and that the horse began to back away and backed over the bank, we say to you, that under those circumstances, there might be a recovery. It will be for you to say. If her seeking to hitch her horse on the eastern side of the street led to the trouble, then, gentlemen, the proximate, immediate operating cause of the trouble would not be the absence of a barrier, but that unforeseen and extraordinary use of the highway. If, on the other hand, she was seeking to hitch her horse at a place that would be reasonable, and such as might reasonably have been expected under the circumstances, then that would be a use of the highway that reasonably should have been foreseen and guarded against, if reasonably it was necessary to guard against injury at that point.] [2] [Now, if you find in favor of the defendant, you will simply say you find a verdict for the defendant; but if you find this was a dangerous place, or a place of that character that it reasonably should have been protected, and that the use that was being made of the highway at this time by the plaintiff was a reasonable, ordinary use of the highway, and a proper use of it, and that the accident occurred by reason of the absence of barriers on the east side of this slope, or of the highway at the point of the slope, then, gentlemen, it would be your duty in that event to find a verdict for the plaintiff.] [3]
    July 20, 1910:
    Verdict and judgment for plaintiff for $1,800. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      S. H. Miller, with him J. P. Whitla, for appellant.

      Fred A. Service and Q. A. Gordon, for appellee.
   Opinion by

Orlady, J.,

When this case was first before us (28 Pa. Superior Ct. 544), it was carefully examined and in an opinion filed by our Brother Morbison, the errors complained of in the earlier trial were fully considered. The judgment was reversed and careful directions were given as to the proper manner in which it should be again tried. The opinion of the court in that case was carefully followed by the learned trial judge on the later trial, and the jury was explicitly instructed “that if the injury resulted from an attempt on the part of Mrs. Morford to hitch her horse to the pole which stood down over the embankment on the east side of the street, there could be no recovery. It was left to the jury, however, to find as a matter of fact whether the injury resulted from an effort to drive the horse to the pole which stood down over the bank to the east, as contended for by the defendant, or to hitch it to the pole which stood on the west side of and on a level with the street, as claimed by the plaintiff, and if the latter, then whether this was such an extraordinary use of the highway as could not have been foreseen.” And further, “if it was on the east side of the street, we think there could be no recovery but if it were on the west side, and you think it was a thing that might reasonably and naturally be attempted, then we say that that was such a use of the highway as it would be the duty of the municipal authorities to foresee and guard against.”

The verdict necessarily means that the jury found that the use made of the highway by Mrs. Morford was a proper one, and such as the defendant borough should have foreseen by placing a guard at this dangerous embankment, the lack of which was the operating cause of the injury which the plaintiff sustained while making a reasonable, natural and ordinary use of the highway. The question was purely one of fact and was carefully submitted to the jury.

The fourth assignment is without merit. If the plaintiff was entitled to recover at all, it was proper for the jury to consider the character, extent and permanency of her injury, and that tribunal, after an inspection of her injuries as they were at the time of the trial, were as capable as men of observation and experience of determining whether the injuries complained of were substantial and permanent, or merely nominal and temporary.

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


text:
    McGaughey v. McGaughey, Appellant.

      Practice, C. P. — Case tried by the court without a jury — Findings of fact.

    1. The findings of fact by the court in a case tried by the court without a jury, when based upon evidence, will, in an appellate court, have the force of the verdict of a jury, and wall not be reversed in the absence of manifest error.

      Payment — Payment into court — Assignments of debt — Judgment.
    2. While an obligor cannot make a legal payment after notice of an assignment of a debt to a use plaintiff, this does not prevent his relieving himself from the debt, interest and costs, by turning the fund over to the court for disposition, so as to ascertain who is the substantial plaintiff.
    July 20, 1910:
    Argued May 9, 1910.
    Appeal, No. 193, April T., 1910, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1904, No. 217, on case tried by the court without a jury in suit of W. R. McGaughey, Administrator of Franklin A. McGaughey, for use v. William R. Mc-Gaughey.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Case tried by the court without a jury under the Act of April 22, 1874, P. L. 109. Before Prather, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were various findings of fact and conclusions of law and the judgment of the court.

      H. N. Snyder, with him W. L. Peart, for appellant.

      B. L. Ralston, with him Calvin Rayburn, for appellee.
   Opinion by

Orlady, J.,

This case had its inception in the entry of a judgment against William R. McGaughey, in the court of common pleas of Armstrong county on February 13, 1878, in favor of Franklin A. McGaughey, for use. Soon thereafter the defendant obtained a rule upon the plaintiff to show cause why he should not be let into a defense, which was made absolute in part by the court allowing the defendant to defend as to $150 of the judgment. No further action was taken until December, 1904, when a scire facias was issued and returned nihil. In 1905 an alias scire facias was issued, and a judgment was entered by default for want of an appearance in the sum of $1,140. In March, 1906, the defendant petitioned the court to stay a writ of fi. fa. which had been issued therein, and asked for a Rule to strike off the judgment, which rule subsequently was made absolute. On June 24, 1909, the attorneys for the plaintiff and defendant by writing filed, agreed to dispense with a trial by jury and submit the case to the court under the provisions of the Act of assembly of April 22, 1874, P. L. 109. On March 10, 1910, after a full hearing on the testimony, and on exceptions filed to the conclusions of fact and law, the court entered a final judgment for $1,262, and reinstated the defendant's petition to open the judgment so as to let him into a defense as to $150 with interest' thereon, which amounted to $473.25, and also entered a judgment in favor of the plaintiff and against the defendant for $788.75.

The defendant filed thirty-one exceptions to the findings of fact and conclusions of law by the court below, and supports his appeal to this court by twenty-seven assignments of error. The ground has been fully covered and every disputed question of law and fact has been carefully disposed of. The findings of fact by the court in a case tried without a jury, when based upon sufficient evidence, will have the force in an appellate court, of a verdict of a jury and will not be reversed in the absence of manifest error. After a careful investigation of the whole record we find there is ample evidence to sustain the finding of the court, and any other conclusion would have been erroneous. The defendant admits that he never paid the judgment, and his only defense to its revival is that there is an outstanding interest in a use plaintiff, against whom he asserts no defense.

The disposition of a fund, when once in court, can be made on an application by a claimant to that fund, in order to establish his title to the whole or any part of it before he receives it, but this need not concern the present defendant who admits that he owes the debt. He can relieve himself of all liability by paying the fund into court. It is true that an obligor cannot make a legal payment after notice of an assignment of the debt to a use plaintiff, but conceding this it does not prevent his relieving himself from the debt, interest and costs by turning the fund over to the court for disposition, so as to ascertain who is the substantial plaintiff.

The case was so fully and carefully tried by the court below, and the final order is so in accord with the law and fact applicable to the case, that no good purpose would be served by a further consideration of it. No one of the ' assignments of error is sustained and the judgment is affirmed.


text:
    Belber Trunk & Bag Company, Appellant, v. Silberblatt.

      Practice, C. P. — Trial—Evidence—Competency—Appeals.
    1. If evidence be offered without objection it may be assumed that it is made competent by agreement of counsel, or is deemed competent, and having been admitted and the attention of the court not having been called to any objection to its competency during the progress of the trial, it is too late to raise the question on appeal.

      Practice, C. P. — New trial — Refusal of new trial — Discretion of court.

    2. Nothing but a manifest abuse of discretion will justify the appellate court in disturbing the conclusion of the trial judge on a rule for a new trial. The power is exceptional in character, and is only to be exercised in cases where it is manifest that injustice has been done.
    Argued May 9, 1910.
    Appeal, No. 188, April T., 1910, by plaintiff, from judgment of C. P. Armstrong Co., March T., 1909, No. 179, on verdict for defendant in case of Belber Trunk & Bag Company v. M. Silberblatt.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      July 20, 1910:

      Errors assigned were (1) refusal for new trial; (2) refusal of judgment for plaintiff non obstante veredicto; (3) refusal of binding instructions for plaintiff, and (4, 5) portions of charge of the court.

      Harry C. Golden, for appellant.

      R. L. Ralston, for appellee.
   Opinion by

Henderson, J.,

The assignment of error pressed by the appellant is the fourth in which exception is taken to that part of the charge of the court which referred to the evidence introduced by the defendant to show what Belber, the president and sales agent of the company, testified to at the suit before the justice of the peace with reference to the return of the defective trunk and suit cases. The witness was on the stand in behalf of the plaintiff and in the course of his examination stated, as the defendant testified, that the company had received the goods which the defendant returned. The evidence of the defendant on this point was not objected to; no motion to strike it out was made and there was no request to the court that it be disregarded. It was not error, therefore, for the court to take it into consideration with the other testimony in the case. If evidence be offered without objection it may be assumed that it is made competent by agreement of counsel or is deemed competent and having been admitted and the attention of the court not having been called to any objection to its competency during the progress of the trial it is too late to raise the question on an appeal to this court. It would be manifest injustice to convict the trial court of error without an opportunity to pass on the admissibility of the testimony at the trial. If the evidence were incompetent and was admitted without objection it is not error on the part of the court to treat it as legal evidence: McCullough v. Wallace, 8 S. & R. 181; Scott v. Sheakly, 3 Watts, 50; Sloan v. B. & O. R. R. Co., 131 Pa. 568. It is unnecessary,, therefore, to determine whether the statement of the president of the company in his testimony at the trial before the justice was admissible or not. We may say, however, that the case of Reineman v. Blair, 96 Pa. 155, goes very far toward sustaining the admissibility of the evidence.

The other assignments do not need special consideration. The first is to the refusal of the court to grant a new trial. It is clearly established that nothing but a manifest abuse of discretion will justify the appellate court in disturbing the conclusion of the trial judge on a rule for a new trial. The power is exceptional in character and is only to be exercised in cases where it is manifest that injustice has been done: Moyer v. Phillips, 40 Pa. Superior Ct. 1; Schenkel v. Traction Co., 194 Pa. 182; Neff v. R. R. Co., 202 Pa. 371. The second and third assignments call for binding instructions for the plaintiff. After the evidence was given- as to the return of the goods to the plaintiff there could not properly have been either binding instructions on the sixth point or judgment for the plaintiff non obstante. If the goods returned were not of the kind contracted for and were returned to the vendor because they were defective the plaintiff was not entitled to recover their price and the instructions of the court to the jury were clear and in harmony with the law. We do not find any valid reason for sustaining any of the exceptions.

The judgment is affirmed.