author: Henderson, J.,

text:
    Samuel, Appellant, v. Pennsylvania Railroad Company.

      Evidence — Refreshing memory — Memorandum ■— Affidavit — Scale ticket.

    1. A weighmáster whose duty is to weigh cars and keep records of weight, may not refresh his recollection as to weights by referring to his own affidavit made two months after a ear was weighed, where he is unable to state that the weights set forth in the affidavit were derived from records which he himself had made, or which he knew to be correct at the time the affidavit was prepared.
    2. Where a case turns on the weight of a car of steel scrap, a scale ticket is properly excluded which does not contain the number of the car, nor any marks to show that it related to the freight in question, and there is no other proof to identify it or connect it with the car and .the freight in question.
    Argued Oct. 20, 1910.
    Appeal, No. 134, Oct. T., 1910, by plaintiffs, from order of C. P. No. 1, Pbila. Co., Dec. Term, 1908, No. 1,437, refusing to take off nonsuit in case of Prank Samuel and Silas M. Tomlinson, trading as-Frank Samuel, v. Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for breach of contract to carry a car load of steel scrap. Before Brégy, P. J..

      The facts are stated in the opinion of the Superior Court.

      Errors assigned were (1, 2) rulings on evidence referred to in the opinion of the Superior Court.

      Lewis Lawrence Smith, for appellants.
    The witness should have been permitted to refresh his memory by referring to his affidavit: Dodge v. Bache, 57 Pa. 421; King v. Faber, 51 Pa. 387; Lycoming County Mut. Ins. Co. v. Schreffler, 44 Pa. 269; Heart v. Hummel, 3 Pa. 414; Babb v. Clemson, 12 S. & R. 328; Sailer v. Sewing Machine Co., 34 Leg. Int. 115; Wells Whip Co. v. Fire Ins. Co., 209 Pa. 488; Charles v. Bishoff, 1 Sadler, 260; Mead v. White, 6 Sadler, 38; Com. v. Ford, 130 Mass. 64; Bonnet v. Glattfeldt, 120 Ill. 166 (11 N. E. Repr. 250); Houston & T. C. R. R. Co. v. Burke 55 Texas, 323 State v. Aspara, 113 La. 940 (37 So. Repr. 883); Portsmouth St. Ry. Co. v. Peed, 102 Va. 662 (47 S. E. Repr. 850).

      J. H. Rhoads, of Seller & Rhoads, appellee.
    March 3, 1911:
   Opinion by

Henderson, J.,

This action was for the value of a quantity of steel scrap which the plaintiffs allege the defendant received from them in Philadelphia for transportation to the Alan Wood Iron and Steel Company at Ivy Rock and failed to deliver. After the car was received the iron and steel company reported to the plaintiffs a shortage in weight, whereupon the plaintiffs asked that company for the scale ticket.and an affidavit of weight covering the shipment. In compliance with this request the iron and steel company forwarded to the plaintiffs the affidavit of Charles J. Gaul, weighmaster of that company sworn to June 29, 1904, and a part of a scale ticket. Mr. Gaul was called as a witness by the plaintiffs to prove the weight of the steel received by the consignee. He did not have a present recollection of the weight of the car, but' had in his hand while testifying the affidavit which he had made in 1904, from which the counsel for the plaintiffs proposed to have him refresh his recollection. This the court refused to permit him to do and this is the subject of the first assignment of error. The witness testified that he made the affidavit from the data which he had in the office and that he did not remember what the car weighed independently of the affidavit. As this was made more than two months after the car was received at the destination it is readily understood why the witness did not remember the number and weight of the car and that the matters set forth in the affidavit were reproduced from some record kept in the office of the company. But the infirmity of the plaintiffs’ case in this respect is that it does not appear that the weights set forth in the affidavit were derived from records which the witness made or which he knew to be correct at the time the affidavit was prepared. The nearest the witness comes to explaining the source of the information contained in the affidavit appears in the following excerpt from his evidence: “Q. You were the weighmaster when you made that affidavit? A. Yes, sir. Q. You made it from the data which you had in the office? A. Yes, sir.” There was nothing at the time of the weighing to call the attention of the witness to the fact that the weight was short nor apparently until about the time he was called on to make the affidavit. It then became necessary for him to refer to the “data” in the office. If it had appeared that the facts of the affidavit were obtained from a scale ticket or other memorandum made by him at the time he weighed the car or made by some other person under his observation at that time we think the affidavit might have been used to refresh the recollection of the witness, but he did not state that at the time the affidavit was made he remembered the figures to be as set forth therein. The witness might with the utmost honesty and good faith make the affidavit on the strength of information which he obtained in the office from some records kept there by some other employee of the company, but this would not make it a memorandum on which the witness could rely to refresh his recollection. It would be merely a repetition of the contents of a record of the company. If the witness had made the “data” from his own knowledge of the facts at the time the weighing was done and in making the affidavit his recollection was refreshed by a reference to some record made by himself or under his supervision it would have been competent for him to refresh his recollection at the trial by reference to the affidavit, but the testimony does not show that this was the history of the affidavit and without a statement by the witness to the effect that he knew of his own knowledge that it contained a correct statement of the weights the court was not in error in declining to permit the memorandum to be used.

The second assignment relates to the refusal of the court to admit in evidence the part of a scale ticket which was offered to support the claim. The ticket did not contain the number of the car nor any marks to show that it related to the plaintiff’s freight and when the witness, Gaul, was questioned about the ticket he said: “I cannot say that is the ticket. No, sir.” When interrogated as to the disposition made of the scale tickets after the cars were weighed the witness said “As soon as these tickets are marked they put them in a bundle and file them away.” The witness did not know when nor how the ticket in question got into the possession of the plaintiffs. He did say that he knew it related to the car in question because of the way it corresponded with the affidavit made by him, but that was, of course, a conclusion of the witness not from his recollection but from the identity of the weight stamped on the ticket and the weight set forth in the affidavit and he was unable to connect the ticket with the transaction in any other way. As the case stood at the time the ticket was offered there was a failure to identify it or connect it with the transaction and the court was not in error in rejecting the offer. As this closed the plaintiffs’ case on the subject of the shortage of weight when the car was delivered there was an entire failure to make out a case and the nonsuit was properly granted.

The judgment is affirmed.


source: Caselaw Access Project

author: Hendekson, J.,

license: Public Domain

text:
    A. C. Denahan & Company, Incorporated, v. Holmesburg Granite Company, Appellant.

      Contract—Substantial performance—Fraud—Question for jury.

    1. Where there has been an honest and substantial attempt to complete a contract a departure therefrom in unimportant matters will not preclude a recovery and the party will be allowed the amount of the contract, deducting therefrom a sufficient sum to fully compensate the defendant for the loss he sustains in the failure of the plaintiff to give strict performance.
    2. This right does not exist, however, in favor of a contractor who is guilty of fraud or gross negligence or who unjustifiably abandons the work before its completion, and the question of the good faith of the contractor and whether there was a material and substantial departure from the contract are questions for the jury.
    Argued Oct. 21, 1910.
    Appeal, No. 518, Oct. T., 1910, by defendant, from order of C. P. Phila, Go., March T., 1910, No. 3,219, making absolute rule for judgment for want of a sufficient affidavit of defense in case of A. C. Denahan & Company, Incorporated, v. Holmesburg Granite Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for work done.
    Rule for judgment for want of a sufficient affidavit of defense.

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

      R. Stuart Smith, with him Charles E. Morgan, for appellant.
    The plaintiff is not entitled to have the damages for want of entire performance deducted from his claim and then to recover the balance: Harris v. Ligget, 1 W. & S. 301; Martin v. Schoenberger, 8 W. & S. 367; Caughey v. Parker, 26 Pa. Superior Ct. 289.
    The doctrine-of substantial performance, however, is an equitable doctrine and was never intended to be applied except in cases where the party who had partially performed his undertaking had honestly and in good faith endeavored to perform fully, but had fallen short of complete performance in some respect that could be compensated in damages: Danville Bridge Co. v. Pomroy, 15 Pa. 151; Preston v. Finney, 2 W. & S. 53; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Snedaker v. Torpey, 41 Pa. Superior Ct. 312.

      J. H. Buckman, of Buckman & Buckman, for appellee,
    cited: Preston v. Finney, 2 W. & S. 53; Prescott v. Otterstatter, 79 Pa. 462; Pepper v. City, 114 Pa. 96; Holmes v. Oil Co., 138 Pa. 546.
    March 3, 1911:
   Opinion by

Hendekson, J.,

The plaintiff’s cause of action arose out of a contract made between it and the defendant for the erection of stonework on the building of a water company which was erecting a pumping station in Bucks county. The whole work had been let to a contractor for whom the defendant had undertaken to furnish and erect all the cut stone required for the building. The plaintiff had also agreed to work and furnish materials in connection with another part of the same building. The plaintiff entered into an agreement with the defendant to set up window and door sills, copings and other cut stonework which the latter had agreed with the general contractor to do and this action was brought to recover compensation for that work. The plaintiff’s statement alleges that the agreement with the defendant was that the plaintiff would put the stone in place, keep an account of the number of hours during which the workmen were employed and send the defendant a bill for the same; masons to be allowed fifty cents, riggers sixty cents, and laborers seventeen and one-half cents per hour, at which rate the defendant agreed to pay for the service. In reply to the plaintiff’s demand the defendant set forth in the affidavit of defense and the supplement thereto that the agreement with the plaintiff was that the latter would set all of the cut stone furnished by the defendant for the building and that the price agreed to be paid was made in consideration of the plaintiff’s promise to complete the work of setting the stone in place; that this arrangement was entered into with the plaintiff so that the defendant would be relieved from the necessity of employing his own masons, riggers and laborers and using his own machinery and appliances for the completion of the work, which must be taken from the defendant’s place of business at Holmesburg, Philadelphia, to the pumping station in Bucks county; that it was the intention of the plaintiff and defendant in entering into the agreement that all the cut stone should be set up by the plaintiff’s workmen and that such intention and agreement was expressed by both parties when the verbal arrangement was made between the president of the plaintiff company and the president of the defendant company. It is then averred that the plaintiff did not complete the work which he had undertaken but left unset the gable coping of one of the gables of the building and left the stone cut therefor lying on the ground; that the plaintiff’s workmen had set in place other masonry in front of the place in the building where the gable coping was required by the plans, thereby rendering it difficult, dangerous and expensive to the defendant to set this coping in place and that the expense to which the defendant was put in setting it was $34.21. It is further set forth that the defendant made demand on the plaintiff to complete the work and to set the coping and that the .plaintiff positively refused to do so. It is further stated that the plaintiff’s failure to set the coping was deliberate and intentional and that it was a substantial omission and that the contract would not have been entered into by the defendant if it had been known that the plaintiff would not complete the work, for the defendant was compelled to transfer men and machinery from its works at Holmesburg to the place in Bucks county where the water company was making the improvement. The affidavit sets up the defense of an entire contract and a willful failure on the part of the plaintiff to complete the job. The court below entered judgment for the amount of the claim less the expense to which .the defendant had been subjected in doing what the plaintiff had failed to do. We must assume in the present inquiry that the plaintiff agreed to complete the work"to which the contract applied; that all of the setting of stone involved in that part of the defendant’s work for the general contractor was taken off its hands by the plaintiff and was to be done by that company. If this was the relation of the parties under the contract and the fact of nonperformance is as stated by the defendant the plaintiff’s right to recover would depend on his ability to show that there was substantial performance. Their agreement is the law by which they are controlled and there could be no right of recovery on an express contract for the completion of a particular work until the plaintiff was prepared to show that the work was completed according to the contract or that there was such substantial performance as equitably entitled the plaintiff to recover for what was actually done. But the doctrine of substantial performance is in relief of the party applying it and must be shown to be applicable under the facts. It is a principle intended for the protection and relief of persons who honestly and in good faith endeavor to perform their contracts in all material and substantial particulars so that their right to be paid may not be forfeited where omissions or defects are unimportant or technical. It is incumbent on one who proposes to claim its protection to show that there was no substantial or willful departure from the agreement. Until this is done the question of substantial performance does not arise and the failure to perform the entire contract defeats the action. Where there has been an honest and substantial attempt to complete the contract a departure therefrom in unimportant matters will not preclude a recovery and the party will be allowed the amount of the contract deducting therefrom a sufficient sum to fully compensate the defendant for the loss he sustains in the failure of the plaintiff to give strict performance: Pepper v. Philadelphia, 114 Pa. 96; Gallagher v. Sharpless, 134 Pa. 134; Holmes v. Oil Co., 138 Pa. 546; Filbert v. Philadelphia, 181 Pa. 530. This right does not exist, however, in favor of a contractor who is guilty of fraud or gross negligence or who unjustifiably abandons the work before its completion and the question of the good faith of the contractor and whether there was a material and substantial departure from the contract are questions for the jury: Holmes v. Oil Co., 138 Pa. 546; Gallagher v. Sharpless, 134 Pa. 134; Snedaker v. Torpey, 41 Pa. Superior Ct. 312. In entering judgment for the plaintiff for a portion of the claim the court necessarily passed on the subject of the materiality of the departure from the contract as alleged by the defendant. But this was a question of fact to be determined by a jury. If the contract was not entire the plaintiff was entitled to the whole of his claim. If it was entire and was not completed it was for the plaintiff to claim the protection of the doctrine of substantial performance and seek to recover the contract price less the cost to the defendant of the completion of the work left unperformed by the plaintiff, and whether it is in a position to recover a part of the contract price must be determined after the evidence relating to the transaction is presented. We think, therefore, that the case should have gone to the jury under the averments in the two affidavits of defense and that the court could not determine as the question was then presented whether the plaintiff was entitled to recover anything. It may be that at a trial it would appear that the contract was not entire or that there was substantial or complete performance but we regard the affidavits filed as sufficient to raise the defense of a willful and intentional breach of an entire contract without legal justification. We conclude, therefore, that the plaintiff was not entitled to judgment for want of a sufficient affidavit of defense.

The judgment is reversed and the record remitted for further proceedings.


author: Rice, P. J.,

text:
    Ford v. Philadelphia, Appellant.

      Municipalities—Sidewalks—Light well—Contributory negligence— Question for fury.

    1. The reasonable care which the law exacts of all persons in whatever they do, involving the risk of injury, requires travelers on the footways of public streets to look where they are going, but this does not necessarily imply that the pedestrian must keep his eyes constantly and at every moment upon the pavement. If there is a conflict of testimony or, for any cause, there is a reasonable doubt as to the facts, or as to the inferences to be drawn from the facts established by the evidence, the contributory negligence of the pedestrian is a question for the jury.
    2. In an action by a woman against a city to recover damages for personal injuries caused by falling into a unguarded light well extending in a sidewalk from ten to eighteen inches from the house line, the case is for the jury, where the evidence shows that the accident occurred at night; that the sidewalk was eight feet wide, but that about one-third of the walking space was taken up by Belgian blocks piled on the curbed side; that at the time of the accident, and at the point where it occurred, a crowd of people were going from a neighboring church; and the plaintiff’s testimony is in effect that she did not think that she could have seen the hole even if she had looked down.
    3. In such a case the court could not instruct the jury that the light well in question, unguarded as it was, was a lawful construction, and that that city was not liable for permitting it to be maintained in the highway.
    Argued Oct. 21, 1910.
    Appeal, No. 159, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 3,477, on verdict for plaintiff in case of Alfred P. Ford and Matilda F. Ford, his wife, v. City of Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    The circumstances of the accident are stated in the opinion of the Superior Court.
    Verdict and judgment for Alfred P. Ford for $150 and for Matilda F. Ford for $350. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Charles E. Bartlett, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellant.
    The case is ruled by King v. Thompson, 87 Pa. 365, and by Stackhouse v. Vendig, 166 Pa. 582: Lumis v. Traction Co., 181 Pa. 268; Canavan v. Oil City, 183 Pa. 611; Stewart v. Jermon, 5 Pa. Superior Ct. 609; Mason v. Phila., 205 Pa. 177; Com. v. Kembel, 30 Pa. Superior Ct. 199; McIlhenney v. Phila., 214 Pa. 44; Dwyer v. Boro., 216 Pa. 22; Lautenbacher v. Phila., 217 Pa. 318; Tolan v. Phila., 35 Pa. Superior Ct. 311; Lerner v. Phila., 221 Pa. 294.

      Henry J. Scott, for appellee.
    The case was for the jury: Feather v. Reading, 155 Pa. 187; Shaffer v. Harmony Borough, 204 Pa. 339; Jordan v. Philadelphia, 29 Pa. Superior Ct. 502; Butcher v. Philadelphia, 202 Pa. 1; McHugh v. Kerr, 208 Pa. 225; Bruch v. Philadelphia, 181 Pa. 588.
    March 3, 1911:
   Opinion by

Rice, P. J.,

The plaintiff was walking on the east side of Twenty-second street, toward Delancey street, and had almost passed a bay window projecting three feet from the house line on Twenty-second street, when she turned and went back to get her daughter, who had lingered behind. Having repassed the window, she turned in close to the house wall in order to avoid a crowd of people going from church, and, after proceeding a foot or two, stepped into the light well of a basement window, fell and was injured. According to the varying testimony of the witnesses, this light well extended from two and one half to three feet along the house line, from ten to eighteen inches out into the sidewalk, and was from one to three feet deep. It was not guarded by a grating or otherwise. The sidewalk was eight feet wide, but about one-third of the walking space was taken up by Belgian blocks piled on the curb side. The time of the occurrence was about 10:00 p. m. There was an electric street light at the corner thirty feet distant, but, according to the testimony adduced by the plaintiff, which is all we need notice in determining the questions raised by the assignments of error, there was no light either in the basement window or in the bay window or elsewhere in the house front, the place where she was walking was a dark place anyhow, and was made more so by the pile of Belgian blocks and the crowd of people passing. As to her knowledge of the light-well, she testified that she had walked along the street many times and may have seen it, but she took no particular notice of it. She testified further that she looked right ahead to see where she was going, and, being asked whether if she had looked down she could have seen this place, she answered that she did not think she could.

In Robb v. Connellsville Borough, 137 Pa. 42, a leading case, it is said that the reasonable care which the law exacts of all persons, in whatever they do involving the risk of injury, requires travelers on the footways of public streets to look where they are going. This is imperative; but, as was said in that case, as well as others since, this does not necessarily imply that the pedestrian must keep his eyes constantly and at every moment upon the pavement. The thought is clearly expressed in the late case of Lerner v. Philadelphia, 221 Pa. 294: "One is not required in walking along a traveled highway, to keep his eyes fastened upon the ground continually to discover points of possible danger; nor is it necessary that he should in order to avoid exposed pitfalls lying directly in the path before him; but the law does require that he be observant of where and how he is going so as to avoid dangers which ordinary prudence would disclose.” We recognize the principle, that it is in vain for one to say that he looked and did not see, when, if he had looked, he must have seen, and that in such a case it is not the duty of the court to submit to the jury the question whether he looked and failed to see the danger. But, as has been repeatedly dedared, this rule is only applicable to clear cases, to those which practically admit of only one view. Wherever there is a conflict of testimony or, for any cause, there is a reasonable doubt as to the facts or as to the inferences to be drawn from the facts established by the evidence, contributory negligence is a question for the jury. This distinguishing principle has been applied in a multitude of cases in which the general principle enunciated in Robb v. Connellsville Borough 137 Pa. 42 has been recognized. We need only cite as illustrative cases: Butcher v. Phila., 202 Pa. 1; McHugh v. Kerr, 208 Pa. 225; Graham v. Phila., 19 Pa. Superior Ct. 292; Brown v. Milligan, 33 Pa. Superior Ct. 244. This is such a case. Whether or not the plaintiff knew or ought to have known beforehand of the existence of the hole, and, if not, whether the conditions were such that ordinary prudence required her to look down to the pavement at her feet, and, if she had done so, whether she would have seen the dangerous condition, were questions for the jury. But it is urged that she was guilty of an act contrary to ordinary prudence in walking so near the house line, and this remark of Paxson, J., in King v. Thompson, 87 Pa. 365, is cited in support of this contention: “No prudent person walks within sixteen inches of the houses when passing over the sidewalks of a city.” This may be true ordinarily, and particularly under such circumstances as were presented in that case. But here one-third of the pavement was shut off from use by pedestrians by the pile of Belgian blocks, and the remaining space was taken up by the crowd of people going from church. Certainly it cannot be declared as a matter of law that the plaintiff was guilty of contributory negligence in not waiting for the street to become clear before going for her child; and if necessity or great convenience impelled her to go around the crowd, instead of pushing her way through it, it is not at all clear that she did not pursue the more prudent course. Although the place where she attempted to walk was close to the house line, yet it was part of the highway set apart for use of pedestrians, and we cannot regard the case cited as establishing an inexorable rule, applicable without regard to the circumstances, that one who uses that part of the pavement is guilty of negligence. The remark of Justice Paxson must be read in connection with the facts of that case, which were quite different from those, presented in the case at bar.

It is argued that this light well was a lawful construction and therefore the court should have declared, as a matter of law, that the city was not liable for permitting it to be maintained in the highway. Counsel cite King v. Thompson, as ruling the question. There the court was asked to affirm a point which read: “If the jury find that the area in front of the cellar window was such as was usual and customary in the city of Allegheny for lighting and ventilating cellars, and reasonably necessary for those purposes, then the defendant is not guilty of negligence or nuisance in maintaining it.” It was held that the court ought to have affirmed the point. The effect of doing so would have been to submit to the jury the questions of fact; first, whether the opening was such as was usual and customary in that city; and, second, whether it was reasonably necessary for the purpose of lighting and ventilating the defendant’s cellar. This fell far short of deciding that if there be evidence of those facts the question should be withdrawn from the jury and decided by the court as a matter of law; much less that even though there be no evidence of these facts it is still the duty of the court to declare that such an opening in the highway is lawful. In determining whether a conclusion of law in any adjudicated case is a precedent in a subsequent one, the value of the first, usually, is measured by its similarity or dissimilarity to the second in its controlling facts: Yoders v. Amwell Twp., 172 Pa. 447. Keeping this familiar principle in mind, it needs no argument to show that King v. Thompson 87 Pa. 365, would not have sustained binding directions in favor of the defendant. Reliance is placed upon secs. 11, 12, and 13 of an ordinance of the city of Philadelphia, adopted in September, 1864. Section 11 of that ordinance relates wholly to cellar doors, porches and steps, and has no application to such an opening as is disclosed by the evidence in this case. Section 12 is equally inapplicable. Section 13 declares that it shall be a nuisance “to excavate or construct hereafter any area or other encroachment on any footway of the city, except as herein allowed, providing that this section shall not apply to the planting of trees or enclosing trees in boxes or stepping-stones or hitching-posts.” We fail to see how this ordinance by its terms expressly permits such an opening in the highway as is described here. Without going into an elaborate discussion of the lawfulness of making such an opening in the highway for the purposes of light and ventilation, certainly it cannot be contended that this can be done without guarding it in any way. It does not appear from the testimony in the case that such openings are customary and usual in the city of Philadelphia, and it is apparent, without argument, that, if they are, it is perfectly feasible to guard them by grating or otherwise in such a way that pedestrians will not inadvertently fall into them and be injured. In no view of the case would the court have been warranted in instructing the jury that the opening was a lawful and nonnegligent encroachment upon the highway.

The judgment is affirmed.


text:
    Haller, Appellant, v. Haller.

      Beneficial associations — Beneficiaries—Wife —Gift of certificate — Change of beneficiary.

    1. Where the by-laws of a beneficial association give to a member an unqualified right to change the name of a beneficiary, the wife of a member who had originally been named beneficiary, and to whom the member gave his membership certificate as a gift, cannot claim the death benefits as against the stepmother of the member, whose name had been substituted as beneficiary, where at the time the membership certificate was given to the wife, no consideration had passed from her to him, and where there was no contractual relation between him and her, nor between her and the relief department.
    2. Where, in such a case, the trial judge submits to the jury the question whether there had been in fact a gift to the wife, and the jury decides that question adversely to the wife, the jury cannot recommend that the benefit be equally divided between the wife and the stepmother.
    3. Where on an interpleader to determine whether the wife of a member of a beneficial association who had been originally named as beneficiary, and the member’s stepmother, whose name had been subsequently substituted as beneficiary, was entitled to the benefits, the wife avers that substitution had been procured through the member’s mental incompetency and through undue influence exercised upon him, and there is no evidence whatever to support these claims, the trial judge cannot be convicted of error in refusing to submit them to the jury.

      Evidence—Testimony of plaintiff—Uncontradicted testimony—Province of court and jury.

    4. In an action of assumpsit the fact that the only testimony in support of plaintiff’s claim is his own testimony and that this is uncontradicted, will not justify the trial judge in taking the'ease away from the jury. In such a case it is for the jury to estimate the value of the evidence of the witness, and determine its credibility.
    Argued Oct. 24, 1910.
    Appeal, No. 212, Oct. T., 1909, by plaintiff, from judgment of C. P. Blair Co., June T., 1908, No. 128, on verdict for defendant in case of Hattie Haller v. Mary E. Haller.
    Before Rice, P. J., Henderson, Morrison Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Feigned issue in an interpleader to determine title to death benefits. Before Shull, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    The verdict and the judgment thereon were in the following form:
    June 12, 1909—A jury of the county being called, do say they find (June 12, 1909) that we do not consider this relief certificate a gift to Hattie Haller, but we recommend that the death benefit of Frederick J. Haller be equally divided between the plaintiff and the defendant.

      Now, August 12, 1909—Judgment is entered in the above stated action in favor of Mrs. Mary E. Haller and against the plaintiff, Mrs. Hattie Haller, as per decree of court this day filed, in the sum of $776.10.

      Errors assigned were (1-31) various rulings and instructions.

      Thomas H. Greevy, with him A. W. Porter, for appellant.

      J. F. Sullivan, for appellee.
    March 3, 1911:
   Opinion by

Henderson, J.,

This case arises on a feigned issue formed in an inter-pleader proceeding to determine the title to a fund paid into court by the Penna. R. R. Voluntary Relief Department, after the death of Frederick J. Haller who was a member of that department at the time of his death. The plaintiff was the wife of the member and the defendant was his stepmother. Haller joined the relief department on March 2, 1901, and in his-application for membership appointed his wife the beneficiary in the case of his death. On January 17, 1908, he substituted Mary E. Haller, his stepmother, as beneficiary. This was done under the authority of paragraph 28 of the rules or by-laws of the organization which provides that an applicant may in his principal application or subsequently in the prescribed form designate a beneficiary or beneficiaries who shall upon the approval of the designation by the superintendent of the relief department be entitled to receive his death benefit. The plaintiff claimed the fund on the allegation that when her husband became a member of the association he handed to her the book of rules in which was pasted a certificate of his membership in the association and at the same time said to her: “This is a gift for you. Never part with it or give it to anyone else. That’s yours and you hold it.” The defendant’s claim is based on the fact that she was the last nominated beneficiary and therefore entitled to the fund under the rules of the department. The issue as submitted to the jury by the court was whether a gift was made by Haller to his wife of the benefit as claimed by the plaintiff. At the trial the plaintiff contended that the designation of the defendant as a beneficiary was invalid, (a) because Haller was mentally incompetent to direct a change of the beneficiary, and (b) because the change was brought about by undue influence exercised by the defendant; but the court refused to submit the questions thus raised to the jury for the reason that there was no evidence tending to support the appellant’s position and this action constitutes one of the principal grounds of complaint. We have therefore examined the evidence with care for the purpose of ascertaining whether any part of it supports the appellant’s position, but we do not find any testimony which would at all justify or sustain a verdict in favor of the appellant’s contention on these points. Testimony was offered to show that in the latter part of December preceding the time when the substitution of a beneficiary was made Haller was grossly intoxicated; that he was so for several days and that he had been a man of intemperate habits for years. The plaintiff and another witness testified to this effect, but their evidence did not relate to a date later than December 27, 1908, at about which time the plaintiff left her husband and he was removed to the home of his father and stepmother and all of the evidence relating to his mental condition between the last-named date and the time when the substitution was made is to the effect that his mind was not only clear and normal but that he exhibited no indication of the use of alcoholic drinks and that he had none while at his father’s house. He had been afflicted with tuberculosis of the lungs for a long time and died of that disease and while he was weak in body during the last weeks of his life there is not any evidence that at the time the new beneficiary was designated he was not entirely capable of understanding the nature of the transaction and conscious of its object and effect. The physician who represented the relief department and under whose supervision the substitution was made testified very positively as to his capacity to understand the nature of the business and other witnesses gave testimony to like effect. Both the presumption of sanity and the testimony in the case excluded any conclusion of a want of mental capacity to transact the business. It is sufficient to say on the subject of undue influence that there is no evidence whatever that points in that direction. The father of the young man took him to his home because his wife had separated from him and there was no one in the apartments occupied by them to look after him. Disease had so far enfeebled him that he was not able to take care of himself and it became necessary that provision be made for him. His stepmother assisted in caring for him at her home but that she used any influence to induce him to substitute her name as beneficiary or that she procured any other person to suggest the matter to her stepson is not hinted at in the testimony and is positively denied by the defendant. With these questions out of the way the matter for consideration in the view which the court took of the case was the claim by the plaintiff that her husband made a gift to her of the benefit; and this question the court submitted to the jury in a clear charge. The action of the court in leaving it to the jury to determine whether the benefit was given to the appellant is assigned for error and it is contended that as the only testimony on that subject was that of the plaintiff and her testimony was uncontradicted the court should have decided the matter, but this contention is not in harmony with the law. It is for the jury to estimate the value of the evidence of a witness and determine its credibility and the jurors are not compelled to rely on his statement because he is uncontradicted and not impeached by other evidence. His manner while testifying or the improbability of his story or his motive or bias may discredit him. The authorities are numerous on this subject but we need only to refer to Trexler v. Africa, 33 Pa. Superior Ct. 395, and Lautner v. Kann, 184 Pa. 334. The action of the court in molding the verdict to conform to the issue was in accord with the doctrine of Fisher v. Kean, 1 Watts, 259; Keen v. Hopkins, 48 Pa. 445; Cohn v. Scheuer, 115 Pa. 178; Clouser v. Patterson, 122 Pa. 372, and other cases. The recommendation of the jury that the benefit be equally divided between the plaintiff and defendant was not pertinent to the issue as submitted by the court and was properly disregarded. Having found that there was not a gift of the relief certificate to the plaintiff the jury had no further authority over the subject. When the jury found against the plaintiff on the fact on which she relied, her case failed; for under the rules of the relief department there was a clear right in the member to change beneficiaries.

But there is a radical objection to the plaintiff’s claim irrespective of the verdict. What she says her husband gave her was merely the evidence which he held that he was a member of the association. No consideration passed from her to him and there was no contractual relation between him and her nor between her and the relief department. The possession of the book of rules gave her no right which she would not have had without it. If no change of beneficiary had been made she would have been entitled to the fund on the death of her husband but this was not because of any consideration moving from her but because of the nomination made by her husband when he became a member of the department. His wife did not by the fact of such designation acquire a vested absolute property in the benefit. During the lifetime of a member of a beneficial association the beneficiary named by him is a mere volunteer with an expectancy contingent on the death of the member and subject to the possibility that another beneficiary may be named where such change is permitted by the laws of the society. His right to the proceeds of the certificate or policy does not become absolute until the death of the member: Beatty’s App., 122 Pa. 428; Brown v. A. O. U. W., 208 Pa. 101; Noble v. Police Beneficiary Assn., 224 Pa. 298. The right of a member to change the beneficiary in such an organization is unqualified and neither the assent of the beneficiary nor the surrender of the certificate is necessary unless required by the rules of the order: Beatty’s App., 122 Pa. 428; Hamilton v. Arcanum, 189 Pa. 273; Fisk v. Equitable Aid Union, 20 W. N. C. 290; Sabin v. Phinney, 134 N. Y. 423; Spengler v. Spengler, 65 N. J. Eq. 176. What the appellant calls a gift did not change her relation to the benefit fund nor invest her with a right theretofore existing in her husband so that he could not subsequently name his stepmother as the person to receive the benefit: Heasley v. Heasley, 191 Pa. 539. The learned counsel for the appellant considers Penna. R. R. Co. v. Wolfe, 203 Pa. 269, a controlling case to which may be added King v. Supreme Council, Catholic Mut. Ben. Assn., 216 Pa. 553, but each of these cases turned on the fact that the claimant’s title was acquired by contract and for a valuable consideration. In the first case the member of the relief department having previously named his sister as beneficiary entered into an agreement of marriage and one of the considerations on which the woman promised to become his wife was that after their marriage he was to have her made the beneficiary and that thereafter and partly on the inducement and consideration of this agreement the claimant married him. That case decided that the moment the marriage contract was complete the wife had an equitable claim to the certificate or to the benefit it represented; that she had a vested right in the benefit after marriage, not a right dependent on the will or whim of her husband, but one no longer in his power, as between him and her, for him to confer or withhold. The wife could not rescind the marriage contract; neither could the husband cancel the obligation he had entered into to secure to her the benefit. It was, therefore, held that equity would make the substitution of the wife as beneficiary which the husband ought to have made after his marriage; but it will be observed that this case has its whole foundation on the fact that there was a contract for a valuable consideration which had been performed on the part of the wife and that the husband in entering into the marriage waived the right of nomination which he theretofore had, because of his antenuptial agreement to make the substitution. The second case is of like import. There the husband, having become a member of the association, handed over his certificate to his wife who was named therein as the beneficiary, telling her at the same time that it was hers and that he would never change it unless to make her children the beneficiaries therein; and the wife relying on this assurance paid out of her separate estate the assessments and charges on the certificate up to the time when her husband, without her knowledge or consent, surrendered it to the association for a new one in which his brother was substituted as the beneficiary. The conclusion of the court in that case was put expressly on the ground that the wife was induced to keep alive the insurance by paying the assessments out of her separate estate because of the assurance given by the husband that she was to remain the beneficiary. The husband having induced the wife to expend her money on the insurance was held, in harmony with equitable principles, to have waived the right to substitute another beneficiary to her exclusion. These cases do not sustain the appellant’s position, for she does not claim to have done anything or to have omitted to do anything by reason of what was said by her husband at the time he handed to her the book of rules.

We need not consider the assignments, thirty in number, in detail. Many of them relate to the trial and others to the opinion of the learned trial judge in entering judgment for the defendant. The view we have taken is a determination that on the case as presented by the plaintiff the defendant was entitled to a verdict.

The judgment is affirmed.


author: Orlady, J.,

text:
    Tozer v. Altoona & Logan Valley Electric Railway Company, Appellant.

      Negligence—Street railways—Death—Contributory negligence—“ Stop, looh and listen.”
    1. Where a street railway company operates a street car on the main street of a borough at a speed of from fifteen to twenty miles an hour, with no headlight, and no gong rung at an intersecting street, and a pedestrian is killed, there is sufficient evidence of the company’s negligence to submit to the jury; but if it appears from the uncontra-r dieted testimony that the deceased had an unobstructed view along the track for a distance of from 600 to 800 feet in the direction from which the car came, and that if he had looked he could have seen the car in time to save himself, no recovery can be had for his death.
    2. While the rule to stop, look and listen, applicable to the crossing of steam roads applies only in part to the crossing of street railways, there is always the duty to look for an approaching car, and if the street is obstructed, to listen and in some situations to stop. It is vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving car, whether it be a steam locomotive or an electric car.
    Argued Oct. 24, 1910.
    Appeal, No. 132, Oct. T., 1910, by defendant, from judgment of C. P. Blair Co., March Term, 1910, No. 356, on verdict for plaintiff in case of Margaret Tozer v. Altoona & Logan Valley Electric Railway Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son. Before Baldridge, P. J.
    The facts relating to the accident are set forth in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $802.86. Defendant appealed.

      Errors assigned were various rulings and instructions.

      Thos. H. Greevy, with him E. G. Brotherlin, for appellant.
    Stepping in front of a moving car plainly visible rebuts presumption of compliance with legal duty and convicts party of contributory negligence: Trout v. Electric Ry. Co., 13 Pa. Superior Ct. 17; McCartney v. Traction Co., 27 Pa. Superior Ct. 222; Carroll v. R. R. Co., 12 W. N. C. 348; Dix v. Ry. Co., 15 Pa. Superior Ct. 350; Watkins v. Traction Co., 194 Pa. 564; Yevsack v. R. R. Co., 221 Pa. 493; Sullivan v. Traction Co., 198 Pa. 187; McCauley v. Traction Co., 13 Pa. Superior Ct. 354; Hamilton v. R. R. Co. of New Jersey, 227 Pa. 137.

      A. V. Dively, of Dively & Dively, for appellee.
    The question of the decedent’s contributory negligence was for the jury: Cromley v. R. R. Co., 208 Pa. 445; McNeal v. Ry. Co., 131 Pa. 184; Muckinhaupt v. R. R. Co., 196 Pa. 213; Doud v. Del., etc., R. R. Co., 203 Pa. 227; Hall v. Ry. Co., 13 Utah, 243 (44 Pac. Repr. 1046); Thompson v. Rapid Transit Co., 16 Utah, 281 (52 Pac. Repr. 92); Marden v. Ry. Co., 100 Maine, 41 (60 Atl. Repr. 630); Benjamin v. Ry. Co., 160 Mass. 3 (35 N. E. Repr. 95).
    March 3, 1911:
   Opinion by

Orlady, J.,

A son of the plaintiff was killed by a car of the defendant company, while he was crossing its tracks on a main street in the borough of Bellwood. A verdict was rendered in favor of the plaintiff and the court below refused to grant a new trial, or enter a judgment non obstante veredicto, hence this appeal by the defendant.

The validity of this verdict is to be determined by the application of well defined and frequently declared rules of the law to certain facts which are established by the testimony of the witnesses called by the plaintiff. The accident occurred about 11:30 p. m. while the deceased was crossing the car tracks, which were laid on a wide public street of a borough at a point where it intersected another street. Three of his companions had preceded him in safety. Immediately over the crossing there was suspended an electric light, which cast a reasonably good light of a radius of sixty to seventy feet. The car track approach to this crossing was in a straight line, and the view along it, in the direction from which the car came, was unobstructed for a distance of from 600 to 800 feet. It was alleged by the plaintiff that the car was running at a speed of from fifteen to twenty miles an hour, and that the headlight on the car was not lighted nor the gong rung. The overwhelming weight of the evidence shows that the lights inside the car were burning—else it could not be run.

The evidence on this branch of the case was amply sufficient to send the case to the jury, in support of the allegation of the defendant’s negligence, but the evidence of the deceased’s contributory negligence is so clearly established that the plaintiff is not entitled to recover.

The night was dark and foggy; these conditions imposed on him the duty of being proportionately careful before he entered upon the car track. Samuel Sheets, who had crossed over in safety immediately before the deceased started to do so, a witness for plaintiff, testified:

"Q. Wouldn’t that car even without a headlight be visible at least 250 feet up the street through the glare of this electric light? A. I suppose it would if you were looking in that direction, but a man not thinking of the car,- or anything like that, would not be looking for a car. Q. Were you looking for a car with no headlight? A. No, sir, I wasn’t, but it was plainly to be seen. Q. If he (Tozer) had his normal sight, and had looked, couldn’t he have seen the car up the street a distance of at least 250 feet, admitting that there was no headlight on it? A. If he had been looking that way, if he would have been going that way.”

Leroy McMullen, another of the party, testified: "Well, I think we stopped right on the corner, it was right on the Henderson corner, we may have been down on Boyles street a foot or two. Q. Did you see the car approaching? A. Yes, sir, I believe I noticed it coming; I didn’t pay any attention to it. Q. How far up that street could that car be seen? A. Well, if the street had been lit up the whole way up, I suppose you could have seen the car 400 feet maybe. Q. The arc light was lit there? A. There was a light on the crossing. Q. How far above the crossing did the light reflect? A. Well, I suppose it lit the crossing. Q. It lit both crossings? A. I would call the crossing where one street crosses the other. Q. The first that you saw the car was when it was above the crossing in the direction of Altoona? A. Yes, sir. Q. If Mr. Tozer was coming across that crossing, isn’t it likely that you would have seen him, because you say, you saw the car above the upper crossing? A. I noticed the car coming down. Q. Wasn’t your back to Mr. Tozer? A. Yes it was; it must have been, you know the streets are wide there, and I could see the car coming, and still not see Mr. Tozer, over here on the crossing. Q. Was the car lighted up? A. There was light inside of the car. Q. The usual lights? A. Yes.”

And Ralph Fagley, another one of the party who had just crossed the track, testified: ‘‘ Q. Where were you standing when the car passed? A. I was standing with my back to the car, and just about the time the car was at the other corner, I turned around, and was looking at the car. Q. That was about fifty feet distant? A. Yes, sir. Q. Was the car lighted up? A. Yes, I didn’t notice whether there was a headlight on the car, or whether there was not, I know the lights inside the car were lit, because I looked to see who was in the car. Q. How far could you see it? A. I didn’t see the car until it was there at the street, I would judge that a man that had a good eye could see it quite a distance. Q. At any rate, if you look up the street, you could see it about 200 feet? A. Yes, I guess you could see it that far all right. Q. If you were standing in the middle of the street at Boyles street (where the accident happened), you could see a car approaching a distance of about 500 feet? A. Yes, you could see it near about that I guess, if you were standing there looking for it.”

The above facts were elicited from the friends and associates of the decedent who were waiting for him on the opposite side of the car track. There was no business activity on the street to divert his attention and no intervening objects to obstruct his view. The sound of the rapidly moving car, independent of gong or headlight would, reasonably and naturally have given some notice of its approach. Measured by the faculties of his associates had he looked or listened he would have seen or heard the car in ample time to avoid the accident.

Eliminating the direct and positive testimony of the defendant’s witnesses that all the lights were properly lighted, that the gong was sounded, that the decedent darted right out from the side on to the track, and that the car was not going more than at a rate of eight miles an hour, yet by plaintiff’s own showing, she is not entitled to recover. A person who walks in front of a moving car, which he sees or could have seen by the exercise of the reasonable care, which the law requires, will be conclusively presumed to have been negligent.

While the rule to stop, look and listen, applicable to the crossing of steam roads applies only in part to the crossing of street railways, there is always the duty to look for an approaching car, and if the street is obstructed, to listen and in some situations to stop. It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving car, whether it be a steam locomotive or an electric street car. It was the imperative duty of the deceased to follow these rules, and he was evidently lulled into a false sense of security, or was for the moment indifferent to his danger, and unwittingly stepped on the car track without exercising the required precautions, or took his chance of passing the track before the car would reach him.

No error in a close calculation of a chance can relieve from the charge of contributory negligence. He must be held to have seen what was manifestly obvious: Trout v. Electric Ry. Co., 13 Pa. Superior Ct. 17; Ormslaer v. Traction Co., 168 Pa. 519; Potter v. Scranton Railway Co., 19 Pa. Superior Ct. 444; McCartney v. Union Traction Co., 27 Pa. Superior Ct. 222; Sullivan v. Traction Co., 198 Pa. 187; Yevsack v. Lackawanna & Wyo. Val. R. Co., 221 Pa. 493; Hamilton v. C. R. R. R. of New Jersey, 227 Pa. 137.

The judgment is reversed, and judgment is now entered in favor of the defendant.


author: Head, J.,

text:
    Snow v. Western New York & Pennsylvania Traction Company, Appellant.

      Negligence—Street railways—Collision—Wagon and car—Bridge—■ Evidence—Contributory negligence.

    In an action against a street railway company to recover damages for personal injuries it appeared that the plaintiff was injured in a collision between a carriage which he was driving and a street car on a bridge. The tracks were laid on the middle of the bridge, and owing to the fact that the bridge was only sixteen feet wide an ordinary vehicle could not pass a ear on it. The accident happened near midnight on a dark night. The plaintiff had not driven over the bridge after the tracks had been laid upon it, although he had done so before. He testified that he was looking straight ahead with his eyes on his team and the street in front, that he observed no car before he entered the bridge, but that as soon as he got his team straightened out on the bridge a car flashed into view ahead of him, and before it could be stopped ran him down. The car was lighted in the usual way, and was going, according to the weight of the testimony, at a high rate of speed. There was evidence that the bridge was only half the width of the street, and that as the plaintiff approached it, keeping on his own side of the road, his view was somewhat interfered with by the uprights along the side of the bridge. It also appeared that at the end of the bridge in the direction from which the car came, a large electric street light hung just over the middle of the street. Held, that the question of the plaintiff’s contributory negligence was for the jury.
    Argued Oct. 25, 1910.
    Appeal, No. 43, Oct. T., 1910, by defendant, from judgment of C. P. McKean Co., Dec. Term, 1908, No. 18, on verdict for plaintiff in case of George W. Snow v. Western New York & Pennsylvania Traction Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial it appeared that plaintiff was injured on June 10, 1907, while engaged in driving a large carriage over a bridge which crossed Kendall creek in East Bradford.
    The facts relating to the accident are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $450. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. Burdick, with him B. B. Stone, for appellant,
    cited: Potter v. Scranton Ry. Co., 19 Pa. Superior Ct. 444; McCracken v. Traction Co., 201 Pa. 378; McCartney v. Traction Co., 27 Pa. Superior Ct. 222.

      Mullin & Mullin, for appellee,
    cited: Evers v. Philadelphia Traction Co., 176 Pa. 376; Hocheiser v. Rys. Co., 226 Pa. 316; Gress v. Ry. Co., 14 Pa. Superior Ct. 87; Talley v. Chester Traction Co., 227 Pa. 393; Greeley v. Ry. Co., 153 Pa. 218.
    March 3, 1911:
   Opinion by

Head, J.,

The collision in which the plaintiff was injured occurred, near midnight of a dark night, on a bridge which carried one of the streets of East Bradford across a stream. The bridge was only sixteen feet wide, less than one-half the width of the street at either end of it. The length of the bridge was about sixty-seven feet. For several hundred feet from either end of the bridge the street was sufficiently straight that in the daytime a moving street car could be seen over that entire distance. Owing to the narrowness of the bridge and the fact that the car track was laid in the middle of it, an ordinary vehicle could not pass a car on the bridge.

These physical conditions would of course have a tendency to cause some congestion of traffic at that point. The franchise of the defendant company did not confer upon it any right to the exclusive use of the street. That its right to move its cars on the portion of the street covered by its tracks was superior to the right of other vehicles to occupy that portion of the street cannot be denied. But where from physical causes, like those described, some interruption of traffic and delay were likely to occur at that point, the defendant company would be obliged to bear its share of that burden, and, under certain conditions, afford the opportunity to other traffic to go safely across the bridge. From these considerations it would seem to follow that it was the duty of the motorman driving the street car to approach that point at moderate sp’eed and with his car under control. On the other hand, it would be the duty of the plaintiff, driving his vehicle, to approach with like caution and with fair regard to the conceded superior right of the defendant on its own tracks.

The plaintiff was driving a large carriage containing about a half a dozen persons. He testifies that he had driven over this bridge before cars were operated over it, but not since the track had been laid until the night of the accident. He declares that he was looking straight ahead of him, with his eyes on his team and the street in front; that he observed no car before he entered on the bridge, but that as soon as he got his team straightened out on the bridge a car flashed into view ahead of him, and before it could be stopped ran him down. The evidence shows that the car was lighted in the usual way, and there was testimony from which a jury could fairly find that it was going at a high rate of speed.

It is a matter of common observation and experience that an ordinary person may be greatly mistaken as to the distance between him and a car moving directly towards him. This difficulty is greatly increased in the nighttime when many objects are buried in shadow and prevent accurate measurement or comparison.

It could not be said as matter of law that even in the daytime the driver of a vehicle could not safely enter upon the bridge in question because a street car was visible somewhere in the distance. To so hold might result in practically excluding all traffic but the cars from that street. Everything would depend on the proximity of the car and the rate of speed at which it was traveling. As we have already said, the difficulty of reaching a correct conclusion as to these matters is increased by darkness. Moreover, there is evidence from which the jury could find that when the plaintiff was about to enter on the bridge, keeping his own side of the road, his view was somewhat interfered with at least by the uprights or supports along that side of the bridge. There is also evidence that at the north end of the bridge, in the direction from which the car was coming, a large street electric light hung just over the middle of the street. Whilst of course this would make clearly visible approaching objects, within the circle reached by that light, it is not so clear that the eyes of every traveler would be affected in the same way as to objects beyond that circle. If the string of lights along the street, as it stretched ahead of the plaintiff, were of the same character and located relatively as the one at the end of the bridge, it is not easy to say that a man of ordinary prudence and care, in such an inspection of the street ahead as the proper care of his team would enable him to make, might not mistake the headlight of an approaching car for one of the street lights. It is not for us to say that these are the correct inferences to be drawn from the facts in evidence, but it would be the province of a jury to determine whether they are or not.

These considerations convince us that the case was in the class of Jones Bros. v. Greensburg, etc. Street Ry. Co., 9 Pa. Superior Ct. 65, and the cases there cited, and as a consequence the learned trial judge was right in submitting the case to the jury.

There is no complaint of the manner in which the case was submitted, nor of any ruling of the court in matters of evidence. The sole contention of the appellant is that the learned trial judge should have declared as matter of law that the plaintiff was guilty of contributory negligence and therefore directed a verdict for the defendant. As we are unable to sustain this contention, the assignments of error must be dismissed.

Judgment affirmed.


text:
    Hollidaysburg Male and Female Seminary Company v. Gray, Appellant.

      Appeals—Harmless error—Evidence—Admission of testimony previously excluded.

    1. A judgment will not be reversed for the exclusion of testimony, where the appellant both before and after the ruling was permitted to give substantially the evidence covered by the rejected offer.

      Landlord and tenant—Covenants for repairs—Heating plant—Evidence —Papering—Profits—Speculative damages.

    2. Where a landlord has covenanted to pay for repairs to furnace and heating plant, the tenant, in an action for rent, may show as a defense that the furnace broke completely down in the winter; that the landlord upon being notified, promised to make the necessary repairs, but failed to make them; and that in consequence the building was without heat for one month in very cold weather, except for oil and gas stoves put in by the tenant, which were inadequate.
    3. Where a landlord agrees to “ do what papering is necessary,” in a large building used as a school, which contained many more rooms than were needed for the accommodation of the pupils in attendance, the landlord will not be required to paper every room that was previously unpapered.
    4. In an action to recover rent for a large school building, where the tenant sets up as a defense that her prospects of running the school were ruined by the failure of the landlord to perform his covenants for repairs, the trial court commits no error in rejecting offers of evidence by defendant as to the amount of money which she invested in furniture, pianos and other articles for the school building. Such evidence is too speculative as a basis for measuring damages.

      5. Where a lease contains no specific covenant on the part of the landlord to repair the roof of the building leased, the landlord will not be liable for such repairs.
    Argued Oct. 26, 1910.
    Appeal, No. 123, Oct. T., 1910, by defendant, from judgment of C. P. Blair Co., March Term, 1910, No. 305, on verdict for plaintiff in case of Hollidaysburg Male and Female Seminary Company v. Charlotte C. Gray.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for rent. Before Shull, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $308.75. Defendant appealed.

      Errors assigned were (1-15) various rulings and instructions which sufficiently appear by the opinion of the Superior Court.

      W. C. Fletcher, with him Robert W. Smith, for appellant.

      W. I. Woodcoh and O. H. Hewit, with them B. F. Warfel, for appellee,
    cited: Moore v. Weber, 71 Pa. 429; Wayne v. Lapp, 180 Pa. 278.
    March 3, 1911:
   Opinion by

Rice, P. J.,

The lease involved in this action was for the term of three years from July 18, 1906, at a yearly rent of $1,445, payable in sums of $361.25 at the expiration of each quarter. The defendant took possession of the premises, a large seminary building, and paid $361.25 rent on each of the following dates: October 18, 1906, January 19, 1907, September 7, 1907, January 18, 1908. This action was brought in May, 1908, and the arrears of rent then due by the terms of the lease amounted to $1,083.75. In defense to the action, the defendant set up a claim for damages arising out of the alleged failure of the plaintiff to repair the building according to its contract. This claim exceeded the arrears of rent. But the verdict as recorded was in favor of the plaintiff for $308.75, the jury thus sustaining the defendant’s claim to the extent of $675. From the judgment on the, verdict the defendant took this appeal and filed fourteen assignments of error. The fourteenth is to a portion of the charge, and the other thirteen are to the rejection of offers of evidence. It will, aid to a correct understanding of the questions sought to be raised by the assignments, to quote at length the provision of the lease as to repairs, and, also, a portion of an undertaking of the plaintiff upon the faith of which, it is claimed, the defendant executed the lease and took possession. The latter is contained in a letter dated June 2,1906, addressed to the defendant by the plaintiff, through its secretary, and, so far as material here, reads as follows: “Rev. A. F. Walker, Principal of the Hollidaysburg Seminary Company of this place, has placed a proposition before us of yours; and in answer thereto permit me to say, on behalf of the Seminary Company we will agree to put in a bath room complete on the first floor; fresco the walls of the second floor; do what papering'is necessary, and adjust, if possible, the difficulty of smoke in the parlor; build a new front porch or veranda; and do such other things as we deem essential for the good of the building, and the comfort of yourself and the members of the school.” The clause of the lease relating to repairs reads $s follows: “The said party of the second part to pay for all the ordinary repairs that may be necessary to keep the inside of said building in as good' condition as it now is, including replacing of broken glass in the windows, door locks, keeping the closets, sinks, faucets, and sewer connections in good repair, provided only ordinary repairs to the closets, sinks and sewer connections are needed and the party of the first part to pay all expenses for repairs to the furnace, radiators or in any way connected with the heating plant, for all other repairs to the inside of the building that in any way improve or add to the same and which are not made necessary by the negligence of the party of the second part.”

By affirming a point submitted by the defendant, the court instructed the jury that the plaintiff was bound to make the repairs called for in the lease and in the letter of its secretary, and that for any failure to make the promised repairs the defendant might deduct or offset any damages she sustained thereby. And in the portion of the general charge that is embraced in the fourteenth assignment of error, the court instructed the jury that, if the deduction was sufficient to wipe out' the plaintiff’s claim, their verdict should be for the defendant. That these instructions, taken in connection with the affirmance of the defendant’s point, were as favorable to her as she had a right to ask, is too plain for argument. We may, therefore, proceed at once to a consideration of the rulings upon evidence.

As the plaintiff had covenanted in the lease to pay all expenses for repairs to the furnace, radiators, or in any way connected with the heating plant, evidence that in the winter of 1906 and 1907 the furnace broke down completely; that the plaintiff, upon being notified, promised to make the necessary repairs, but failed to make them; and that in consequence the building was without heat for one month in very cold weather, except for oil and gas stoves furnished by the defendant, which were inadequate, was relevant to the issue and admissible. If we were to look only to the ruling complained of in the first assignment, it would seem that the defendant was prevented from proving these facts. But, upon examination of the entire record, we find that both before and after the ruling was made the plaintiff testified quite fully upon the subject, narrating the facts substantially as they were stated in the offer, and that her witness Curry testified in corroboration of her in many particulars. In his charge, the learned judge called the attention of the jury to the defendant’s claim to damages arising out of the breaking down of the furnace, as well as to the plaintiff’s testimony-bearing upon the same subject, and submitted the question to them in a clear and impartial manner that is not excepted to. So that if the ruling embraced in this assignment was erroneous, the error was harmless. The general rule, that a judgment will not be reversed for the exclusion of testimony where the appellant both before and after the ruling was permitted to give substantially the evidence covered by the rejected offer, is well sustained by numerous authorities, and is applicable here. The tenth assignment bears on the same subject. The defendant was asked whether the lack of heat affected the attendance at the seminary. The court permitted her to state whether or not any persons left the seminary at that time, and to name the persons, and, in the same connection, said that counsel could argue to the jury that they left because of lack of heat in the building. But the objection to her stating that some of the teachers left “just previously” was properly sustained. This fact had no apparent relevancy to any question arising out of the plaintiff’s covenant as to heating. The first and tenth assignments are overruled.

The lease contained no covenant as to papering. But the promise of the plaintiff, as expressed in the letter of its secretary, was “to do what papering is necessary.” This was a large building which, under the evidence, contained many more rooms than were needed for the accommodation of the pupils in attendance. The court properly held that this promise did not require every room that was unpapered to be papered. And a wide latitude was given in the admission of evidence as to the number of pupils in attendance, the rooms needed for their accommodation and for the general purposes of the boarding school, the condition of those rooms, and the amount of papering that was done. A considerable portion of the time occupied in the trial was taken up in the giving of evidence, pro and con, upon this question of papering. No good purpose would be served by an attempt, on our part, to recapitulate the testimony upon the subject, and to do so would unduly prolong this opinion. We therefore summarize our conclusion by saying that, upon an examination of the whole record of the testimony, we cannot find that any competent testimony bearing upon the question whether the plaintiff complied with its promise as to papering, as that promise is properly construed, was excluded. The second, third, sixth and seventh assignments are overruled.

The fourth and fifth assignments relate to the rejection of offers of evidence as to the amount of money which the defendant invested in furniture, pianos, and other articles for the school building; and in one of the offers it is stated that her prospects of running a school were ruined by the failure of the plaintiffs to carry out and perform their covenants to repair the building. The learned judge, in passing upon these offers, said that he would allow the witness to tell how many scholars were forced to leave; “she may say how many left, how many she has there.” The specific offer was rejected evidently because the learned judge deemed the evidence, as a basis of measuring the defendant’s damages, too speculative. We entirely concur in this conclusion. Unquestionably, loss of prospective profits may be shown as a basis for estimating damages for breach of a contract; but these cases are exceptional, and the evidence ought to be sufficiently clear to enable the jury to ascertain, with reasonable certainty, the profits that would have been made. In Wilson v. Wernwag, 217 Pa. 82, Mr. Justice Mestrezat, after an exhaustive review of the cases, thus lays down the principle: “From these authorities, it is clear that damages may be recovered for loss of profits caused by a breach of contract; and that they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent. . . . The law does not require absolute certainty as to the data upon which profits are to be estimated, but certainty to a reasonable degree or extent so that the damages may rest upon a definite basis and not wholly in speculation and conjecture.” See also Hendler v. Quigley, 38 Pa. Superior Ct. 39; Foehr v. New York Short Line R. R. Co., 40 Pa. Superior Ct. 7. We fail to see how a jury could arrive at any reasonably certain estimate of profits that the defendant may have lost, from mere proof of the amount of money that she expended in equipping the seminary. These assignments are overruled.

The eighth, ninth and eleventh assignments of error do not require particular discussion. The reasons for- rejecting the offers sufficiently appear in the assignments themselves, and are, in our judgment, valid. These assignments are overruled.

The twelfth and thirteenth assignments relate to the rejection of offers to prove the bad condition of the roof of the seminary and the consequences ensuing from its not being placed in proper repair. It will be noticed from the quotations we have made from the lease itself and from the letter of the plaintiff’s secretary, that the plaintiff entered into no specific promise or engagement with regard to this matter; and it is well settled that there is no implied obligation on the part of the landlord to make such repairs. The authorities upon the subject are numerous and conclusive. See Jackson and Gross on Landlord and Tenant, sec. 963, and cases cited in the notes. “In the absence of an express agreement there is- no implied obligation on the landlord to repair demised premises. ... If they burn down he is not bound to rebuild. The rule here, as in other cases, is caveat emptor. The lessee’s eyes are his bargain. He is bound to examine the premises he rents, and secure himself by covenants to repair and rebuild:” Moore v. Weber, 71 Pa. 429. The weakness of the defense, so far as this branch of the case is concerned, arises out of the fact that the defendant did not insist on specific covenant, on the part of the plaintiff, to make such repairs as are referred to in these offers of evidence, but placed reliance on the plaintiff’s promise to do what it deemed essential for the good of the building. These assignments are overruled.

The judgment is affirmed.


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    Tussey v. Clark, Appellant.

      Equity—Equity practice—Entering judgment for want of an answer— Judgment pro confesso—Equity rules.

    1. Where the defendant in a bill in equity has failed to file an answer within the time prescribed by the equity rules, a judgment cannot be entered against him for want of an answer, but the bill may be taken pro confesso and the cause be proceeded in ex parte in the manner provided by equity rule 30.

      Equity—Injunction—Preliminary injunction—Mandatory injunction —Attachment—Contempt—Road law.

    2. On a bill in equity against the supervisors and roadmaster of a township for an injunction to restrain them from constructing a ditch along a public highway, so as to cause water to flow on the plaintiff’s land, the court cannot, after having granted a preliminary restraining injunction, grant a preliminary mandatory injunction, without any hearing, by which it appoints a commissioner to repair the road at the point complained of at the cost of one of the defendants.
    3. Doubted, whether under the Act of June 13, 1836, P. L. 551, and its supplements, a court of equity has any jurisdiction to interfere with the discretion given to township supervisors to maintain and repair public highways unless such discretion has been manifestly abused.
    Argued Oct. 26, 1910.
    Appeals, No. 182, Oct. T., 1910, by defendant, from decree of C. P. Blair Co., Equity No. 697, Equity Docket “D,” awarding mandatory injunction and attachment for contempt in case of Samuel C. Tussey v. I. M. Clark, Albert Smith and John Henry, Supervisors of Blair Township, and Amos Birch, Road-master.
    Before Rice, P. J., Henderson, Morrison, Or-lad y, Head, Beaver and Porter, JJ.
    Reversed.

      Bill in equity for an injunction. Before Shull, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were the decrees quoted in full in the opinion of the Superior Court.

      R. A. Henderson, for appellant.
    This judgment was a mere nullity: Reinbold v. Laufer, 6 Northampton Co. Rep. 351; More v. Court Olympia, 6 North. Co. Rep. 22; Jeanes’s App., 116 Pa. 573; Morgan’s App., 125 Pa. 561; Dyer’s App., 107 Pa. 446.
    When those enjoined by a decree in equity are charged with having violated it, its violation must be made to clearly and satisfactorily appear by the petitioner asking for its enforcement: Sullivan v. Jones & Laughlin Steel Co., 222 Pa. 72; Privett v. Pressley, 62 Ind, 491; Rilelay v. Whitcher, 18 Ind. 458; Moore v. Smith, 70 N. Y. App. Div. 614 (74 N. Y. Supp. 1089).
    There was no appearance or printed brief filed for appellee.
    March 3, 1911:
   Opinion by

Henderson, J.,

The plaintiff, on June 17, 1909, filed a bill in equity against the defendants, three of whom were supervisors and the fourth, a roadmaster of the township, praying for an injunction to restrain the defendants from constructing a ditch along a public highway in the township in such a way as to cause the water flowing along the said ditch to be discharged onto the meadow land of the plaintiff at a place where it had not theretofore flowed. The prayers of the bill were (1) “that the defendants be enjoined and restrained from completing the construction of the ditch or water courses on the southeast side of the road leading from Hollidaysburg to Leamersville, where the lands of the plaintiff abut thereon; ” and (2) “that the defendant be required to fill up that portion of the ditch which has already been made on the southeast side of the road by lands of the plaintiff, and the water be permitted to flow in its natural courses.” On the same day the usual ex parte injunction was granted and on June 21, 1909, the injunction was continued until final hearing. The bill having been duly served and no answer having been filed within the time prescribed in the equity rule the solicitor for the plaintiff caused a judgment to be entered by the prothonotary against the defendants and in favor of the plaintiff by reason of the failure of defendants to file an answer to plaintiff’s bill of complaint. On November 22, 1909, the plaintiff presented a petition to the court alleging that the defendants had violated the preliminary injunction, whereupon a rule was granted to show cause why they should not be attached for contempt. Two of the defendants, Smith and Henry, filed answers on December 9, 1909, denying the allegation that they had in any way disregarded the injunction. On December 20, 1909, the court entered the following decree in the case: “Now, December 20, 1909, it is hereby ordered, adjudged and decreed that J. Luden Henry, is hereby appointed to repair the road at the point in question by lands of S. C. Tussey, in such way that the water will flow in the way it was wont to flow prior to filing the bill of the plaintiff in the above proceeding. The said work to be done under Mr. Henry’s supervision, and at the cost of Albert M. Smith, one of the defendants.” Under the authority of this decree the court’s appointee proceeded with the repair of the road and on May 19, 1910, presented his petition to the court setting forth that he was directed and instructed by the presiding judge of the court of common pleas “to construct a culvert on the public road leading from Hollidaysburg to Leamersville;” that the expense incident to the work was to be paid by Albert M. Smith; that the work was performed as directed by the court; that the cost thereof was $131.42 and praying for an order commanding the said Smith to pay to the petitioner the said amount. Of this amount, $55.20 is charged for twenty-four feet of thirty inch culvert pipe; $35.52 is the expense of “installing the culvert, fixing roads, guards,” etc., and $40.50 is charged by the petitioner for his services in superintending the work. On the same day the court made an order directing Smith to pay to the petitioner (J. Luden Henry) $131.42. To this order Smith took an exception May 21, 1910, and the same day moved the court to rescind the order of May 19,1910, which petition was refused on July 14, 1910, and an order entered that “if said sum is not paid by said Albert M. Smith then the sheriff is directed to produce the body of Albert M. Smith before the court on Wednesday, 27th of July, 1910, at 10 o’clock a. m. to submit to the further order of the court; ” and thereafter this appeal was taken. It is not now necessary to consider the question whether the court sitting as a chancellor had jurisdiction to enjoin the defendants on the averments set forth in the bill. Under the act of June 13,1836, P. L. 551, and its supplements, the duty is imposed on the township supervisors to maintain and repair public highways. The manner in which that duty shall be discharged is necessarily one involving the exercise of discretion by the supervisors. They have exclusive control of the subject, and courts of equity have no jurisdiction to supervise their action unless in cases of clear abuse of discretion.' The bill contains no averment of facts nor conclusion of opinion that the.construction of the ditch along the public highway which was undertaken by the supervisors was an abuse of the discretion which the law clearly committed to them. Nor does it contain an averment that that which was proposed to be done was outside of the authority conferred by the thirty-second section of the act of 1836 which gives to the supervisors power and authority to enter upon land along the highway “and cut, open, maintain and repair all such drains or ditches through the same as they shall judge necessary to carry the water from the said roads.” It is a matter worthy of consideration, therefore, whether the case as presented by the bill could be sustained. The complaint of the appellant, however, relates to matters subsequent to the filing of the bill and the granting of the preliminary injunction, and particularly to the order of the court of December 20, 1909, directing J. Luden Henry to repair the road and imposing the costs of that proceeding on the appellant. The report of this commissioner, if he may be so called, indicates that he received instructions which are not included in the order referred to, for in his report to the court he recites that he was directed and instructed to construct a culvert on the public road. The evidence taken on the rule to vacate the order shows that there was no culvert in the road at the place where the new culvert was placed and never had been and it is evident from the same testimony that Mr. Henry adopted a plan and provided the means of reconstruction of the highway in accordance with his ideas of what ought to be done at the location. The order referred to was clearly a mandatory order and issued without any sort of authority on the state of the record then existing. It was apparently issued on the return of the rule for an attachment for contempt but was not germane to that inquiry nor called for by any exigency of the case then existing. The preliminary injunction theretofore granted did nothing more than stay the hands of the defendants and stop the work in which they were engaged on the highway. It was in no sense a mandatory injunction. The object of a preliminary injunction is to preserve the existing status until the merits of the controversy can be determined after a hearing. The decision was in Farmers’ R. R. Co. v. Reno, etc., Ry. Co., 53 Pa. 224, that the sole object of a preliminary injunction “is to preserve the subject of the controversy in the condition in which it is when the order is made.” In Mammoth Vein Coal Co.’s Appeal, 54 Pa. 183, the court said: “It ought not to be forgotten that a preliminary injunction is a restrictive or prohibitive process designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the courts be determined.” The decision was to the same effect in Audenried v. Phila. & Reading R. R. Co., 68 Pa. 370, and was reaffirmed in Fredericks et al. v. Huber et al., 180 Pa. 572. In Washington University v. Green, 1 Md. Ch. 97, it was declared that a preliminary injunction could only be used for the purpose of prevention and protection and not for the purpose of commanding the defendant to undo anything which he had previously done. The same view was taken in the New York Printing & Dyeing Establishment v. Fitch, 1 Paige, 97; Attorney-General v. New Jersey R. R. Co., N. J. Eq., 3, 136. There are exceptions which the courts have felt compelled to make growing out of what was referred to in Cooke v. Boynton, 135 Pa. 102, as “a race against the law; ”-and also where the status has been changed by deceit or fraud as in Taylor v. Sauer, 40 Pa. Superior Ct. 229. These are cases where for the purpose of acquiring an unequitable advantage in anticipation of legal interference the status has been unjustly changed to the advantage of the defendant in the equity proceeding, but such cases are exceptional and only support a mandatory writ when the right is clear and where irreparable injury is likely to result or where the status quo should be restored to prevent the defendant from talcing advantage of his dishonest conduct. The case before us does not present any features which would justify the granting of a mandatory preliminary injunction. It is not alleged in the bill that the plaintiff has sustained any injury; the damage is anticipated only; the ditch was not completed at the time the bill was filed; water had not passed through it onto the plaintiff’s land nor so far as appears could it so flow until the work was finished, and all that the plaintiff was then entitled to at the utmost was the order preventing the completion of the plan. Much less was there any warrant for imposing on the appellant the cost of the work directed to be done. He had not been adjudged guilty of contempt nor had he been convicted by the decree of the court on a hearing on the bill of having done anything which he was not empowered to do in co-operation with his associate supervisors in the improvement of the road. He was amerced in the cost of an alleged improvement of the road without a hearing on the subject, without any plan as to the repairs contemplated and without limitation as to cost. He has been adjudged liable to imprisonment for his refusal to pay a considerable sum for an iron pipe laid across the road as a conduit for the flow of water, an expense clearly to be borne by the township so far as can be determined from anything appearing in the case, and to pay for the services of one appointed to assume the functions of the board of supervisors of the township in repairing the road. If in the judgment of the court the supervisors proceeded with the construction of the ditch after they had been enjoined it was of course within the power of the court to consider the subject of contempt and to adjudge the respondents to be in default, but that is a high power to be exercised only on clear evidence and expressed by a judgment. To take from the appellant the money which he has been ordered to pay to J. Luden Henry would deprive him of his property without due process of law. It may be that the defendants have not duly regarded the rights of the plaintiff, but the evidence is not before us and we will not anticipate on that subject. They are entitled, however, to a hearing according to the forms of law before they are adjudged to be liable.

Exception is taken to the action of the court in refusing to vacate the judgment by default entered by the prothonotary on November 18, 1909. This record was inadvertently made. Rule 29 of the equity rules provides that on failure to answer or demur within thirty days after service of notice of a rule so to do the plaintiff may enter an order as of course in the cause, that the bill may be taken pro confesso in which case, as also where the bill is taken pro confesso for want of an appearance, the cause shall be proceeded in ex parte, and the case may be put upon the next argument list and the matter of the bill may be decreed by the court when there reached in its order. And rule 30 provides that when the bill is taken pro confesso and the court shall have proceeded to á decree as aforesaid, such decree so rendered shall be deemed absolute unless the court or a law judge thereof shall within fourteen days after the service of notice of such decree on the defendant set aside the same, etc. The conclusion of the litigation is the decree. The effect of the order filed that the bill be taken pro confesso is that the cause shall be proceeded in ex parte. The entry of judgment was without authority under the rule and should have been set aside to the end that the procedure prescribed by the equity rules might be followed. It is unnecessary to consider the assignments relating to the refusal of the court to hear testimony in support of the petition of the appellant filed May 23, 1910, asking that the order of December 20, 1909, be vacated, as we have disposed of the case on other grounds. The first, second and third assignments of error are sustained, the order of December 20, 1909, the order of May 19, 1910, and the order of July 14,1910, imposing upon the appellant payment of the bill of J. Luden Henry for work done in repair of the public highway and the judgment entered against the defendants November 18, 1909, are reversed and set aside, one-half of the costs of this appeal to be paid by the plaintiff and one-half by J. Luden Henry.