text:
    Commonwealth, ex rel. Taylor, Appellant, v. Clinton.

      Game law — Killing deer — Justice of the peace — Information—Record— Acis of June 4, 1897, P. L. 123, and April 22, 1905, P. L. 248.
    1. A conviction before a justice of the peace of having unlawfully killed deer will not be reversed because the information did not charge that the deer was killed in Pennsylvania, where it appears that the information was headed “The Commonwealth of Penna., County of Chester, ss.,” and charged the defendant with having in his possession in the county of Chester, divers parts of a deer after the same had been unlawfully killed, and it also appears that the justice found as a fact that the deer had been unlawfully killed in the county of - Chester at a date named.

      Pleading — Autrefois acquit — Justice of the peace — Record.
    2. Where a defendant relies on a former acquittal, the plea must set out the former record and show the identity of the offense and 'persons by proper averments.
    3. A plea of former acquittal entered before a justice of the peace must fail if it is not sustained by the production of the record of the judgment of the justice who is alleged to have previously acquitted the defendant.
    Argued Nov. 17, 1908.
    Appeal, No. 63, Oct. T., 1907, by plaintiff, from order of C. P. Chester Co., reversing judgment of justice of peace in case of Commonwealth ex rel. Taylor Bierly v. William Clinton et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Certiorari to judgment of justice of the peace.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in not affirming the judgment of the justice of the peace.

      Thomas Lack, with him Alfred P. Reid, for appellant.
    The plea of autrefois acquit is not a bar to a penal action for a penalty : State ex rel. Beedle v. Schoonover, 135 Ind. 526 (35 N. E. Repr. 119).
    The complaint of record in this case, and the record of the justice of the peace, set forth all facts necessary to show the jurisdiction of said justice: Com. v. Burkhart, 23 Pa. 521; Com. v. Beilstein, 29 Pa. Superior Ct. 373.
    It is further submitted, that the justice of the peace’s record in this case sets forth a definite and sufficiently specified offense, independently of the complaint, and is, therefore, sufficient, even though the same offense is indefinitely charged in the information on which process issued: Com. v. Burkhart, 23 Pa. 521.

      Walter S. Talbot, of Baldwin & Talbot, for appellees.
    The complaint is defective, in that it fails to set forth that the deer, portions of which are alleged to have been found in the possession of the defendants, was killed in the commonwealth of Pennsylvania.
    February 26, 1909:
    In the case of Com. v. Gelbert, 170 Pa. 426; Com. v. Davison, 11 Pa. Superior Ct. 130, the pleas, “autrefois acquit,” “former jeopardy” and “The justice has no jurisdiction in this case,” entered before Justice Paxson, were, we submit, if established, as they were, a complete bar to the action: Com. v. Betts, 76 Pa. 465; Com. v. Davison, 11 Pa. Superior Ct. 130; Com. v. Ruth, 34 Pa. C. C. Rep. 650.
   Opinion by

Morrison, J.,

This case was commenced before a justice of the peace and judgment being entered against each of the defendants, they removed the case into the common pleas on certiorari, and the judgment of that court reversed the judgment of the justice, without filing an opinion, and we are left in the dark as to the court’s reasons for so doing. The action was brought under the provisions of the Act of June 4,1897, P. L. 123, and of the Act supplemental thereto of April 22, 1905, P. L. 248. By the provisions of both of said acts, the having in possession the body or skin, or any part thereof, of a game quadruped at any time except during the open season for such game in this state, and fifteen days thereafter, shall, in every instance, be prima facie evidence that the same is held or possessed in violation of law. The wording of the two acts is slightly different upon this subject, but they are substantially the same. It was alleged by the defendants in the court below: 1. “That the complaint of record is insufficient, in that it does not show that the offense was committed in Pennsylvania. 2. That the complaint of record, failed to show any offense punishable under the laws of said commonwealth. 3. That the record of the justice does not show any evidence to sustain the judgment. 4. That the justice was without jurisdiction to hear the case, or to impose a fine, because the defendants had previously had a hearing before another justice on the same charge and the case against them had been dismissed.”

As to the first exception, we do not consider it valid. The information made before S. M. Paxson, justice of the peace, on December 13,1905, charges that the defendants did on November 9, 1905, at the county of Chester aforesaid, have in their possession, after the same had been unlawfully killed, divers parts of a certain game quadruped, commonly called a deer, before the commencement of the open season, to wit: November 15, 1905, for the lawful killing and the having in possession of the same, contrary to the form of the act of assembly, entitled, etc., and then giving the title and date of both acts of assembly hereinabove referred to. The only serious criticism made in regard to this information is that it does not charge that the deer was killed in the commonwealth- of Pennsylvania. But the information is headed the commonwealth of Penna., county of Chester, ss., and it charges the defendants with having in their possession, at the county of Chester, divers parts of a deer after the same had been unlawfully killed. This we think was equivalent to saying that it was killed in Pennsylvania. If not killed in Pennsylvania, the act of such killing would not be unlawful under our acts of assembly. The justice took ample testimony and returned the same with his record showing that the deer was killed within the county of Chester; and in addition to that he found not only that the defendants were guilty of the offenses charged against them in the complaint, but he distinctly found the facts that the deer had been unlawfully killed in the county of Chester and the date of such killing. We, therefore, hold that the information and record made by Justice Paxson are sufficient to sustain his judgment. There is no merit whatever in the second and third exceptions.

There only remains for consideration the fourth exception. This is to the effect that the defendants were arrested and had a hearing before another justice on the same charge, previous to the hearing before Justice Paxson, and that they were acquitted by him. In point of fact the defendants pleaded before Justice Paxson, “autrefois acquit.” The point is made by appellant’s counsel that this is an action for the recovery of a penalty, and not a criminal proceeding. Therefore, the plea is not good because it is only a proper plea in a criminal case. Appellee’s counsel concedes, in his printed argument, that this plea does not apply to actions strictly for the recovery of penalties. But he contends that the present suit is, in its nature, for the punishment of a criminal offense and that his plea is good. The defendants were arrested on a warrant and brought before Justice Paxson, and they were in all respects treated as criminals, and the judgment against them was that in default of the payment of $100 by each defendant, he should be confined in the jail of Chester county for the period of 100 days. If the record sent to the court below by Justice Paxson properly shows that the defendants were arrested, tried and acquitted before another justice for the identical offense with which they were charged before Justice Paxson, we would hesitate before holding that the defendants could be again tried, convicted, fined and imprisoned for the identical offense, heard and disposed of by Justice Toland. But we do not find that a former acquittal before Justice Toland was properly proved in the hearing before Justice Paxson, and the latter justice expressly found that the defendants ’ plea of a former acquittal was not sustained. There is printed in the appellant’s paper-book an information before Justice Toland, a transcript from his docket and considerable oral testimony that the defendants were arrested and acquitted by Justice Toland. It appears that the latter justice was a witness before Justice Paxson, and that he testified he had a transcript of the case before himself in his hand. All of the oral testimony as to the former trial and acquittal of the defendants was objected to by the appellant’s counsel, and we think it was all improper except in so far as it tended to prove the identity of the defendants and of the cause of action before the two justices. The fatal defect in the defendants’ proofs of a former acquittal was the failure to produce the record of the judgment of Justice Toland : Where the defendants rely on a former acquittal, the plea must set out the former record and show the identity of the offense and persons by proper averments: Hawkins, PI. Cr., b. 2, c. 36; 1 Chitty, Crim. Law, 462; Allen v. International Text Book Co., 201 Pa. 579. We regard the law as settled that the former acquittal could only be sustained by producing the record of the judgment of Justice Toland and placing the same in evidence; then following this with sufficient evidence of the identity of the defendants and of the cause of action. The record does not show that the docket and judgment of Justice Tolano were produced before Justice Paxson and put in evidence. This fact renders all of the oral testimony as to the identity of the defendants and the cause of action irrelevant and immaterial, and, therefore, the finding of Justice Paxson that the plea of a former acquittal was not sustained cannot be said to be erroneous.

No question has been raised in this case in regard to the right of appeal. If authority is wanted to sustain the proposition that the judgment of the court below is not final, in the present case, under the provision of sec. 22 of the Act of March 20, 1810, 5 Sm. L. 161, we cite Com. v. Davison, 11 Pa. Superior Ct. 130; Com. v. Betts, 76 Pa. 465; New Castle v. Genkinger, 37 Pa. Superior Ct. 21.

The assignments of error are all sustained and the judgment of the court of common pleas is therefore reversed, and that of the justice is affirmed, and the record is ordered to be remitted to the court below for the purpose of execution.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Schmucker v. Lawler, Appellant.

      Sale — Sale of goods in bulk — Execution—Attachment execution — Act of March 28, 1905, P. L. 62.
    Although a sale of goods in bulk may be in violation of the provisions of the Act of March 28, 1905, P. L. 62, and as such void as against the vendor’s creditors, yet as between the parties it may be good and pass title. The remedy of the vendor’s creditors is by seizure of the goods under an ordinary fi. fa. They have no remedy against the vendee by an attachment execution.
    Argued Oct. 8, 1908.
    Appeal, No. 107, Oct. T., 1908, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 5,087, entering judgment against garnishee on answers in case of Nicholas J. Schmucker and Winfield S. Keck, copartners, trading as Schmucker, Keck & Co., v. Amelia E. Lawler et al.
    February 26, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule for judgment against garnishee in attachment execution on answers.
    The opinion of the Superior Court states the case.

      Error assigned was in entering judgment against the garnishee in attachment execution.

      William J. Shœffer, with him William J. Lawson, for appellant.
    An attachment execution is not the proper remedy: Wilson v. Edwards, 32 Pa. Superior Ct. 295; Feingold v. Steinberg, 33 Pa. Superior Ct. 39; Fisher v. Elliott, 11 Phila. 344; Strouse v. Becker, 44 Pa. 206.

      T. W. McNeil, for appellees.
   Opinion by

Henderson, J.,

The effect of the Act of March 28,1905, P. L. 62, was to render fraudulent and voidable a sale in bulk of merchandise or fixtures or both as against any creditor of the seller who institutes an appropriate proceeding to invalidate such sale. As to such creditor merchandise sold is liable to execution as if no sale had taken place. The act does not prescribe a particular mode of procedure against such property, and the remedy of the creditor is that which existed in favor of judgment creditors before the act was passed. The process known as an attachment execution was authorized by the Act of June 16, 1836, P. L. 755. It is supplementary to the writ of fieri facias and intended to reach certain classes of personal property not subject to that writ. The thirty-fifth section of the statute provides that a-debt due the defendant or a deposit of money made by him or of goods or chattels pawned, pledged or demised may be attached and levied in satisfaction of a judgment. The property subject under this section is that of the defendant in the judgment which is due to him from another or which he has deposited, if money, or goods or chattels which he has pawned or pledged or in any way delivered to another for a limited period, property in the thing all the time remaining in the depositor or pledgor. The writ is not available for a seizure and sale of goods in the possession of another than the defendant not held for, and as the property of, the latter. Such was, in effect, the construction of the act in Good v. Obertauffer in the district court of Philadelphia, 1 Tr. & H., note to sec. 1182, and this view was approved in Lennig’s Appeal 9 W. N. C. 503. In the case before us the appellant did not hold the property under any pledge or demise from the former owner. He bought and paid for it, and as between him and the seller it was his absolutely, but under the act of 1905 his title was liable to be defeated by the seller’s creditors who were at liberty to disregard the sale and proceed against the property as if no sale had taken place. The property was subject to seizure in the hands of the purchaser by the seller’s creditor, and this could be done by writ of fi. fa. as in the case of any other goods subject to levy and sale: Wilson v. Edwards, 32 Pa. Superior Ct. 295. The purchaser did not become responsible for the debts of the seller. He might lose the goods he bought, but could not be considered in any sense a debtor of the execution defendant. We conclude, therefore, that the facts in this case do not support an attachment execution and the judgment must be reversed.

Judgment is reversed.


author: Orlady, J.,

text:
    Folsom Real Estate Company, Appellant, v. Esmark.

      Affidavit of defense — Practice, C. P. — Corporations—Real estate company — Agents.
    -In an action by a real estate company based upon an agreement in writing, an affidavit of defense is insufficient which sets up certain representations and unperformed promises made by unnamed agents of the plaintiff, without setting forth their authority to make the same.
    Argued Dec. 18, 1908.
    Appeal, No. 217, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1908; No. 340, discharging rule for judgment for want of a sufficient affidavit of defense in case of Folsom Real Estate Company v. Joseph M. Esmark and Albert Esmark.
    March 26, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule for judgment for-want of a sufficient affidavit of defense.
    The facts appear by the opin: of the Superior Court.

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

      J. Water Rosenberg, with him William M. Lewis, for appellant,
    cited: Keffer v. Robinson, 2 W. N. C. 689; Express Pub. Co. v. Aldine Press, 126 Pa. 347; Hallowell v. Lierz, 171 Pa. 577; Twining v. Roberts, 16 Pa. Superior Ct. 4; Martin v. Bernes, 67 Pa. 459; Land Co. v. Mendinhall, 4 Pa. Superior Ct. 398.

      David Phillips, with him John Monaghan, for appellee.
   Opinion by

Orlady, J.,

This action is in assumpsit, brought by the plaintiff company, a corporation, to recover the sum of $920, with interest, due on a certain real estate transaction, and is founded upon an agreement in writing, signed by the parties, and which contains a stipulation, “Third, no modification of this agreement nor waiver of any terni or condition hereof, shall be of any force or effect unless the same is in writing, executed by both of the parties hereto, and no waiver or breach of any such term or condition, shall be evidence of, or construed as a waiver, or any other or subsequent breach of the same, or any other term or condition.”

The affidavit of defense is evasive and unsatisfactory, but accepting it as being the best statement of the defense that the defendant could truthfully make, it is insufficient to prevent judgment.

The contract is signed by .the plaintiff company, by R. M. Livingstone, its treasurer, and by the defendants with their personal signatures. The allegation that certain representations were made by unnamed agents, acting as representatives of the plaintiff company, who alleged and promised that certain things with regard to the unimproved real estate should be done, is not sufficient. That such agent or representative had any authority to bind the corporation, or just what their relation to the corporation was in fact, is not definitely stated. It is not alleged that the statements were made by the treasurer who executed the contract for the company, and, further, the oral promises set up in the affidavit are in direct contradiction to the terms of the written contract. The case is not controlled by Land Company v. Mendinhall, 4 Pa. Superior Ct. 398, as urged by the appellant, for in that case the inducing representations were made by the company itself. The representations on which the defendants rely might well have been made by a person who had no authority to bind the company, as far as their truthfulness is concerned. Lacking the particularity'and specific averments above suggested, it is clearly not sufficient to prevent judgment.

The judgment of the court below is reversed, the record remitted to the court below, that judgment may be entered against the defendants for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be so entered.


author: Beavee, J., Morrison, J.,

text:
    Kline’s Estate.

      Will — Legacies—Per stirpes or per capita.

    1. Where testator directs that the residue of his estate “shall be equally divided share and share alike, among the children of my deceased brother, ” naming him “ and the children of my deceased sisters,” naming them, distribution will be made per stirpes among the children of the brother and the sisters.
    2. In such a case the court will in construing the will, resort to the usual statutory distribution for an analogy to help it.

      Argued Oct. 30, 1908.
    Appeal, No. 195, Oct. T., 1908, by A. B. Mettler, from decree of O. C. Northumberland Co., May T., 1906, No. 7, overruling exceptions to auditor’s report in Estate of Francis A. Kline, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of C. B. Witmer, Esq., auditor.
    The opinion of the Superior Court states the facts.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Grant Herring, with him S. P. Wolverton and S. P. Wolverton, Jr., for appellant.
    The words, “equally to be divided,” when used in a will, mean a devise per capita and not per stirpes, whether the devisees be children and grandchildren, brothers and sisters, nephews and nieces, or strangers in blood to the testator: Bender’s App., 3 Grant, 210; Kean v. Hoffecker, 2 Harring. (Del.) 103; Brown v. Ramsey, 7 Gill (Md.), 347; Peale’s Est., 33 Legal Int. 374; Sutton’s Est., 47 Pitts. L. J. 241; Stout’s Est., 16 Montg. 193.
    Where the intention of the testator is in doubt, the statute of distribution is a safe guide.
    Under the act it has frequently been decided that nephews and nieces take per capita and not per stirpes: DeHaven’s Est., 1 Clark, 336; Miller’s Appeal, 40 Pa. 387; Krout’s Appeal, 60 Pa. 380; Clement’s Est., 160 Pa. 391.
    It has been decided that the purpose of this act was to provide for per capita distribution when the distributees stand in the same degree of consanguinity to the intestate: Cremer’s Est., 156 Pa. 40; McConnell’s Est., 5 Pa. Superior Ct. 120; Smith’s Est., 10 Pa. Dist. Rep. 92.
    Where a gift is to the children of several persons, whether it be to children of A and B, or to the children of A and the children of B, they take per capita, not per stirpes: 2 Jarman on Wills, 756; Lugar v. Harman, 1 Cox’s Cases in Eq. 250; Lincoln v. Pelham, 10 Ves. 166.

      March 8, 1909:
    The statute of distributions governs in all cases where there is nd will; and where there is one, and the testator’s intention is in doubt, the statute is a safe guide: Ashburner’s Est., 159 Pa. 545.

      George B. Reimensnyder, with him W. E. Bloom, for appellee.
    We think that the auditor and the court below have sufficiently vindicated the principle under which they arrived at the opinion that the distribution should be made per stirpes. The language used by the testator in the will upon which the ease at bar has arisen conforms more nearly to the language in the wills construed by this court in the cases of Fissel’s Appeal,' 27 Pa. 55; Minter’s Appeal, 40 Pa. 111, and Hiestand v. Meyer, 150 Pa. 501, than that of the language of any of the wills construed by the courts in the cases cited by the appellant, and this in itself is sufficient to vindicate the opinion of the court.
    The testator in the case at bar having designated the classes, and nothing appearing in any other portion of the will to make his meaning doubtful, the classification must stand as made by him: Hiestand v. Meyer, 150 Pa. 501; Osburn’s App., 104 Pa. 637; Miller’s Est., 26 Pa. Superior Ct. 453; Hicks’ Est., 134 Pa. 507.
   Opinion by

Beavee, J.,

The record here presents but a single question.

The decedent provides in his will as to his residuary estate:

“When my real estate is sold, out of the proceeds of such sale, I make the following bequests. To John P. Lawrence, Harmon Lawrence, Mary Lawrence and Rachel Lawrence, I give each the sum of one hundred dollars; and all the rest and residue of my estate, whether proceeds of real or personal sales, or of whatever character, shall be equally divided, share and share alike, among the children of my deceased brother, John F. Kline, and the children of my deceased sisters, Jane Mettler and Mary Bassett.”

Shall distribution be made per capita or per stirpes?

The auditor found, and the court below confirmed the finding, that the will divided the children of the brother and sisters of the deceased into classes and that the distribution should be made per stirpes among the children of the brother and two sisters. The appellant contends that the distribution should be made among the nephews and nieces of the testator per capita.

This contention, it is claimed, is sustained by Brundage’s Estate, 36 Pa. Superior Ct. 211. The.clause in the testator’s will interpreted in that case was: “Then the property to go to my brothers’ and sister’s children in equal proportions, share and share alike.” It was there held that this indicated an intention to distribute the remainder of the estate per capita and not per stirpes. The language used in that case is entirely different from that which is presented for our consideration in the case before us. As we view it, however, the testator’s intention here bears much greater similarity to the will which was interpreted in Sipe’s Estate, 30 Pa. Superior Ct. 145. This latter case and those which it followed are fully referred to and quoted in the opinion of Judge Auten of the court below, as contained in the report of the case. His opinion, confirming the distribution as made by the auditor, is so exhaustive and the authorities relied upon so fully set forth that it would be merely a repetition to refer to or quote from them.

We are of the opinion that the language of the testator’s will divided the children of his brother, John Kline, and of his sisters, Jane Mettler and Mary Bassett, into three classes which were to share alike in the distribution of his estate.

We are not unmindful of the suggestion made, and strenuously argued, by the counsel for the appellant, that, if classes are created by the will of the testator, there are but two instead of three, one, the children of his deceased brother John and the other, the children of his deceased sisters. We do not ignore, nor would we in any way minimize, the doubt which this language creates, and we are thus in the position of the Supreme Court, as outlined in Minter’s Appeal, 40 Pa. 111, where the language of the testator created a doubt as to the thought or intention of his will, Mr. Chief Justice Lowrie saying: “What then can we do but resort to the usual distribution of the law for an analogy to help us? When we find a man distributing his estate, in whole or in part, among his next of kin, and he leaves the proportions in which they are to take doubtful, it is quite natural for us to suppose that he had the statutory or customary form of distribution in his mind, and to interpret his will accordingly. This would classify the legatees as he seems to have done, and as the court below did, and allows the three classes to take as their parents would have done: thus they themselves take by a quasi representation and per stirpes.” Here, as there, the words “each of” as to his sisters’ children would have made his meaning more satisfactory, but, following the course adopted by the Supreme Court in Minter’s Appeal just quoted, we reach the same conclusion.

The decree of the court below is, therefore, affirmed and the appeal dismissed at the costs of the appellant.

Morrison, J.,

dissenting:

I cannot give my consent to the opinion of the majority of this court affirming the decree of the court below, and, therefore, respectfully dissent therefrom on the ground, that the language of the testator, “and all the rest and residue of my estate, whether proceeds of real or personal sales, of whatever character, shall be equally divided, share and share alike, among the children of my deceased brother, John F. Kline, and the children of my deceased sisters, Jane Mettler and Mary Bassett,” calls for a distribution among all of the children designated, per capita. The grammatical, as well as the ordinary or popular meaning, of the above-quoted language, in my opinion, means per capita and not per stirpes. The testator, by said language, made but one class of the children of his deceased brother and sisters.

I would reverse the decree and direct that the fund be distributed per capita.


author: Beaver, J.,

text:
    Hartman v. Reading Wood Pulley Company, Appellant.

      Appeals — Amount in controversy — Interest—Jurisdiction of Superior Court.

    1. Where in an action of trespass judgment was entered on a verdict in favor of the plaintiff for the sum of $1,500 with interest from a date stated, an appeal lies to the Superior and not to the Supreme Court.

      Negligence — Master and servant — Dangerous machine.

      2. When a servant in obedience to the master incurs the risk of machinery, which though dangerous is not so much so as to threaten immediate injury, or it is reasonably probable may be used safely by extraordinary cautions, the master is liable for a resulting accident.
    3. When a servant remains in the service of his master, after he has knowledge of the dangerous condition of the place in which he is engaged, he is presumed to assume the risk of the danger, but this presumption is rebutted if the master promises to repair the defect and the danger is not so obvious or imminent but that negligence can fairly be imputed to the servant for exposing himself to it.
    4. In an action by an employee against his employer to recover damages for personal injuries sustained while working at a dangerous machine, the plaintiff testified that on several occasions he had complained of the absence of a certain safety appliance, and that his employer had promised to provide it. Defendant denied that any such promise had been made, although admitting the complaints. The evidence was con'flicting as to whether such an appliance was necessary. The evidence was also conflicting as to whether the machine was out of adjustment. Held, that the case was for the jury, and that a judgment on a verdict for plaintiff should be sustained.
    Argued Nov. 11, 1908.
    Appeal, No. 152, Oct. T., 1908, by-defendant, from judgment of C. P. Berks Co., June T., 1906, No. 63, on verdict for plaintiff in case of John A. Hartman v. Reading Wood Pulley Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Endlich, J.
    The circumstances of the accident are stated in the opinion of the Superior Court.

      February 26, 1909:
    Verdict and judgment for plaintiff for $1,500, with interest from April 19, 1907.,

      Error assigned was in refusing binding instructions for defendant, and in discharging rule for judgment in favor of defendant non obstante veredicto upon the whole record.

      John B. Stevens, with him Garrett B. Stevens and Rick & Nicolls, for appellant.
    There was no evidence of negligence beyond the happening of the accident: Sandt v. North Wales Foundry Co., 214 Pa. 215.
    This case is ruled by Alexander v. Penna. Water Co., 201 Pa. 252, and Price v. Lehigh Valley R. R. Co., 202 Pa. 176.
    The plaintiff assumed the risk by continuing to work with full knowledge of the alleged defect in the machine: Diehl v. Iron Co., 140 Pa. 487; Green, etc., St. Pass. Ry. Co. v. Bresmer, 97 Pa. 103; Sykes v. Packer, 99 Pa. 465; Phila., etc., R. R. Co. v. Hughes, 119 Pa. 301; Maines v. Harbison-Walker Co., 213 Pa. 145; Reese v. Clark, 198 Pa. 312; Patterson v. R. R. Co., 76 Pa. 389; Webster v. Coal & Coke Co., 201 Pa. 278.
    The court below should have converted the rule for judgment n. o. v. into a rule for a new trial: Gring v. Burkholder, 2 Woodw. 82; Bond v. R. R. Co., 218 Pa. 34.

      Isaac Hiester, with him B. Y. Shearer, for appellee.
    This case is not within the jurisdiction of the Superior Court and the appellee is entitled to have it remitted to the Supreme Court.
    The case was for the jury: Sopherstein v. Bertels, 178 Pa. 401; Valentine v. Colburn Co., 10 Pa. Superior Ct. 453; Fitzpatrick v. Riley, 163 Pa. 65; Patterson v. R. R. Co., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 194; Reese v. Clark, 198 Pa. 312; Webster v. Coal & Coke Co., 201 Pa. 278; Williams v. Clark, 204 Pa. 416; Held v. American Window Glass Co., 207 Pa. 534; Maines v. Harbison-Walker Co., 213 Pa. 145.
   Opinion by

Beaver, J.,

On April 17, 1907, a verdict was found by the jury in favor of the plaintiff for $1,500. A few days thereafter a motion for judgment n. o. v. was filed, which was discharged June 20,1908, and, upon the thirtieth of the same month, the verdict fee was paid and “judgment entered on verdict in favor of the plaintiff for the sum of $1,500, with interest from April 19,1907.”

If the interest had been included with the verdict, the judgment would have exceeded $1,500 and would have been beyond the jurisdiction of this court. The question of jurisdiction under the facts as stated was submitted, without argument by the parties. We are all of the opinion that this court has jurisdiction. It is fixed by the Act of June 24, 1895, P. L. 212, as amended by the Act of May 5, 1899, P. L. 248, sec. 1 (c). The act of 1895 provides, sec. 7: “The said court shall have no original jurisdiction except that it may issue writs of habeas corpus, but it shall have exclusive and final appellate jurisdiction of all appeals which are now allowed to the Supreme Court in the following classes of cases:” Clause (c). Said section was amended by the first section of the act of 1899 as follows: “Any action, claim, distribution or dispute of any kind in the common pleas, at law or in equity, whether originating therein or reaching that court by appeal or certiorari from a justice of the peace or alderman or magistrate, if the subject of the controversy be either money, chattels, real or personal, or the possession of or title to real property, and if also the amount or value thereof really in controversy be not greater than fifteen hundred dollars, exclusive of costs, and if also the action be not brought, authorized or defended by the attorney general in his official capacity.”

It is also provided in sec. 4 of the act of 1899: “In any suit, distribution or other proceeding in the common pleas or orphans’ court, if the plaintiff or claimant recovers damages, either for a tort or for a breach of contract, the amount of the judgment, decree or award shall be conclusive proof of the amount really in controversy, but if he recovers nothing, the amount really in controversy shall be determined by the amount of damages claimed in the statement of claim, or in the declaration.”

It was held in Prentice v. Hancock, 204 Pa. 128: “Under the Act of May 5, 1899, P. L. 248, on appeal from a decree or judgment for the payment of money in any court or any form of action, the amount in controversy is determined for purposes of jurisdiction by the amount of the decree or judgment.” See also Astwood v. Wanamaker, 209 Pa. 103; May’s Estate, 218 Pa. 64.

The judgment in this case was entered for the amount and as of the date of the verdict — 81,500—and this, in accordance with the act of assembly and the interpretation thereof, as in the cases, cited above, fixes the jurisdiction.

The two assignments of error raise but a single question. The defendant asked the court below to say that the verdict should be in its favor and this having been refused that judgment should be entered for the defendant n. o. v. This was also denied and the double refusal assigned for error.

The case turns upon practically a single fact: Was the machine operated by the plaintiff and in the operation of which the accident, for the recovery of damages for which this suit is brought, in' proper condition for safe operation and was the defendant responsible therefor? The testimony in regard to the condition of the machine and as to the immediate cause of the accident was conflicting and was undoubtedly for the jury, if there was anything in the case to be submitted to them. There is no complaint as to the manner in which it was submitted and we do not well see how there could be. The charge of the court below was unusually full, but very clear and absolutely unbiased. The testimony of the plaintiff was that he operated a machine called a planer or jointer in the manufactory and under the direction of the defendant; that, by reason of the absence of a set screw, which was a material part of the machine, one of the horizontal tables, upon which the material to be planed was pushed toward the revolving knives which constituted the planer, was liable to drop or sag one-sixteenth of an inch or less; that, by reason thereof, when short or cross-grained pieces weré fed to the head in which were the revolving knives, the tendency was to cut deeper than was safe and, in case of cutting against the grain, to drive the block being planed backward from the machine. This was what actually happened to the plaintiff, and, inasmuch as it was necessary for his left hand to rest upon the block, in order to keep it in contact with the planer, when the block was thrown back, his hand went into the machine, and when his shirt sleeve was caught, the revolutions were so rapid that he was unable to withdraw it, his arm was drawn into contact with the knives and was cut off four or five inches below the elbow. The testimony of the plaintiff was that he had frequently complained to both the manager and foreman of the absence of the set screw and the consequent unsafe condition of the machine. He attempted to remedy the absence of the set screw by the use of a wedge or a beveled block, as one of the witnesses described it, which, as he alleged, when in place, kept the horizontal table in proper relation to the revolving knives. When this wedge or block became displaced, he was usually able to tell of the changed conditions by the spund, but his testimony shows that, on the occasion when the accident occurred, the displacement of the block and the deep cut of the knife into the cross-grained block which he was endeavoring to plane were practically simultaneous and that no notice was given him of its displacement, so that it could be remedied.

The testimony of the plaintiff is that he had not only complained to the general manager and foreman of the absence of the set screw, but that the latter “said he would get it put in, but he didn’t get it put in.” The latter, being called as a witness for the defendant, said that the plaintiff had complained to him once or twice in regard to the absence of the set screw, but said in reference to the complaint on cross-examination: “Q. How often did he speak to you about it? A. I remember him speaking to me about it. Q. How often? A. I cannot say that; maybe once. Q. Maybe a dozen times? A. No, sir, I don’t remember more than once or twice. Q. Once or twice? A. Not more than that. Q. That many times you remember? A. Yes, sir, I remember him saying something about the set screw being out. Q. What did you tell him? A. I told him that that had nothing at all to do with his machine. Q. Did you ever tell him you would get it fixed? A. No, sir. Q. Did you ever tell him to put the wooden wedge in? A. No, sir. Q. Or to keep it in? A. No, sir. Q. You don’t know who put the wooden wedge in? A. Only from what he said himself. Q. Have you any reason to doubt that what he said was correct on that subject? A. No, sir.”

In his examination in chief by the defendant, the genera] manager was asked: “ Q. Did you ever receive any complaints that, by reason of the set -screw being missing, the back table lowered? A. No, sir. Q. Did he ever complain to you that it was dangerous, by reason of the absence of the set screw? A. No, sir. Q. Did he complain to you that the set screw was missing? A. Yes, sir, he mentioned that fact to me. Q. What did you tell him? A. I said I would see Mr. Waid about it. Q. Did you ever put any in there? A. No, sir. . . . Q. Did you do anything in the repair of the machine? A, No, sir. Q. In the construction part of it? A. No, sir, we always depend on Mr. Waid to do that. He had entire charge of that; Mr. Waid we believe is' an expert in that line. Q. He is an expert in the line of machinery? A. Yes, sir, and repair work.”

There was, therefore, a conflict of testimony as to the fact that’the machine was out of adjustment and that the set screw had anything to do with keeping it adjusted, that the horizontal table upon which the machine was fed was out of alignment, that the defendant had notice of the defect and that its responsible representative promised to remedy it. It was admitted by the general manager, as shown by the testimony quoted above, that the plaintiff gave him notice in regard to the alleged defect and that he said he would see Mr. Waid about it. Assuming that the plaintiff was mistaken as to the promise to remedy or repair, and that the language used was what is said by the general manager, what did that mean and what was the idea conveyed to the mind of the plaintiff by the language used? This was for the jury, whose province it is not only to weigh and determine conflicting evidence, but also to interpret the meaning of the language used by witnesses in their oral testimony.

The appellants strenuously urge that, if the machine operated by the plaintiff was dangerous, he had the exclusive charge of it, knew of the danger, was responsible for its maintenance and repair and was, therefore, according to his own showing, guilty of contributory negligence. It appears by the testimony of both plaintiff and defendant that the defendant’s manager and foreman both insisted, and they also insisted at the trial, that the machine was not out of order and could not be so, by reason of the absence of the set screw, which they claim had'nothing to do With the alleged defect, as claimed by the plaintiff, and the accident which resulted therefrom. Whilst admitting that complaint was made, or at least that their attention was drawn to the absence of the set screw, they deny also that any promise or offer to replace the set screw or to have the alleged defect remedied was made by them. It is undoubtedly true that, “If the instrumentality by which the servant is to perform his duty is so obviously and immediately dangerous that a man of common prudence would refuse to use it, the master is not liable for resulting damages, the servant being in such case guilty of concurrent negligence,” but it is also true that, “When the servant, in obedience to the master, incurs the risk of machinery, which though dangerous is not so much so as to threaten immediate injury, or it is reasonably probable may be used safely by extraordinary caution, the master is liable for a resulting accident:” Patterson v. P. & C. R. R. Co., 76 Pa. 389. To the same effect is Brownfield v. Hughes, 128 Pa. 194; Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543.

“When a servant remains in the service of his master, after he has knowledge of the dangerous condition of the place in which he is engaged, he is presumed to assume the risk of the danger, but this presumption is rebutted if the master promises to repair the defect and the danger is not so obvious or imminent but that negligence can fairly be imputed to the servant for exposing himself to it:” Webster v. Monongahela River Consolidated Coal & Coke Co., 201 Pa. 278; Held v. American Window Glass Co., 207 Pa. 534; Maines v. Harbison-Walker Co., 213 Pa. 145.

The evidence as to the dangerous character of the machine is conflicting. It is conceded that the defendants did not consider the machine dangerous and communicated this opinion to the plaintiff. The testimony as to the promise to remedy the effect of the loss of the set screw is also conflicting, but was such as to be necessarily submitted to the jury.

There was no motion for a new trial, and what the court might have done in the event of such a motion can only be conjectured, although it is evident from the charge of the court, that the case was regarded as a very close one, and so we regard it, but we cannot see how it could have been withheld from the jury.

Judgment affirmed.


author: Orlad y, J.,

text:
    Yost v. Anchor Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Policy—Construction of policy — Unoccupied building.

    1. All instruments and agreements are to be construed so as to give effect to the whole, or as large a portion as possible, of the instrument or agreement, and when a court of law is construing an instrument, it is legitimate, if two constructions are fairly possible, to adopt the one which equity would favor. When words admit of two senses, that which gives effect to the design of the parties is preferred to that which destroys it. Words, if of common use, are to be taken at their natural, plain, obvious and ordinary signification, but if technical words are used, they are to be used in a technical sense, unless a contrary intention clearly appears in either case from the context.
    2. An insurance company is chargeable with knowledge of the usual and customary methods of conducting the business which it insures.
    3. As commonly used and understood, the word “occupation” is synonymous with “possession,” but as used in a fire policy, providing that it shall become void if the house insured becomes unoccupied, means that no one lives therein. It is not synonymous with vacant, but is that condition where no one has the actual use or possession of the thing or property in question. In such constructions, the word is to be construed with reference to the nature and character of the building, the purpose for which it is designed, and the uses contemplated by the parties as expressed in the contract.
    4. A policy of insurance must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to indemnity, which, in making the insurance, it was his object to insure.
    5. Conditions providing for forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced, and they are enforced only when there is the clearest evidence that that was what was meant by the stipulation of the parties; there must be no cast of management or trickery to entrap the party into a forfeiture.
    6. A policy of fire insurance on what was known as a summer hotel had incorporated in it the following clause: “Permission granted to remain unoccupied during winter months, it being understood, however, that when so unoccupied, a competent person shall be in charge.” The hotel accommodated from 300 to 350 people. It was closed on September 1, after which time it was occupied by a competent watchman or caretaker with his family, until a fire destroyed it on September 29. The insurance company claimed that September not being a calendar winter month, the provision, that the policy should be void “if the premises are unoccupied and so remain for ten days,” was operative. Held (1), that it was for the jury to say under all the circumstances of the case whether the fire occurred during a winter month within the meaning of the policy, and (2) that a verdict and judgment for plaintiff should be sustained.

      Insurance — Fire insurance — Damages—Cash value.

      7. The words in a policy of fire insurance “actual cash value of the property at the date of the fire,” do not mean market value, but such value must be ascertained from the evidence and determined by the jury.
    Argued Nov. 11, 1908.
    Appeal, No. 142, Oct. T., 1908, by defendant, from judgment of C. P. Berks Co., Feb. T., 1906, No. 74, on verdict for plaintiff in case of Heber Y. Yost, Trustee, v. The Anchor Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Endlich, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for 81,076.86. Defendant appealed.

      Error assigned among others was in submitting the case to the jury.

      Arthur S. Arnold, with him C. H. Ruhl, for appellant.
    The provision that %he policy should be void if the premises were unoccupied and so remain for ten days is valid: Hardiman v. Fire Assn. of Phila., 212 Pa. 383; McClure v. Ins. Co., 90 Pa. 277; Moore v. Ins. Co., 199 Pa. 49.

      Premises are unoccupied within the contemplation of the policy when they cease to be used for the specific purpose for which they were designated and intended: Hampton v. Hartford Fire Ins. Co., 65 N. J. L. 265 (47 Atl. Repr. 433); Whitney v. Ins. Co., 72 N. Y. 117; Hartshorne v. Ins. Co., 50 N. J. L. 427 (14 Atl. Repr. 615); Halpin v. Ins. Co., 118 N. Y. 165 (23 N. E. Repr. 482); Keith v. Fire Ins. Co., 92 Mass. 228; Ashworth v. Ins. Co., 112 Mass. 422; Limburg v. Fire Ins. Co., 90 Iowa, 709 (57 N. W. Repr. 626); Georgia Home Ins. Co. v. Brady, 41 S. W. Repr. 513.
    The wording of the indorsement is an additional indication that in the contemplation of the parties the premises were unoccupied under the conditions existing at the time of the fire.
    The provisions of the policy are qualified by the indorsement, and this indorsement is the indorsement of the assured, in the language of the assured, composed by the assured and printed by the assured for the purposes of the assured.
    September is not a winter month.
    While it is true the word winter has as yet received no judicial interpretation so far as counsel for the defense have been able to ascertain, the other seasons of the year have received such interpretation, and if the judicial interpretations of the other seasons are correct and are recognized by this court they embrace the month of September within such, portions of the year, and conclusively exclude that month from the class known as winter months: Abel v. Alexander, 45 Ind. 523; Vanderhoef v. Ins. Co., 46 Hun, 328.
    Were there any ambiguity in the language of the assured’s indorsement, it must be construed most strongly against the assured and in favor of the insurer: Bole v. Ins. Co., 159 Pa. 53; Burkhard v. Ins. Co., 102 Pa. 262; Merrick v. Ins. Co., 54 Pa. 277; Ins. Co. v. Cropper, 32 Pa. 351.

      Thos. J. Snyder, of Snyder & Zieber, for appellee.
    A contract of insurance is like any other contract, and the same cardinal rules of construction apply: Corey v. Edgewood Borough, 18 Pa. Superior Ct. 216; Western & Atlantic Pipe Lines v. Home Ins. Co., 145 Pa. 346; Hey v. Guarantors’ Liability Indemnity Co., 181 Pa. 220; Humphreys v. Benefit Assn., 139 Pa. 264; Hoffman v. Ins. Co., 32 N. Y. 405.
    February 26, 1909:
    Forfeitures are odious in law, and are enforced only when there is the clearest evidence that that was what was meant by the stipulation of the parties: Helme v. Phila. Life Ins. Co., 61 Pa. 107; Louck v. Ins. Co., 176 Pa. 638; Stafford v. Walker, 12 S. & R. 190.
    The question as to damages was properly submitted: Laurent v. Fire Ins. Co., 1 N. Y. Super. Ct. 45; Washington Mills Emery Mfg. Co. v. Weymouth, etc., Mut. Fire Ins. Co., 135 Mass. 503; Waynesboro Mut. Fire Ins. Co. v. Creaton, 98 Pa. 451; Cummins v. Ins. Co., 192 Pa. 359.
   Opinion by

Orlad y, J.,

This action of assumpsit resulted in a verdict in favor of the plaintiff, and represented the amount of the policy in suit. It was one of a number of policies on the same property, which aggregated a total amount of insurance carried on the building and contents of $31,250.

By this policy the sum of $750 was placed on, “A five story frame and stone hotel building, 360x40 feet, including elevators, etc., attached to and a part of the building situated on the summit of the Neversink Mountain, Reading, Pennsylvania; and' $250 on Hotel and kitchen furniture,” etc. The defendant offered no evidence, and asked the court to enter a nonsuit on the ground that certain provisions in the policy precluded a recovery under the evidence in the case. This the court refused to do, and submitted the case to the jury.

Attached to and made a part of the policy is the following clause: “ Permission granted to remain unoccupied during winter months, it being understood, however, that when so unoccupied, a competent person shall be in charge; also for other insurance.” The testimony shows that the plaintiff had been the owner of the Neversink hotel property for a number of years; that this policy was countersigned and issued by the agent of the defendant at Reading, Pennsylvania; that the property was known as a summer hotel, containing 219 rooms, and with accommodations for from 300 to 350 people.

The policy was issued July 15, 1905, when the hotel was occupied by guests, and was so used until about September 1, when it was closed for the season, after which time it was occupied by a competent watchman or caretaker, with his family, until the time of the fire on September 29, 1905. The defendant's contention is that September not being a calendar winter month, the provision, that the policy should be void “If the premises are unoccupied and so remain for ten days," is valid, and that the premises were unoccupied within the contemplation of the policy, when they ceased to be used for the specific purpose for which they were designated or intended. Further, that the permission indorsed on the policy is in derogation of the express terms of the policy and is to be strictly construed in restricting the permission in violation of the terms of the policy to the winter months, so as to make the premises unoccupied under the terms of the policy at the time of the fire.

It is not suggested that the loss is not an honest one, and the validity of the verdict depends upon the construction to be put upon the policy, under the evidence, by the court below. All instruments and agreements are to be construed so as to give effect to the whole, or as large a portion as possible, of the instrument or agreement, and when a court of law is construing an instrument, it is legitimate if two constructions are fairly possible to adopt the one which equity would favor: Washington, etc., Railroad Co. v. Ry. & Navigation Co., 160 U. S. 77. When words admit of two senses, that which gives effect to the design of the parties is preferred to that which destroys it: Add. on Contr. 45. Words, if of common use, are to be taken at their natural, plain, obvious and ordinary signification, but if technical words are used, they are to be used in a technical sense, unless a contrary intention clearly appears in either case from the context.

If the condition of the policy was broken, the contract of insurance became void. The provision that it should be void if the premises become vacant or unoccupied, and so remain for ten days, was superseded and modified by the permission granted in the policy that it might remain unoccupied during the winter months, upon the condition that when so unoccupied, “a competent person shall be in charge,” and these two clauses must be read and construed together, so as to gather the true intent of the parties. In doing this, we must view the nature of the thing insured, its situation and the circumstances surrounding it; as was said in Corey v. Edgewood Borough, No. 1, 18 Pa. Superior Ct. 216: “The primary rule of construction applicable to a clause in the form of an exception or reservation, is to gather the intention of the parties from the words, by reading not simply a single clause but the entire context, and where the meaning is doubtful by considering such circumstances as are presumed to have been considered.” And it must also be presumed that the insurance company was cognizant of the apparent facts and character of the subject-matter of the insurance in regard to which they made the contract, but whether it was or not, it is certainly chargeable with knowledge of the usual and customary methods of conducting the business pertaining to property which it insured: Western and Atlantic Pipe Lines v. Home Insurance Company, 145 Pa. 346. They are presumed to be skilled in the business of insurance, and to know those general facts which are open to the public and may be known to all who are interested to inquire: Hey v. Guarantors’ Liability Indemnity Company, 181 Pa. 220. With these standards of interpretation, the defendant company must be presumed to have known the character of the building, the uses to which it was put, the character of its occupation, and the fact that it was used as a summer hotel, was known by the company, is clearly established by the very terms of the policy. There is no provision in regard to the number of guests who are to be in the building, and there is no evidence in the case of its being unoccupied at the time of the fire. The only stipulation is, that when it is unoccupied a competent person shall be in charge. The word “unoccupied” could only refer to-the occupation of the hotel by guests or patrons during its season as such hotel and when so unoccupied. “A competent person shall be in charge;” under the admitted facts this was complied with by the occupancy of the caretaker and his family. The word “occupied” has been construed in a number of cases. As commonly used and understood, the word “occupation” is synonymous with “possession,” but as used in a fire policy, providing that it shall become void if the house insured becomes unoccupied, means that no one lives therein: Herman v. Merchants' Insurance Company, 81 N. Y. 184. It is not synonymous with vacant but is that condition, where no one has the actual use or possession of the thing or property in question: Herman v. Merchants' Insurance Company, 44 N. Y. Super, Ct. 444. In such constructions, the word is to be construed with reference to the nature and character of the building, the purpose for which it is designed, and the uses contemplated by the parties as expressed in the contract. A dwelling house being designed as the abode of mankind, is occupied when human beings habitually reside in it, and unoccupied when no one lives or dwells in it: Hartshorne v. Insurance Company, 50 N. J. Law, 427; Sonneborn v. Insurance Company, 44 N. J. Law, 220; see also 8 Words and Phrases, 7198. In Hardiman v. Fire Association of Philadelphia, 212 Pa. 383, it was held, where a fire insurance policy provides that if the premises be or become vacant or unoccupied and so remain for ten days, the vacation of the premises for such a period will render the policy void, despite the fact that the premises were reoccupied as a dwelling after such time, and, that the forfeiture once determined is operative.

With all the facts presumed to be within the knowledge of both the parties when the policy was written, the closing of the hotel for summer boarders was contemplated by them, and, for the safeguarding of the premises, it was provided in the interests of both the parties, that a competent person should be in charge. In addition to a competent person being in charge of the building, the building itself was in fact occupied by the competent person and his family, and the words “winter months” were reasonably taken as opposed to the months of the season during which the hotel was open fqr customers. The one season referred in its broadest sense to the time when the hotel was closed to its patrons, and taking the “ten day” clause and the “unoccupied” clause together it is but reasonable to hold that the premium rate was ascertained in the light of the facts within the knowledge of the parties. The object of a policy of insurance is to provide indemnity to the assured in case of loss, and the policy will be construed in doubtful cases so as to effect that object, rather than to defeat it. It must have a reasonable interpretation, such as was probably in the contemplation of .the parties when it was made. No rule in the interpretation of a policy of insurance is more fully established, or more imperative or controlling, than that which declares in all cases it must be liberally construed in favor of the insured, so as not to defeat, without- a plain necessity, his claim to indemnity which, in making the insurance, it was his object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain his claim, and cover the loss, must in preference be adopted: Humphreys v. Benefit Association, 139 Pa. 264, and cases therein cited.

Conditions providing for forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced, and they are enforced only when there is the clearest evidence that that was what was meant by the stipulation of the parties; there must be no cast of management or trickery to entrap the party into a forfeiture: Helme v. Insurance Company, 61 Pa. 107; Louck v. Insurance Company, 176 Pa. 638. The burden rested on the defendant to show, not merely that the building was unoccupied at the time of the fire, but that it was unoccupied at a time which was contemplated by the qualification, and that a competent watchman was not in charge when so unoccupied. The presumption is that the plaintiff did not violate any of the conditions of the policy, and the burden rests on the defendant to show by evidence a violation of that condition, taking that condition as a whole, with all its stipulations and qualifications.

On the trial the counsel for defendant accepted the term “summer hotel” in the same sense that it was used by the plaintiff, and considered it of importance to have it in evidence» In referring to the purpose of his cross-examination of the plaintiff he stated: “He described this as a summer hotel, and under the terms of the policy it becomes important, and for that reason the term was carefully used to get it in. Having got it in — improperly, I think — I am entitled to cross-examine him on it as to what constitutes in his judgment a summer hotel,” and the court held, “You have a perfect right to find out what he considers a summer hotel.”

The word “season” in a contract employing plaintiff to purchase and deliver corn during the coming season will be construed to be used in reference to the period within which it is customary to purchase corn at the place where plaintiff is employed, and it will be presumed that the meaning of the term was well known in such locality: Myers v. Walker, 24 Ill. 133, 134, 136.

The court in construing a contract for the services of an actor during a season, said that it was a question for the jury whether the term “season” was used to designate the customary theatrical season of thirty weeks: McIntosh v. Miner, 53 App. Div. 240 (65 N. Y. Supp. 735, 737).

The defendant presented the following point: The actual cash value of the property at the time any loss or damage occurs is equivalent to and means the market value of the property at the time the loss or damage occurred, which the court below refused. There is ample support to be found for the action of the court in Waynesboro Mutual Fire Insurance Company v. Creaton, 98 Pa. 451, and in Cummins v. Insurance Company, 192 Pa. 359, in which latter case the court below says, “Under the express terms of the contract, the insurers were only liable for the ‘actual cash value of the property’ at the date of the fire.” What was the cash value must be ascertained from the evidence; the price of oak and pine lumber and shingles at the date of the fire was by no means conclusive as to the cash value of the barn, but it was evidence bearing on the question; what weight it was entitled to would depend on the dimensions, quality and kind of timber in the barn as compared with the price of such timber at the time of its destruction. The weight of such testimony could only be properly determined after it was sifted by cross-examination. Nevertheless, it was evidence, whether of great or little weight, for the consideration of the jury, and the court committed no error in admitting it.

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


author: Porter, J.,

text:
    West Chester Borough, Appellant, v. Postal Telegraph-Cable Company.

      Constitutional law — Special legislation — Municipalities—License fees —Telegraph companies — Act of April 17, 1905, P. L. 183.
    1. The Act of April 17, 1905, P. L. 183, entitled: “An Act Providing for the determination by the Court of Common Pleas of the proper county of all disputes as to the reasonableness of the amount of license fees between municipal corporations and. telegraph and telephone, or light or power companies,” is not unconstitutional as special legislation because it does not include electric street railway companies within its provisions. Electric street railway companies are nothing but “street passenger railways,” and such companies are by the constitution itself put into a separate class.
    2. The findings of fact by the court below in a proceeding under the Act of April 17, 1905, P. L. 183, to determine the reasonableness of a license fee imposed by a borough on a telegraph company when sustained by sufficient evidence, will not be reversed by the appellate court.
    Argued Nov. 18, 1908.
    Appeal, No. 181, Oct. T., 1908, by plaintiff, from order of C. P. Chester Co., Aug. T., 1907, No. 22, in proceedings to determine the reasonableness of license fees in case of West Chester Borough v. Postal Telegraph-Cable Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition under the Act of April 17, 1905, P. L. 183, for a citation to determine the reasonableness of license fees imposed upon telegraph poles. Before Butler, J.
    The facts are stated in the opinion of the Superior Court.
    Butler, J., entered the following order:
    June 15, 1908, it is ordered that the Postal Telegraph-Cable Company shall pay to the borough of West Ghester, thirty cents per pole — $16.80 per year; for the years beginning June 1, 1906 and 1907, and $17.10 for the year beginning June 1, 1908, with interest on each yearly amount from June 1 of the year for which it is payable. And thirty cents per pole is fixed as the annual fee to be collected by the borough from the Postal Telegraph-Cable Company, on each of its poles located in the borough. The costs of this proceeding are equally divided between the parties.
    February 26, 1909:

      Error assigned was the order of the court.

      Wm. S. Windle, for appellant.
    The act of 1905 is unconstitutional: Morrison v. Bachert, 112 Pa. 322; Seabolt v. Commissioners of Northumberland County, 187 Pa. 318; Wheeler v. Philadelphia, 77 Pa. 338; Long Branch v. Sloane, 49 N. J. L. 356 (8 Atl. Repr. 101); Com. v. Gilligan, 195 Pa. 504.
    The fee was unreasonable: Atlantic, etc., Tel. Co. v. Philadelphia, 190 U. S. 160 (23 Sup. Ct. Repr. 817); W. Conshohocken Boro. v. Light & Power Co., 29 Pa. Superior Ct. 7; Kittanning Borough v. Kittanning Consolidated Nat. Gas Co., 26 Pa. Superior Ct. 355; Kittanning Boro. v. Water Co., 35 Pa. Superior Ct. 174; Kittanning Boro. v. Western Union Tel. Co., 26 Pa. Superior Ct. 346; Collingdale Boro. v. Keystone State Tel. & Tel. Co., 35 Pa. Superior Ct. 351; Pottsville Boro. v. Gas Co., 33 Pa. Superior Ct. 480; Western Union Tel. Co. v. New Hope, 187 U. S. 419 (23 Sup. Ct. Repr. 204).

      C. W. Talbot, for appellee,
    cited as to the constitutional question: Sugar Notch Borough, 192 Pa. 349; United Telephone, etc., Company’s Petition, 15 Pa. Dist. Rep. 193; Pennsylvania Telephone Company v. South Bethlehem Borough, 16 Pa. Dist. Rep. 878.
    Cited as to the reasonableness of the order: Western Union Tel. Co. v. New Hope, 187 U. S. 419 (23 Sup. Ct. Repr. 204).
   Opinion by

Porter, J.,

The borough of West Chester, by ordinance approved April 11, 1906, ordained that each telegraph, telephone, electric light and electric railway company using poles with wires strung thereon within the limits of said borough should pay an annual license fee of fifty cents for each pole used by any of said companies in any street, alley or highway of the borough. The borough, in 1907, brought this action to recover of the defendant company the amount of the license fees imposed by this ordinance upon the poles which it maintained in the streets of the borough. The defendant company presented a petition to the court, under the provisions of the Act of April 17, 1905, P. L. 183, averring that the amount of the annual license fee imposed by the ordinance was unreasonable and excessive, that for this reason a dispute had arisen between the borough and the company, and prayed the court to hear the parties and determine the amount of the annual license fees which should be paid by the company to the borough in order to properly compensate it for the necessary cost of the service performed, or to be performed by -it, for the inspection and regulation of the poles of the defendant company. The representatives of the borough and of the defendant company, respectively, then entered into a written agreement providing that, in this action, “in accordance with the provisions of the Act of assembly, approved April 17, 1905, P. L. 183, the amount of annual license fees to be paid by said company, the defendant, shall be determined by the court, at such time as to the court shall seem proper; and that the decision of the court shall have the same effect as if no suit had been begun, and as if the petition had been presented pursuant to the act of assembly aforesaid, and all subsequent proceedings by reason thereof had been in accordance with the said act.” The effect of this agreement is simply to constitute this a proceeding under the act of April 17, 1905. The court below after hearing the parties and considering the evidence which they presented entered a decree fixing the amount of the annual license fee to be paid by the defendant company upon its poles in the streets of the borough at thirty cents per pole. The borough appeals and contends that the decree of the court below should be reversed upon two grounds: first, that the Act of April 17, 1905, P. L. 183, is unconstitutional and, second, that the evidence produced established that-the charge imposed by the ordinance was reasonable and ought not to have been reduced by the court below.

The ground upon which the borough contends that the statute is unconstitutional is that it is special legislation in that it does not apply to all public service corporations maintaining poles in the public streets. The act applies to telegraph, telephone, light and power companies, and would thus seem to embrace all companies known to modern conditions which use poles carrying wires for the purpose of the transmission of messages, light or power. The learned counsel representing the borough contends, however, that “trolley companies” also maintain poles in the streets for the purpose of sustaining wires carrying an electric current to be used in the movement of their cars, and that because the statute does not mention and include such companies, it therefore does not apply to all property within the class and must be held to be special legislation, within the prohibition of the constitution. The sole objection to the statute is that because electric street railway companies are not subject to its provisions, although it is conceded that all other companies having the right to erect poles, sustaining wires carrying an electric current, are so subject, this involves a classification of subjects which renders the act unconstitutional. The fact that “trolley companies,” or electric street railways, are nothing but “street passenger railways,” and as such are by the constitution itself put into a separate class would seem to be a sufficient answer to this criticism of the statute. Article XVII, sec. 9 of the constitution, is in these words: “No street railway shall be constructed within the limits of any city, borough or township, without the consent of its local authorities.” The power of the municipal authority, under this constitutional grant, to give or refuse consent is unlimited and unqualified. That necessarily implies the power to impose reasonable conditions in giving consent. When the municipality, in the ordinance consenting to the construction of a street railway, imposes a condition, the street railway company, if it accepts the grant, must perform the condition. The municipality may couple its consent with a condition that the street railway company shall carry passengers at a designated rate of fare, and that a certain percentage of the dividends shall be paid to the municipality: Allegheny v. Railway Company, 159 Pa. 411; Millcreek Township v. Erie Rapid Transit Street Railway Company, 209 Pa. 300. So the municipality may by the form of its consent impose upon the street railway the burden of paving and keeping streets in repair: Duquesne Borough v. Kunze, 7 Pa. Superior Ct. 313. It cannot be seriously questioned that if a municipality imposed, as a condition of its consent, that the street passenger railway company should pay a certain rate annually for each pole sustaining the wires carrying the electric current, which furnished the power for its cars, that the company, if it accepted the grant, would subsequently be required to perform the condition. Neither the legislature nor the courts can trespass upon the discretion given absolutely by the constitution to the local bodies, in determining the conditions upon which they will consent to the construction of a street passenger railway upon the local highways. The introduction and maintenance of telegraph, telephone, electric light and electric power poles and wires, upon the streets, as well as the construction of gas and water lines under the surface of such highways, are subjects with regard to which the legislative control of the streets is complete, and the municipalities have only such authority in regard thereto as the legislature may choose to grant. The legislature may in terms confer upon municipal corporations the power to pass ordinances of a specific and defined character, and an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if passed under the incidental power of the corporation, or under a grant of power general in its nature: Ligonier Valley Railroad Company v. Latrobe, 216 Pa. 221. The legislature may, by general law, authorize the construction of telegraph and telephone lines upon the streets, or of natural gas lines under the surface, and exempt those lines from local charges for police supervision by the municipalities, or limit such charges and provide that the imposition of them by the local authorities may, upon the petition of either party, be reviewed and corrected by the courts: Appeal of the City of Pittsburg, 115 Pa. 4; Fort Pitt Gas Company v. Sewickley Borough, 198 Pa. 201; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156. These things it may do with regard to those subjects as to which its control of the streets is not limited by constitutional restriction. The legislature might absolutely forbid the maintenance of electric light or electric power wires upon poles in the streets of a municipality, while at the same time authorizing telegraph and telephone lines to be therein maintained. The power of local municipal authorities to make such discrimination is dependent upon grant by the legislature. The act of 1905 applies to all telegraph and telephone companies, in every city, borough and township in the state; it is a general act, and not special legislation within the meaning of the constitutional provision.

We have considered the evidence which was produced by the parties at the hearing of this matter in the court below and have arrived at the conclusion that the decree of the court below, fixing the annual license fee to be paid by the defendant company at thirty cents for each pole maintained by it in the streets of the borough, ought not to be disturbed. The ascertainment of the facts involved the balancing of conflicting testimony, the credibility of witnesses, and the consideration of existing local conditions. The findings of fact by the learned judge of the court below were abundantly sustained by evidence, and we find no reason for disregarding them. The conclusions of law based on those findings of fact are in accordance with the principles recognized in the opinion of our Brother Head, in Delaware & Atlantic Telegraph & Telephone Company’s License Fees, 37 Pa. Superior Ct. 151, and upon that branch of the case nothing can profitably be added to what was there said.

The decree of the court below is affirmed and the appeal dismissed at costs of the appellant.


text:
    Pyott v. Baltz, Appellant.

      Sales — Executed sales — Warranty—Evidence.
    1. There is no implied warranty in executed sales, except that of title, nor is there any in cases where the sale is made upon inspection of a buyer.
    •2. Although to constitute a warranty no particular form of words is required, the naked averment of a fact without more, is not a warranty. In connection with other circumstances it certainly may be taken into consideration, but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation. Should he have used expressions partly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee has gratuitously relied on it.
    3. In an action to recover the price of cows sold by the plaintiff to the defendant, it appeared that the sale was made at public auction. Immediately prior to the sale defendant examined the cows personally and by his veterinarian. The latter asked the plaintiff whether he would submit the cows to the tuberculin test, which the plaintiff refused. There was evidence that the plaintiff stated that he intended to sell the cows as being sound cows, and that he had never had any suspicion of their having tuberculosis. After the, sale the defendant had the cows examined by tuberculin test, and some of them were found to be affected with tuberculosis. At the trial the court submitted the question of warranty to the jury. Held, that a verdict and judgment in favor of plaintiff for the full amount of his claim should be sustained.
    Argued Nov. 19, 1908.
    Appeal, No. 193, Oct. T., 1908, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1907, No. 53, on verdict for plaintiff in case of Joseph R. Pyott v. William S. Baltz.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on an unpaid check. Before Broomall, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $347.87. Defendant appealed. .

      Error assigned was in refusing binding instructions for defendant.

      Edward H. Hall, with him C. Wilfred Conrad and John D. Baltz, for appellant.
    The law of Pennsylvania is well settled that there is an implied warranty of kind in every sale of chattels: Borrekins v. Bevan, 3 Rawle, 23; Wilson v. Belles, 22 Pa. Superior Ct. 477; Ulrich v. Stohrer, 12 Phila. 199; Cunningham v. Welsh, 1 W. N. C. 315; Holt v. Pie, 120 Pa. 425; Holloway v. Jacoby, 120 Pa. 583; Groetzinger v. Kann, 165 Pa. 578; Pratt v. Paules, 4 Atl. Repr. 751; Joseph v. Richardson, 2 Pa. Superior Ct. 208; Smith v. Justice, 13 Wis. 600; Savings Bank v. Fraze, 9 Ind. App. 161 (36 N. E. Repr. 378); Herman v. Brinker, 17 Pa. Superior Ct. 177; Burch v. Spencer, 15 Hun (N. Y.), 504; Snowden v. Waterman, 31 S. E. Repr. 110.
    February 26, 1909:
    There was evidence of an express warranty of the cows which should have been submitted to the jury: Mitchell v. Zimmerman, 109 Pa. 183.

      George T. Butler, with him John J. Gheen, for appellee.
    The court properly submitted the question of an express warranty: Herman v. Brinker, 17 Pa. Superior Ct. 177.
   Opinion by

Orlady, J.,

This action of assumpsit is brought to recover from the defendant the amount of an unpaid check which was given under the’following circumstances: By handbill and newspaper, the plaintiff advertised a public sale of a herd of cows on November 4, 1907. On October 31, the defendant sent a veterinarian to examine the herd, which was done in the presence of the plaintiff. The defendant appeared on the day of sale, and had a conversation with the plaintiff in regard to the cattle. He testified as follows: “Q. What did you say to him or he to you about the cows? A. I asked him if he had raised these cows and knew all about them. He said, Yes, with a few exceptions. I asked him if they were sound and all right, and he said, Yes, as far as I know. Then I repeated the question: Will you sell them to be sound and all right? And he answered, Yes.” The cows were put up at sale, and as each cow was put up, the auctioneer asked Mr. Pyott as to the cow, and he made the statement, “This cow is all right,” and then made some other statement as to her condition. I understood these cows were extra fine, and I had been led to believe they were all right; they were guaranteed to be sound and all right in every way, and owing to that fact, I supposed I was getting cows of that kind. There was no question about it. “Q. What do you mean by 'being led to believe the cows were all right? ’ A. I was relying on the assurance Mr. Pyott made and in regard to other statements. He told Dr. Bartholomew — he made some of the statements to him.” The veterinarian testified that when he inspected the herd, he asked the plaintiff if he would submit the cows to a private tuberculin test, at the expense of a prospective buyer, to which the plaintiff replied, “ No, I had these cows examined two years ago, and they are all right.” “I says, Do you mean examined with tuberculin? He says, No, they were examined by Dr. Conrad, by direction of the board of health, which issued an order that there was not any milk to be shipped into the city until a certificate of a veterinarian accompanied the shipment. He also said he would not have tuberculin put in his cows. I saw he had a prejudice against certain things, and I asked him if he ever had any cows that went off in condition that he had to sell on that account. He said, No. Never had any suspicion of having any tuberculosis? He said, No. Well then I says, You sell these cows as being sound cows? He says, That is the way I intend to sell them.”

The auctioneer corroborated the statement made as they were offered for sale, and added, “The way we guarantee cows, is that she is quiet, and will milk out of all her teats, and not suck themselves. I never heard tell of a guarantee at a public sale of soundness. We guarantee them to be straight and all right.” Other witnesses testified to the same facts in substance. The plaintiff denied that he gave any warranty as to the health of any particular cow. The defendant purchased fourteen cows at the price of 11,141, in payment of which he gave his check for |336, being the check in suit and a promissory note for the balance of the purchase money. After removing the cows to his farm they were submitted to a tuberculin test by Dr. Bartholomew and five of them were found to be affected with tuberculosis. The plaintiff was at once notified, the payment of the check was stopped by the defendant who offered to return the cows to the plaintiff. This was refused, and suit was brought to recover.

The affidavit of defense alleges that the cows were publicly guaranteed and warranted to be all high grade, sound and all right, and free from disease or other infirmities, and the defendant relying on these statements and guarantees purchased said cows. On the trial the proof did not measure up to this statement of the fact, and the contention was then urged, that the plaintiff had made an implied warranty instead of a specific one, under the testimony as above quoted. The case was submitted to the jury, which returned a verdict in favor of the plaintiff for his full claim.

The defendant submitted the following point: If the jury finds that the plaintiff warranted the cattle or any of them sound at the time of the sale, and that they or any of them at the time were affected with tuberculosis, there was a breach of warranty, and the plaintiff cannot recover for the cattle so affected, to which the trial judge answered, “That is affirmed. I have already said in your hearing, probably two or three times, that if this defendant bought a warranty with these cattle, as to their soundness, and that warranty is broken, and it is broken if you believe tuberculosis creates a condition of unsoundness, then the plaintiff is not entitled to recover,” and in the body of the charge stated to the jury, “If the plaintiff represented at this sale that the cows were sound at that time, intending that such representation should be relied upon by the buyer, and the buyer purchased on the faith of the truth of such representation, this is warranty. . . . While it is important to know what a man intends as construing to some extent what he subsequently does, yet the all important thing is, What does he do? And, further, if you determine that these cows were put up at the sale, and sold as sound, then the verdict would be for the defendant; I say that, of course, subject to the thought that you would determine whether tuberculosis was a condition of unsoundness or not. If you do, then the warranty was broken, and as I repeat, if you determine that Mr. Pyott put up these cows and sold them as sound, subject to what I have said, your verdict would be for the defendant. If on the other hand you should not determine that these cows were put up and sold by Mr. Pyott as sound, then the verdict will be for the plaintiff.

Under the defendant’s own statement of the case, he knew that the plaintiff had refused to submit his cows to the tuberculin test, and the representation as to their condition was a question under the evidence for the jury, which tribunal has resolved the question of fact against the defendant’s contention. If the defendant felt that the tuberculin test was the only certain method of ascertaining whether the cows were infected or not, he could have refrained from bidding, but evidently he did not make that a condition precedent to his being liable at a public sale, where the property had been physically inspected by a veterinarian and himself. There is no implied warranty in executed sales, except that of title; nor is there any in cases where the sale is. made upon inspection by the buyer. In executory sales the seller warrants that the article shall be of the kind ordered and merchantable in quality. This is the rule laid down in Borrekins v. Bevan, 3 Rawle, 23, and followed through a long line of cases down to Selser v. Roberts, 105 Pa. 242. Whether there was an express warranty was purely a question of fact, and that has been disposed of by the jury. The general doctrine of Pennsylvania cases is that, though to constitute a warranty no particular form of words is required, the naked averment of a fact without more, is not a warranty. In connection with other circumstances it certainly may be taken into consideration, but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation. Should he have used expressions partly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee has gratuitously relied on it: Herman v. Brinker, 17 Pa. Superior Ct. 177.

The plaintiff has certainly no cause to complain of the submission of the question of the warranty to the jury, nor can we see that he has any reason to complain of the manner in which it was submitted.

The evidence offered to the court, in support of his motion for a new trial, was properly disposed of in the court below; no reason was given why it might not have been produced on the trial of the case, and it did not measure up to the requirements of the after-discovered evidence, to justify the court in referring the case another time to a jury.

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