author: Per Curiam,

text:
    Nagle v. Nagle, Appellant.

      Divorce — Setting aside decree — Fraud—Laches.
    A decree in divorce granted against a wife for adultery will not be set aside on the ground of alleged collusion between the wife's attorney and the libelant, the husband, where it appears that the wife signed and swore to an answer to the libel, knew of the decree within four days after it was granted, subsequently sold her property as a feme sole, married another man in eight months and was again divorced, permitted the libelant to marry again, and took no steps to set aside the decree until ten years after it was entered, and when the libelant’s second wife was still living.
    Argued April 11, 1910.
    Appeal, No. 145,. April T., 1910, by plaintiff, from order of C. P. Erie Co., May T.,‘ 1897, No. 7, refusing to set aside-decree in divorce in case of T. M. Nagle v. Agnes D. Nagle.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to set aside decree in divorce.
    Walling, P. J., filed the following opinion:
    The libel in above case asked for a divorce on the ground of adultery. The subpoena was personally served on the respondent in January, 1897. On May 1, 1897, counsel appeared for her and, on May 10, 1897, her sworn answer was filed denying the charge.' Much testimony was taken on behalf of libelant, at which her attorney was present and cross-examined. On July 19, 1897, we extended the time for taking testimony on behalf of respondent until the first Monday in August of same year. But no testimony was taken on her behalf; and on said date, August 2, 1897, a decree of divorce was granted. On same day, we gave plaintiff’s counsel leave to withdraw the testimony. Mrs. Nagle, the respondent, had personal knowledge of the granting of said divorce within four days after it was granted. And she knew the cause for which the divorce was asked, as appears by her answer, which was prepared by her counsel and read to her and she signed and was sworn to it.
    On the faith of that divorce, Mrs. Nagle was married to Henry Betts in the spring of 1898, from whom she later obtained a divorce, and Mr. Nagle was married to Miss Ellen Roberts in the spring of .1904, with whom he is now residing in the city. Respondent has also conveyed real estate and done business as a single woman.
    Nothing was done of record in above case for about eight years after the divorce was granted; then the plaintiff’s counsel, by leave of court, filed a copy of the libel, the original 'having been mislaid. The testimony was returned to the files in the summer of 1906. Some time prior thereto, it seems that a search was made for said testimony and it could not be found.
    On February 20, 1908, the respondent presented her petition to this court asking to have the said decree of divorce set aside on the ground of fraud, collusion, insufficiency of evidence on which to base the said decree, etc. The libelant filed an answer denying the material allegations of her petition. Testimony was taken on both sides. Libelant and respondent were married in 1890. They appear to have had some trouble and he applied for a divorce in 1894. That case, however, was dropped, but in May, 1896, they executed a deed of separation, and in consideration thereof, he paid her $60,000, and gave her the home where they had resided. At that time, there appears to have been some talk that she was to go to a western state and get a divorce and she claims to have made a trip west for that purpose; but she did not apply for a divorce from him. She was accompanied, on her western trip, by a lawyer from Erie, and he after-wards met her at hotels in Philadelphia and Atlantic City, and in the summer of 1896, he accompanied her to different hotels in New York and they traveled together through northeastern New York state, stopping at various resort hotels. He registered her name and his at the hotels and they generally occupied connecting rooms. She became pregnant in the early summer of 1896, and gave birth to a child on March 7, 1897. Said lawyer, although not named in the case, was the party with whom respondent is alleged to have committed adultery. And he appeared for her in the above stated divorce case, prepared the answer and was present and cross-examined libelant’s witnesses. Libelant testified, without objection, that he had not had sexual intercourse with respondent within over three years of the time said child was born. She charges a fraudulent conspiracy between Mr. Nagle and her lawyer, by which she claims her case was suffered to go by default, and that said attorney permitted it to appear that he had had improper relations with her to enable Mr. Nagle to get a divorce. That charge is denied by the sworn answer of libelant and by the evidence of said attorney. She claims that he was then in the pay of Mr. Nagle; but that is also emphatically denied by the attorney and by Mr. Nagle.
    In our opinion, there was no fraud or collusion in the matter. This is an equitable proceeding and respondent is the only witness called in her behalf, and her evidence is not sufficient to overcome the answer, and evidence on behalf of libelant. She is manifestly mistaken in some important matters and much of her evidence is hearsay. The exceptionally high character of libelant’s counsel is certainly a guarantee of good faith on their part. And, while respondent’s attorney occupied the awkward position of counsel and co-respondent, had there been a v defense, it certainly would have been to his- interest to have presented it.
    We carefully examined the evidence in 1897, and reached the conclusion that the case was made out, and made the decree. Respondent knew of that decree in four days; She had her remedy then by an application for a rehearing or by an appeal. If a wrong had been done, then was the time to right it. But instead, she ratified it; sold her property as a feme sole, and married again in eight months. Some years later, a lady relying upon that decree, married Mr. Nagle. To strike it down how, would do her irreparable wrong. For about ten years respondent permitted that decree to stand unchallenged and we think she was guilty of gross laches: Catts v. Catts, 35 Pa. Superior Ct. 293.
    Of course, the court may set aside a decree of divorce for fraud or imposition; but, it should be clearly shown especially after so long a time. There was no imposition practiced upon the court, we knew perfectly well who the co-respondent was; in fact, his photograph was returned as an exhibit with the depositions. His name was charitably left out of the case, but that was not a fraud; and certainly, the decree could not be affected by the fact that after it was granted, the testimony was withdrawn from the files by leave of court. The testimony was handed down with the decree, and on the same day it was withdrawn from the files by libelant’s counsel by leave of court.
    Respondent testifies that in May, 1896, when the déed of separation was made, there was an agreement by which she was to go to Oklahoma and obtain a divorce, and that Mr. Nagle was to pay all expenses thereof including her attorney. Even so, that does not prove fraud or collusion in the divorce case which he brought against her in January, 1897, for matters occurring after May, 1896. Even though respondent’s attorney suffered her case to go by default, that would be no reason for setting aside the decree, unless there was a fraudulent collusion between her .said attorney and libelant, and of that, there is no sufficient evidence.
    And now, August 2, 1909, the rule granted February 20, 1908, to show cause why the decree of divorce made in above-stated case on August 2, 1897, should not be vacated and set aside, is discharged at the costs of the respondent.

      Error assigned was order discharging the rule.

      Charles H. Edmunds, with him Samuel Scoville, Jr., for appellant.
    The authorities hold conclusively that the lower court had complete jurisdiction to set aside a decree obtained under the circumstances and that it was the duty of that court to relieve its records of any judgments or decrees tainted or avoided by fraud: Catts v. Catts, 35 Pa. Superior Ct. 293; Given v. Given, 25 Pa. Superior Ct. 467; Allen v. Maclellan, 12 Pa. 328; Fidelity Ins. Co.’s App., 93 Pa. 242; Boyd’s App., 38 Pa. 241.

      Frank Gunnison, with him Joseph M. Force, John S. Rilling and Henry E. Fish, for appellee.
    A decree in divorce will not be set aside on the ground of fraud, unless the evidence thereof be clear, and the motion made without delay: Perry v. Perry, 15 Phila. 242; Firmin v. Firmin, 16 Phila. 75; Baily v. Baily, 44 Pa. 274; Potts v. Potts, 10 W. N. C. 102; Richardson’s Est., 132 Pa. 292; Catts v. Catts, 35 Pa. Superior Ct. 293; s. c., 37 Pa. Superior Ct. 598.
    July 20, 1910:
   Per Curiam,

The facts of this case are clearly set forth in the opinion of the learned judge of the common pleas, and need not be restated by us. We have carefully examined the evidence and are all of opinion that his conclusions of fact are sustained thereby. It follows that the refusal to set aside the decree of divorce was not error.

The order discharging the rule to show cause why the decree of divorce made in the above case on August 2, 1897, should not be vacated and set aside, is affirmed at the costs of the appellant.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Green, Appellant, v. Ineson.

      Wages — Notice of claim — Sheriff’s sale — Lien.
    Where a wage claimant has his notice prepared and takes it with him to a sheriff’s sale, but withholds it until after a considerable part-of the property has been sold, he loses his preference in the distribution of the fund created by the sale, over a junior creditor who had no knowledge at the time of the sale that there was a claim for wages; and in such a case the claimant loses his preference, even as to the proceeds of the sale of the property that was made after he gave his notice.
    Argued April 11, 1910.
    Appeal, No. 135, April T., 1910, by plaintiff, from order of C. P. Warren Co., Sept. T., 1909, No. 33, in suit of J. G. Green v. G. F. Ineson et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Exceptions to report of C. E. Bordwell, Esq., auditor.
    From the record it appeared that W. L. Luther had a wage claim against the defendants for-$90.00, but at the, sheriff’s sale he did not announce this claim until the proceeds of the sale had reached to $75.00 or $100.-
    July 20, 1910:
    The total proceeds of the sale was $211.10. The plaintiff in the judgment and in the execution was J. G. Green, who had secured a judgment for rent amounting to $100. The auditor awarded Luther the amount of his claim.
    Exceptions to the auditor’s report were dismissed by the court in an opinion by Wm. E. Rice, P. J.

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

      D. U. Arird, for appellant.
    The wage claimants lose their right of preference by failing to give notice prior to the sale: Mould v. Mould, 28 Pa. Superior Ct. 318; Corry Bank v. Childs, 10 Phila. 452; Timmes v. Metz, 156 Pa. 384; Esterley’s App., 54 Pa. 192; Womelsdorf v. Heifner, 104 Pa. 1; Adamson’s App., 110 Pa. 459.

      Curtis M. Shawkey, for appellee:
   Opinion by

Rice, P. J.,

The Act of April 9, 1872, P. L. 47, which gives a hen for wages due to certain classes of persons and authorizes payment of the same up to $200 out of the proceeds of a judicial sale of the employer’s property, provides as to the notice to be given by the wage claimant; that it shall be in writing and be given to the officer executing the writ “at any time before the actual sale of the property levied on.” If the notice be given after the sale it is too late: Allison v. Johnson, 92 Pa. 314. The duty of proving that there was notice rests with the claimant, as it is a statutory prerequisite to the enforcement of his claim: Stichler v. Malley, 94 Pa. 82. A sale by a receiver, under a decree of court, is in effect under execution process, and wage claimants lose their right of preference by failing to give notice prior to the sale: Mould v. Mould, 28 Pa. Superior Ct. 318. We cite this case as bearing upon the question as to the time when the notice must be given. The law under which the appellee claims is a species of class legislation, and it is not unreasonable to require that all the facts necessary to bring his claim within the provisions of the act should be stated in the notice he is required to give: Adamson’s Appeal, 110 Pa. 459. In that case it was said by Justice Sterrett: “This is not only reasonable, but essentially necessary in order that the officer, as well as execution creditors and others interested, may act understandingly.” So, in Timmes v. Metz, 156 Pa. 384, it was said: “These notices therefore should be such as would indicate to the officer and those interested the sum due before the sale, the limit of time as to work done, the business defined by the acts, and the property subject to the lien.” The purpose of the requirement of notice being not merely to inform the sheriff how to distribute the fund, but to give execution creditors and others interested, such information as will enable them to act understandingly for their own protection, it is essential that the notice be given before the sale begins. In order that the execution creditor or other person interested may regulate his bidding understandingly, it is of the highest importance that a preferred lien, theretofore secret, should, be made known before the bidding begins. In the present case there were not two distinct sales under one writ, but only one sale, although the articles levied on were sold separately. Nor are there any reasons given why the’ appellee did not deliver the notice to the sheriff before the sale began. According to his own testimony, he had his notice prepared and took it with him to the sale and was there long enough before to present it in due season. By withholding it until after a considerable part of the property had been sold the appellant, who did not know until that time that there was a claim for wages, lost the opportunity of increasing the fund by bidding higher on that property. Having regard to the spirit as well as to the letter of the law, we conclude that the appellee lost his preference, even as to the proceeds of the sale of the property that was made after the notice was given, by failing to give notice in due season. This conclusion does not surround the claimant for wages with technical and difficult conditions, as is suggested in the appellee’s brief of argument, but is based on a reasonable construction of the statute, which fully protects the rights of all parties.

The decree is reversed at the costs of W. L. Luther, the appellee, and the record is remitted to the court below with direction to make distribution in accordance with the foregoing opinion.


author: Morrison, J.,

text:
    Abraham v. Worthington, Appellant.

      Principal and agent — Real estate agents — Commissions of rents collected — Contract—Affidavit of defense.

    In an action against real estate agents to recover rents collected by them after alleged revocation of the agency, where the statement of claim avers that the defendant’s full compensation was to be a commission of five per centum on all rents collected by them up tó such time as the plaintiffs might elect to terminate the agency, an affidavit of defense is sufficient which avers that defendants were to receive five per centum upon the rents during the entire period of the leases which they procured and that they were to advertise for tenants and that they did so with the consent and approbation of the plaintiffs, and that the amounts which they had received in commissions up to the date of attempted revocation was much less than the amount which they had expended in reasonable advertising and that in consequence of such expenditures a reasonable time for the existence of the employment had not elapsed on the date of the attempted revocation.
    Argued April 14, 1910.
    Appeal, No. 45, April T., 1910, by defendants, from order of C. P. No. 3, Allegheny Co., Aug. T., 1908, No. 384, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Caroline M. Abraham and Lillian Balsinger v. Harvey R. Worthington and W. Harry Evans, trading as Harvey R. Worthington & Company.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover rentals collected by real estate agents.
    The facts are stated in the opinion of the Superior Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Thomas Watson, with him George B. Wallace, for appellants.
    When commissions upon moneys paid under leases are the agent’s only compensation for getting such leases, the principal cannot by revoking the agency deprive the agent of commissions upon the future payments accruing under leases put in force by the agent before the revocation: Urquhart v. Mortgage Co., 85 Minn. 69 (88 N. W. Repr. 264); Law v. Billington, 180 Pa. 84.
    The principal, after the revocation of the agent’s authority, is liable to the agent upon a quantum meruit, for moneys, labors and time which the agent has been encouraged to spend and devote in procuring such leases: Blackstone v. Buttermore, 53 Pa. 266; Royal Remedy, etc., Co. v. Gregory Grocer Co., 90 Mo. App. 53; Lanusse v. Pimpienella, 4 Mart. (N. S.) 439; Gillett v. Corwum, 7 Kan. 156.

      Allen H. Kerr, with him Gray, Thompson & Rose, for appellees,
    cited: Coffin v. Landis, 46 Pa. 426.
    The court rightly gave judgment for the full amount of plaintiff’s claim: Savings Assn. v. Morrison, 1 W. N. C. 282.
    There can be no recovery on a quantum meruit when the contract specifies the whole compensation for the work done and services performed.

      July 20, 1910:
   Opinion by

Morrison, J.,

The judgment in this case was entered for want of a sufficient affidavit of defense and the defendants appealed. A careful examination of the declaration, the affidavit and supplemental affidavit of defense, the opinion of the court and the arguments of the respective counsel, leave us with a strong conviction that the learned court erred in making absolute the rule for judgment. In our opinion, the case ought to go to a jury.

The judgment granted was for $350, with interest thereon, for money collected by the defendants as commission on rents, although the money was actually received after the plaintiffs gave notice on June 3, 1907, of the discharge of the defendants as their agents for the collection of rents. The declaration avers that the defendants were employed by the plaintiffs for some time previous to June 3, 1907, as agents for the collection of rents from certain properties of the said plaintiffs, known as the Wilmar apartments, located on Forbes street in the city of Pittsburg. The affidavits of defense show that the defendants were employed on or about February. 1, 1906, and that the plaintiffs attempted to discharge them on June 3, 1907. On the latter date, the defendants rendered an account to the plaintiffs and delivered to them a check alleged to be for the net balance of all rents collected by the defendants up to that date. The declaration avers that the defendants were to receive as their compensation for collecting the rents a commission of five per centum on all rents collected by them in that behalf.

The fifth paragraph of the affidavit of defense, in our opinion, is quite important and it reads as follows: “That it was agreed between plaintiffs and the said firm of Byerly and Worthington, as renting agents, that the said renting agents were to receive a compensation for then-services of five per centum upon the said rents and that a part of the services to be rendered by Byerly & Worthington to plaintiffs included the advertising for and soliciting of tenants for the said apartment house.” The affidavit of defense also avers that the defendants from on or about February 1, 1906, during the spring renting season, caused the building to be extensively advertised in newspapers, rent lists and by signs placed upon the building itself. It is further averred that in this behalf the defendants expended $332.25, which was a reasonable, proper and necessary amount for said advertising, and it is specifically averred, in the supplemental affidavit, that from time to time while tenants were being procured for the building, in the fall and winter of 1906, defendants reported to plaintiffs the progress of the leasing of the building and also acquainted plaintiffs with the expenditures which defendants were making for advertising, etc., in their efforts to rent the said building and that plaintiffs acquiesced and approved the said expenditures and urged defendants personally to make further expenditures for advertising, etc., in their efforts to find tenants for the building. Defendants further aver that although they had expended .$332.25 in advertising and procuring tenants for plaintiffs’ building, that upon June 3, 1907, they had only received in commissions from rents actually collected up to that date, $187.27, and that if the plaintiffs were legally entitled to discharge the defendants on June 3, 1907, and are entitled to have the present judgment sustained, then the defendants would suffer a net loss of $147.94, moneys expended for advertising by defendants for plaintiffs’ benefit.' And that in view of the fact that the actual money expended by defendants for advertising as aforesaid amounted to $332.25, which was a reasonable, proper and necessary amount for such advertising, and in view of the fact that the defendants expended their time and efforts in securing tenants for the said building, that a reasonable time for the existence of said employment had not elapsed on June 3, 1907, when plaintiffs sought to terminate the contract. It is also averred that upon August 1, 1906, said firm of Byerly & Worthington was dissolved and the business thereof was taken over by Harvey R. Worthington and W. Harry Evans, partners, doing business as Harvey R. Worthington & Company, by whom the renting of the said Wilmar apartments was duly carried on. The affidavit further avers that at the time the renting of the said Wilmar apartments was placed with defendants nothing was said about the time over which the said employment would extend.

It will be noted that there is a marked difference between the plaintiffs’ averment of the contract and that of the defendants. The former is that defendants’ full compensation for their services was to be a commission of five per centum on all rents collected by them. But the defendants aver in the affidavit of defense and the supplemental affidavit that the defendants as renting agents were to receive as compensation for their services five per centum upon the said rents, and in the supplemental affidavit it is stated thus: “Under the contract of employment, the commission of defendants was to be five per centum of the rents due and payable under the several leases. Deponent avers that at the time of said employment there was and still is, a custom in the city of Pittsburg between landlords and their renting and collecting agents to pay the agents, for services in obtaining tenants and collecting rents, a commission of five per centum upon the rents due and payable under the several leases, and further, to allow the agent so procuring a tenant to collect the rents accruing under the lease during the term for which the agent has procured a tenant, unless good and satisfactory reason exist for the removal and discharge of such agent.” The supplemental affidavit further avers in substance that the defendants gave no just cause or reason for their discharge on June 3,1907.

Now, in our opinion, the defendants’ version of the contract being clearly stated in the affidavit of defense to the effect that they were to have the collection of the rents and receive the commissions during the full term of the leases is so flatly in conflict with the plaintiffs’ averment upon that question that the case must necessarily go to a jury. The plaintiffs’ version is very narrow, being simply that the defendants were to receive five per centum on all rents collected by them up to such time as the plaintiffs might elect to terminate the agency. But the defendants pointedly aver that they were to receive five per centum upon the rents during the entire time for which they secured tenants for the plaintiffs and that they were not only to collect the rents but were to advertise, solicit and procure tenants for the plaintiffs’ building and that they did do the latter with the consent and approbation of the plaintiffs.

The controlling point is what was the contract, and this is sharply in dispute, and, therefore, justice seems to require that a jury should pass upon this question.

In Jaekel v. Caldwell, 156 Pa. 266, it was held as stated in the syllabus: “An agent employed to sell land, whose authority has been revoked, may recover from his principal, upon a quantum meruit, the expenditures which he has been encouraged to make in effecting the sale, and compensation for his labor and time.”

In Law v. Billington, 180 Pa. 84, it was held as stated in the syllabus: “Where a person in pursuance of an agreement procures purchasers in consideration of a certain commission upon the price of all articles sold to such purchasers, he is entitled to such commissions on sales made after a breach of the contract by his employer, until he commits some overt act in the interest of another employer for the purpose of taking from his former employer the customers whom he had obtained for him.” While these cases are not precisely in point, yet we think, on principle, they apply closely to the present case.

We do not deem it necessary to pass upon the question of custom, which is raised in the affidavit of defense, because what we have already said requires a reversal of the judgment.

The first and second specifications of error are sustained and the judgment is reversed and a procedendo awarded.


author: Head, J.,

text:
    Pittsburg & Allegheny Telephone Company v. Braddock Borough, Appellant.

      Constitutional law — Title of act — Trial by jury — Delegation óf legislative power — Telephone and telegraph companies.

    1. The Act of April 17, 1905, P. L. 183, entitled, “An Act providing for the determination by the Court of Common Pleas of the proper county of all disputes as to the reasonableness of the amount of license fees between municipal corporations and telegraph, telephone or light or power companies,” is not unconstitutional. It does not violate the provision of the constitution relating to the title of statutes; nor does it violate the provision of the constitution relating to the trial by jury; nor does -it delegate legislative power to the courts.

      Municipalities — Trial by jury — Constitutional law.

    2. A municipality does not belong to the class whose rights to trial by juryare guaranteed by art. I, sec. 6, of the constitution of Pennsylvania.

      Telegraph and telephone companies — Practice, C. P. — Findings of fact.

    3. In a proceeding under the Act of April 17, 1905, P. L. >183, to determine the reasonableness of a license fee imposed by a municipality upon a telephone company, the findings of fact by the court have the same conclusive force and effect as the verdict of the jury, save only in cases of manifest and flagrant error on the part of the court.

      Telephone and telegraph companies — Res judicata — Reasonableness of ordinance.

    4. An adjudication by the court of common pleas of the reasonableness of a license fee imposed by a municipality upon a telephone company is not res judicata of a similar proceeding between the same parties several years thereafter. Conditions may have so changed in the meantime as to render an ordinance reasonable at the time of its passage unreasonable and oppressive at the time of the second proceeding.
    Argued April 15, 1910.
    Appeal, No. 48, April T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1908, No. 407, to determine a dispute between the Pittsburg & Allegheny Telephone Company and the Borough of Braddock.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Proceeding under the act of April 17, 1905, for the determination of a dispute as to the reasonableness of license fees imposed by the borough of Braddock on the Pittsburg & Allegheny Telephone Company. Before Kennedy, P. J.
    From the record it appeared that in 1894 the borough of Braddock passed an ordinance imposing a license fee of $1.00 on each telephone pole and $2.50 per mile for suspended telephone wire. This ordinance was declared valid by the Supreme Court in 1903. The present proceeding was to recover for license fees alleged to be due for the years 1905, 1906, 1907 and 1908.
    Kennedy, P. J., found, inter alia, the following facts:
    6. That the Pittsburg & Allegheny Telephone Company, the petitioner, has maintained during the years 1905 to 1908, both inclusive, 242 poles and seventy-one miles of wire in the borough of Braddock. The entire length of its pole lines is five miles and a thorough inspection of its poles and vares can be made in one day, but not by one man.
    7. There are and have been during the years 1905 to 1908, inclusive, erected and maintained in said borough by other companies than the petitioner, additional lines of poles and wires. The number of poles so erected, including those of the petitioner, number 1,273. The number of miles of wire erected by the several Companies is not definitely fixed by the testimony, but are approximately 200 or 300, the entire length of the pole lines being about five miles and the license fees provided for by the said ordinance would amount to about $2,000, annually.
    8. The inspection which is made by the borough is made by the chief of police and the street commissioner, who is also superintendent of public works and borough engineer, at the end of each month, and is made in connection with other duties of said officers, requiring a considerable amount of time on their part to make the inspection and reports. The policemen, also, are instructed to look out for any defects in the poles and wires, and to report the same. This inspection of the poles and wires is a regular examination of the same, and is made monthly by the chief of police, who files a written report of the result of his inspection with council at its monthly meetings, in accordance with the provisions of the ordinance attached to the answer filed in this case and marked exhibit “C.” The -superintendent of public works, who is also street- commissioner and borough engineer, also makes an inspection monthly of the same character of the condition of said poles and wires, a report of which is in writing and is filed with council at its monthly meeting; that these reports are considered monthly by council and the defective conditions, if any, as shown by said reports, are immediately referred to the company, the inspection covering the physical condition of the poles and wires, ascertaining whether the poles are sound or decayed and whether the wires are properly attached to the cross-arms and their proximity to other wires. In addition to these inspections, so reported, the entire police force of the borough, which numbers fourteen officers, are charged with the duty of constantly maintaining a supervision over and inspection of said poles and wires, both day and night; that these officers, in the discharge of their duty, report the condition, though not in writing, to the chief of police. In addition to this the chief of police and the superintendent of public works made an annual inspection, counting the number of poles and ascertaining the number of miles of wire, and this system of inspection has been in force for some time prior to 1905, to the present date, and is still in force.
    9. The chief of police of said borough receives a salary of $3.10 a day; the police officers $2.70 a day, and the superintendent of public works a salary of $150 a month. The cost of the maintenance of the police department of the borough annually exceeds the sum of $17,000, and the annual license fees charged to the petitioner, under the terms of the ordinance, is $419.50, which is applied to the maintenance of the police department.
    10. A thorough and efficient monthly inspection of the said poles and wires in the said borough, made by the chief of police and superintendent of public works, together with the oversight of the same by the members, of the police, would be sufficient to protect the public from any injury which might be occasioned by the construction and maintenance of the poles and wires in the public highways of said borough, but the same cannot be made'by one person in one day’s time, and the wages of competent persons for that purpose would exceed the sum of $2.70 per day.
    11. The poles and wires belonging to the petitioner have, at all times, been maintained in good repair, and a thorough system of inspection and supervision is, at all times, maintained by the company petitioner.
    12. That the inspection of all the poles and wires of all the companies in said borough cannot be made as readily and quickly as the poles and wires of any single one of the companies maintaining poles and wires in the highways of said borough.
    13. That the moneys collected as license taxes in said borough are mingled with the general revenues and taxes of said borough, and no separate account of same has been kept and no separate account of the inspection and supervision of . the poles and wires by the said borough has been kept by said borough, and the salaries of the police officers and the street commissioner are paid out of the general revenues of the borough. No addition was made to the salaries of the officers by reason of the inspection or supervision and regulation of the poles and wires of the company petitioner, although there is additional expense incurred by reason of such inspection, supervision and regulation.

      14. The borough of Braddock has a length of about one mile and a width of upwards of one-half a mile, with a dense population aggregating upwards of 22,000 people, and is closely built up and is directly in the pathway of commerce east and west; the Pennsylvania railroad lines running north of the borough; the Baltimore & Ohio lines through almost the center of the borough its entire length, and the Pittsburg & Lake Erie Railroad on the south about parallel with the Baltimore & Ohio, and along the lines of these railroads are numerous poles and wires. The Western Union Telegraph Company also has a line of poles through the borough, upon which are numerous wires. The Central District and Printing Telegraph Company maintains a line heavily strung with a number of wires through the center of the town. The Pittsburg Railways Company and the Monongahela Light & Power Company also maintain lines of poles and wires along the main streets and over some of the side streets and alleys. The telephone companies and light companies have numerous service lines running from the main lines, to private properties. Petitioner’s lines cross and recross above and below all of these various lines, making a network of very many wires, and some highly charged; thus rendering a most careful, thorough and efficient inspection and supervision of the various lines of poles and wires on the part of the borough for the safety of the same and its citizens and the public.
    15. Practically all of the streets and alleys of the borough of Braddock are paved and its territory almost entirely built up; that Braddock avenue, which is the main public highway of said borough, upon which are located all the banks and a majority of the stores and business houses, is crowded with poles and wires of other public corporations as well as those of the petitioner’s lines, almost its entire length, and the necessity for the inspection of the poles and wires on that thoroughfare exceeds the requirements of other streets in the borough and renders necessary a high degree of care and the most thorough, careful and efficient inspection and supervision of the lines of the petitioning company for the safety and protection of the borough, its citizens and the public.
    The court found that the act of 1905 was constitutional; that the ordinance was unreasonable, and that fifty cents was a proper fee for each pole and fifty cents per mile for each single line of suspended open wire.

      Errors assigned were the various findings and the judgment of the court.

      Jos. F. Mayhugh, for appellant.
    The Act of April 17, 1905, P. L. 183, is unconstitutional and void: Schellsburg v. Tel. Co., 26 Pa. Superior Ct. 343; North Penna. Coal Co. v. Snowden, 42 Pa. 488; Norris’s App., 64 Pa. 275; Tillmes v. Marsh, 67 Pa. 507; Haines’s App., 73 Pa. 169; Penna. Co. v. R. R. Co., 204 Pa. 356; Washington Boro. v. Tel. Co., 33 Pa. C. C. Rep. 161.
    The ordinance was reasonable: City of Chicago v. Rumpff, 45 Ill. 90; Evison v. Chicago, etc., Ry. Co., 45 Minn. 370 (48 N. W. Repr. 6); Kip v. Paterson, 26 N. J. Law, 298; City of Hudson v. Thorne, 7 Paige (N. Y.), 261; Cronin v. People, 82 N. Y. 318; Chester City v. Tel. Co., 154 Pa. 464; Kittanning Boro. v. Western Union Tel. Co., 26 Pa. Superior Ct. 346.
    The reasonableness of the ordinance is res ad judie ata: Schwan v. Kelly, 173 Pa. 65; Hartman v. Incline Plane Co., 2 Pa. Superior Ct. 123; Amshel v. Hosenfeld, 20 Pa. Superior Ct. 373; Schriver v. Eckenrode, 87 Pa. 213; Newton v. Hook, 48 N. Y. 676; Haneman v. Pile, 161 Pa. 599.

      John S. Weller, with him Richard W. Martin, for appellee.
    Cited as to constitutionality of act: West Chester Boro. v. Tel. Co., 38 Pa. Superior Ct. 603; Penna. R. R. Co. v. Braddock Elec. Ry. Co., 152 Pa. 116; Dunmore Boro.’s App., 52 Pa. 374; O’Neil v. Fire Ins. Co., 166 Pa. 72; McGonnell’s License, 209 Pa. 327; Foster Twp. Road Tax, 32 Pa. Superior Ct. 51; Rockhill Iron & Coal Co. v. Fulton County, 204 Pa. 44.
    July 20, 1910:
    Cited as to the reasonableness of the ordinance: Schellsburg v. W. U. Tel. Co., 26 Pa. Superior Ct. 343; Postal Telegraph Cable Co. v. Taylor, 192 U. S. 64 (24 Sup. Ct. Repr. 208); Atlantic & Pac. Tel. Co. v. Phila., 190 U. S. 160 (23 Sup. Ct. Repr. 817).
    Cited as to res adjudicata: Duchess of Kingston’s Case, 20 How. St. Tr. 538; Phila. v. Ry. Co., 142 Pa. 484; Cromwell v. County of Sac, 94 U. S. 351; Nesbit v. Riverside Independent Dist., 144 U. S. 610 (12 Sup. Ct. Repr. 746); Koekuk, etc., R. R. Co. v. Missouri, 152 U. S. 301 (14 Sup. Ct. Repr. 592); City of Davenport v. C. R. I. & P. R. R. Co., 38 Iowa, 633; Freeman v. Barnum, 131 Cal. 386 (63 Pac. Repr. 691); Arnold v. Hosiery Co., 63 Hun (N. Y.), 176.
   Opinion by

Head, J.,

The proceeding resulting in the decree appealed from was begun under the Act of April 17, 1905, P. L. 183. The borough of Braddock takes this appeal and complains in the first place that the said act of assembly is unconstitutional. The act has been twice before this court for construction: Delaware & Atlantic Telegraph & Telephone Company’s License, 37 Pa. Superior Ct. 151; West Chester Borough v. Postal Telegraph Cable Co., 38 Pa. Superior Ct. 603. In the last-mentioned case the constitutionality of the act was directly assailed, but this court held it to be a valid exercise of - legislative power. In the present case it is argued that the title of the act is defective in that it fails to give notice of the legislation to be found in the body of the act and thus offends against the constitutional provision on that subject. This is not the ground on which the legislation was attacked in the case already decided.

The act is entitled, “An Act providing for the determination by the Court of Common Pleas of the proper county of all disputes as to the reasonableness of the amount of license fees between municipal corporations and telegraph, telephone or light or power companies.” To determine a dispute is to end it. When a court ends a dispute between parties it does so by the entry of an appropriate order, judgment or decree. The act of the court in such case, being an exercise of judicial power, the idea of a previous hearing of the parties and ascertainment of the facts, and of all the ordinary incidents of a legal trial, are sufficiently indicated in the language of the title of the act providing for the entry of such judgment or decree. We cannot think that anyone interested in the subject expressed in the title could be fairly surprised at any provision contained in the body of the act. It designates the court that is to enter the decree. It provides for appropriate pleadings to raise the necessary issue and mark the boundaries of the disphte, the existence of which caused the filing of the petition. The act describes, by apt and familiar expressions, the character of the procedure to be taken under it, and declares the force, effect and limitations of the judgment or decree to be entered. All of these matters are so strictly germane to the determination of the dispute mentioned in the title that no good purpose could be subserved by loading the title with specific references to all of them.

The decisions construing and applying the constitutional provision referred to have been so numerous and so recent that it would be but a useless parade of learning to cite or refer to them here. We deem it sufficient to say that we regard the title to the act as a sufficient compliance with the constitutional requirement on that subject.

Nor is it necessary to more than mention the argument advanced to prove that by the operation of this act the borough of Braddock has been denied the benefit of art. I, sec. 6, of the constitution which provides “trial by jury shall be ,as heretofore and the right thereto remain inviolate.” In the Borough of Dunmore’s Appeal, 52 Pa. 374, it was determined that a municipality does not belong to the class whose rights are guaranteed by the section quoted. It was there clearly pointed out by Mr. Justice Woodward that as municipalities are but the creatures of legislative power, they must bow to the legislative will and be subject to its mandates, even in cases where natural persons, citizens of the commonwealth, might lawfully and constitutionally disregard such legislation.

It is further alleged that by this act the legislature has attempted to delegate legislative power to the courts. A study of the act clearly enough shows, we think, that the court, in entering the decree contemplated by the act, in no sense exercises legislative power. It merely ascertains and defines the boundary line which separates the reasonable from the unreasonable. The legislature, whose creature the appellant is, has declared that in the exercise of the police powers delegated to it, it must keep within that boundary line. With that’ limitation defined, the municipality, keeping within it, has the exclusive right as before to determine the exact amount of license fees which the corporations mentioned in the act must pay. The municipality -is but an agency created by the legislature to do its part in maintaining the public policy of the state and accomplishing the ends for which the state itself exists. Public service corporations are like agencies. They spring from the same creator and are brought into existence for the same purposes as the municipality itself. The act under consideration is but the expression of the legislative will that these two agencies must live in harmony and but provides the methods by which that harmony, if threatened or disrupted, may be maintained or restored. On no one of the grounds urged can we declare the act of assembly invalid, and the assignments of error on this subject must be overruled.

A number of assignments attack the findings of fact of the court below. It must be apparent that in making up such findings in cases like the present,, local conditions as described by the witnesses, as well as the opinions of qualified persons, would be factors of considerable importance. The presiding judge of the county wherein such a proceeding is instituted has much important knowledge concerning men and conditions that appellate courts cannot and do not possess. Hence the wisdom of that policy which requires us to accept these findings as having the same conclusive force and effect as would the verdict of a jury, save only in cases of manifest and flagrant error on the part of the trial court. A careful examination of the findings in the present case and the testimony from which they are drawn reveals no such error on the part of the learned court below, and as a consequence the several assignments on this subject cannot be sustained.

Finally, it is argued that the decree should be set aside because the reasonableness of the ordinance of the appellant borough, out of which this litigation arises, is res adjudicata. This contention is based on the fact that after this ordinance had been passed; but prior to the act of 1905, the appellant borough brought an action against the predecessor of the appellee company to recover license fees for certain years which had become due under the provisions of that ordinance. The company filed an affidavit of defense setting up that the ordinance was unreasonable and oppressive, and therefore invalid. Judgment was entered against the company for want of a sufficient affidavit of defense, and on appeal that judgment was affirmed by this court: Braddock Borough v. Allegheny County Telephone Co., 25 Pa. Superior Ct. 544. It ought to be apparent that the reasonableness of an ordinance must depend upon many conditions which, in their nature, are shifting and subject to change. From this it would seem to follow that an ordinance might well be deemed to be reasonable, in the light of the conditions existing at the time of its adoption, and yet might become unreasonable and oppressive when those conditions had changed or disappeared. It would be illogical, therefore, to hold that because license fees had been collected during certain years past, that no citizen could thereafter be heard to complain that the provisions of the ordinance had become unreasonable.

It may be proper here to quote from the opinion of this court in the Delaware & Atlantic Telegraph & Telephone Company’s case, 37 Pa. Superior Ct. 151: “The learned court below was not called upon, in this proceeding, to exercise the power possessed by the courts long before the passage of the act nowunder consideration, viz., to set aside an ordinance because it was unreasonable, oppressive and arbitrary, resulting from an abuse of the powers of the municipality. The object of this proceeding was simply to determine, from the evidence produced, 'the amount of annual license fees which should be paid to the said municipal corporation,’ ” etc. And the legislature in its wisdom has recognized the fact that in the very nature of things these determinations, whether made by the municipality in the first instance or by the court after a dispute has arisen, ought to be subject to change with changing conditions, because in sec. 5 it provides, “The amount of such annual license fees, as determined by the final order of the court, shall continue until altered by the court itself; but no application shall be made for that purpose oftener than once in every two years.”

After an attentive consideration of all the arguments urged upon us in the careful brief of the learned counsel for the appellant we are all of the opinion that the record discloses no reversible error.

Decree affirmed.


text:
    Siracusa, Appellant, v. The Miller Construction Company.

      Corporations — Officers—Secretary—Letter of secretary.

    1. Where a letter addressed to a corporation is answered by the secretary of the company over his individual signature, and the letter so signed showed that it was an answer to the letter received, the court cannot, in the absence of any evidence on the subject, say that the answer was the individual act of the secretary, and not the act of the corporation.

      Master and servant — Contract of employment — Change of employment— Evidence — Charge of court.

    2. Where a construction company employs a number of foreign workmen, puts them to work at a plant of its own, but subsequently transfers them to another plant which is alleged to have been operated by an independent contractor, and the men are not notified of any change in their employment, or that they are to look to a new employer for their wages, and the work is of the same character as at the other plant, and visibly part of a continuous line, and one month’s wages for work done at the second plant is paid by the construction company, the latter company will be liable for the wages of the workmen for work done at the second plant.
    3. In such a case where there is evidence that a written order was given by the construction company, assigning the laborers to the other work, although the paper is not produced, it is error for the court to refer to the order as merely a paper of identification.
    4. Where in such a case the construction company makes a clear admission of its liability when the claims of the laborers are presented to it by a justice of the peace, it is reversible error for the trial judge in a suit against the company for the wages to use such language as would lead the jury to conclude that the amount claimed was not duo from the construction company, but was due from the independent contractor.
    5. When there is sufficient evidence upon á given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories, not warranted by the evidence, should be studiously avoided; they can hardly fail to mislead the jury and work injustice.
    Argued April 13, 1909.
    Appeal, No. 87, April T., 1909, by plaintiff, from judgment of C. P. Venango Co., Nov. T., 1907, No. 40, on verdict for defendant in case of T. Siracusa v. The Miller Construction Company.
    Before Rice, P. J., Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Assumpsit for wages. Before Criswell/P. J.
    Appeal from judgment of justice of the peace.

      July 20, 1910:
    The' facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (4, 5, 9, 10, 11) the instructions referred to and quoted in the opinion of the Superior Court.

      Gervaise G. Martin, for appellant.

      A. B. Osmer, with him J. H. Osmer and N. F. Osmer, for appellee.
   Opinion by

Head, J.,

The defendant is a corporation which in the winter of 1906-1907 took a contract for the grading and preparation of the right of way of a railroad company through portions of Venango county. The plaintiff' began this action to recover wages for labor doné by him on a part of this line in the month of March, 1907. It appears that along the line two camps had been constructed where the workmen temporarily lived. One was known as Brandon’s ferry, the other as Victory run.. The labor, for the wages of which the plaintiff sues, was done on the portion of the line known as the Victory run job. The defendant, not denying that the plaintiff did the work, and consequently earned the money for which he sues, defends on the ground that this work was not done for it. It alleges that although it had a general contract for the entire construction through the county, it had sublet that portion of the work called the Victory run job to an independent contractor, referred to in the testimony as the Auman Construction Company, and that it was in nowise responsible for the wages of those who performed labor on that job. This defense naturally put the parties at issue as to certain important questions of fact.

The plaintiff’s theory, which he supported by evidence, was that he was one of a number of Italians who had been hired in Pittsburg, at the instance of the defendant, and had been taken up to Venango county and put to work on the right of way, probably in December, 1906. That he was first put to work at Brandon’s ferry and remained there until near February 1; that during that time he was in the service of the defendant company, employed by it, doing its work, and paid by it. That he was never discharged from that service and never agreed to go into the service of any other employer. That about February 1, he was moved, with a number of his fellows, by the order of the defendant’s officials, from Brandon’s ferry to Victory run. That during the month of February he worked at the latter place and received his pay as before from the defendant; that he continued to work during the month of March but never received payment for the wages earned during that month.

During the course of the trial a paper was offered and admitted in -evidence marked exhibit “A.” This was first a letter from the manager of an employment office in the city of Pittsburg, whose name was Schepis, whose business it was to furnish workmen for. contractors doing railroad work. On November 24, 1906, he addressed a letter to The Miller Construction Company advising it that he was now in a position to furnish any number of laborers the company might need on its work. This letter was received at the office of The Miller Construction Company and the following reply, written on the same sheet, was mailed to the employment office: “Dear Sir: How soon can you put 60 men at Brandon, Pa. for all winter’s work? Answer at once to Franklin, Pa. C. E. Lovejoy.” Lovejoy was the secretary of The Miller Construction Company.

The manifest purpose of the offer of this letter was to show that when the plaintiff and his fellows were originally taken from Pittsburg to Venango county, they went into the service of the defendant and thus that the relation of master and servant, employer and employee was established. In referring to this in the general charge the learned court said: “We call your attention to the fact, gentlemen, that while the letter is directed to The Miller Construction Company, the reply is not by The Miller Construction Company but by Mr. Lovejoy individually.” This is made the subject of the ninth assignment of error. As we read the record, it discloses no evidence whatever to warrant the court in making the assertion contained in the language quoted. The letter, in response to which the reply was written, was a letter, not to Lovejoy individually, but to the company of which he was secretary. As an individual he had no right to receive that letter, to pass upon its contents, or to reply to it. On the other hand, the normal and natural way for the company, to which it was addressed, to make reply, would ,be by the hand of its proper officer, to wit, its secretary. There is no evidence that the company, its officers or directors, repudiated this reply or denied responsibility for it. Although it was of great importance to the plaintiff to convince the jury clearly that he had gone into that section to work for the defendant company, the learned court disposed of this item of evidence by the declaration that the reply was not the act of The Miller Construction Company, but only the act of Mr. Lovejoy as an individual. The farthest we think the learned court could have properly gone would have been to have submitted the question of fact to the jury, even though every reasonable inference from the facts' in evidence pointed to the conclusion that it was the act of the company. The ninth assignment is sustained.

The transfer of the men from Brandon’s ferry to Victory run was accomplished under these circumstances. One McMurdy was the person in active charge of the work at Victory run. He needed more men. He went to the office of the defendant company at Franklin, made known his wants and received an order from Miller, the vice president, signed by Lovejoy, directing the transfer of the required number of men to Victory run. The witness, McMurdy, says: “I took them from there (Brandon) on an order from Miller, signed by Lovejoy, and put them to work on the Victory run job.” Marando, who had taken the gang of Italians from Pittsburg to Venango county for the defendant, and who in a general way looked after their interests, testifies on this subject: “Q. Did you know what was the occasion of their going to the Victory run camp? A. They hadn’t the steam shovel ready yet, and when it wasn’t ready they moved the men for about two weeks. Q. How did they come to move them? A. Mr. Lovejoy came himself and told me to take those men to Victory run camp where McMurdy was. Q. Was there any writing? A. He gave me an order.” Here again was evidence of the first importance to substantiate the theory of the plaintiff that, in changing his place of work, he did not change or intend to change employers. In adverting to this testimony in the general charge the learned court used the following language which is made the subject of the fifth assignment of error, to wit: “There was some evidence that some kind of an order was given by Mr. Love-joy and taken to these men, but it developed that it was simply a paper given to Mr. McMurdy for the purpose of identification.”

We have gone over the record with much cafe but we are unable to find in it any warrant for this conclusion on the part of the learned trial judge. The order itself, as we understand it, was not produced in evidence. The testimony as to its purport and purpose seems to be clear enough and this testimony, as we read it, might easily have led the jury to an entirely different conclusion. As the writing itself was not in evidence and the character of its contents was proven only by oral testimony, it was the function of the jury, under proper instructions, to determine what were the character and object of the order. The fifth assignment is sustained.

• When the wages earned in the month of March by the plaintiff and his colaborers were not paid, their claims were left with Esquire Btjnce, a justice of the peace, for collection. According to his testimony he took these claims to the office of the defendant company where he met its officials and presented them for payment. He testifies they made no denial that the work had been done or that the wages were due and declared they would pay the bill. He says: ‘ Mr. Miller made an appointment with me to have all the bills at his office. Q. What do you mean by all the bills? A. The .bills for labor that I had in my hands for collection, this one [the plaintiff’s] with others, and bring the statements and have an attorney come to his office that evening, and in pursuance of that I went there. Q. Did he say Why he wanted them to come there? A. He wanted to settle the claims. ... Q. Was the money paid that night? A. No, sir. Q. Was any reason given by the Miller company why it wouldn’t be paid? A. Yes, sir, they said we are willing to pay the amount but we will retain the commissary. . . . Q. Did they raise any question then as to the liability of The Miller Construction Company? A. No, sir.”

The witness goes into considerable detail to explain that the defendant company wanted to so arrange the matter, if possible, that they could get from Auman, whom they now claim to have been a subcontractor, certain moneys due them from him, or property of his in lieu thereof. But in no way was his testimony that we have quoted shaken, yet the learned trial court, in treating of this evidence which was most material to the plaintiff’s case, used the following language, fourth assignment: "Squire Bunce testifies to a conversation had at the office of The Miller Construction Company after the work was performed, in which he states at first that it was admitted that the amount was due by The Miller Construction Company to this man, but before he left the stand he stated that Mr. Miller and those in the office requested him to proceed and secure judgment against Mr. Auman, or the Auman Construction Company, and then attach the money in their hands. This conversation, if it took place as they allege, would indicate that the amount was not due from The Miller Construction Company, but was due from Mr. Auman.” Again we are obliged to say that the testimony as to what took place, being oral, it was for the jury under proper instructions and not for the court to determine what it indicated. According to the testimony the defendant company made a clear admission, both of its liability and of its intention to pay. The plan which the officials sought to have the magistrate follow was not any withdrawal of either of these admissions and was not apparently so intended, but was designed to straighten out the relations of the company with Auman rather than to affect the plaintiff and other laborers in any particular. The fourth assignment is sustained.

The tenth and eleventh assignments complain of the charge as a whole in that the learned judge failed to clearly and adequately define the issue between the parties and to accurately and judicially present for the jury’s consideration the law applicable to the case. A careful reading of the entire charge impresses us with the idea that the learned trial judge was strongly of the opinion that the weight of the testimony was so clearly against the plaintiff that there was but little left for the jury to consider. Now the plaintiff’s theory was supported by evidence that tended to show the following facts: The defendant, as we have said, had contracted for the necessary work along the entire right of way. Being in need of laborers, it had arranged, through an employment office in Pittsburg, to have a number of Italian workmen gathered together and hired, as the reply to the letter quoted indicated, "for all winter’s work.” These men, the plaintiff among them, were thus assembled, taken to Venango county and placed on the job at Brandon’s ferry. There does not seem to be now any question that while there they were working for and paid by the defendant company. By the order of their employer, some of the men, the plaintiff again among them, were transferred from Brandon to Victory. The men were not notified of any change in their employment. They were not advised, nor was anyone representing them, that thereafter they would have to look to a new employer for their-wages. The work done at the new place was the same in character as at the old and visibly a part of a continuous line. When the first month was completed they were paid by checks signed by Lovejoy, with whom their representative had become familiar as a general officer of the defendant company. It is true there is testimony that in' signing these checks Lovejoy was in fact acting for Auman, but that did not appear, and the effect of the testimony in explanation of these checks was for the jury after having been properly instructed by the court.

The evidence does not show the existence of any partnership or corporation known as The Auman Construction Company. It does show that an individual named Auman appeared once or twice on the Victory run job, and Mc-Murdy states he was working for him or for a construction company under whose name he operated. It also shows that the defendant company owned much of the machinery, if not all of it, used in that portion of the work; that it supplied the cement and other matters of like significance, not necessary here to be detailed, but all tending strongly to show not only that the plaintiff believed he was, all of the time, in the service of The Miller Construction Company; but that there were very strong reasons to induce such belief even in the mind of a man much more intelligent than he. In a word, the testimony produced on the part of the plaintiff was fairly calculated, if accepted by the jury as true, to shatter the single line of defense interposed by the defendant.

Viewing the testimony in this light, as we do, we cannot escape the conclusion that the charge of the learned trial court was inadequate to fairly present to the jury the strength of the plaintiff’s case. The learned trial judge was not bound to advert to the testimony in detail at all, but having undertaken to do so, he was bound to so present it that the fair weight of the plaintiff’s contention would not be diminished by such presentation. "When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it' calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories, not warranted by the evidence, should be studiously avoided; they can hardly fail to mislead the jury and work in justice Burke v. Maxwell’s Admrs., 81 Pa. 139. The tenth and eleventh assignments are sustained. The remaining .assignments, not herein specially adverted to, are overruled.

Judgment reversed and a venire facias de novo awarded.


author: Henderson, J.,

text:
    Woods Run Avenue.

      Road law — Damages—Right of mortgagee — Assignment of award.

    1. An owner of land at a time the land is taken for public use is the person entitled to the damages awarded for such taking; but where the land is subject to the lien of a mortgage, the court having jurisdiction of the subject will guard the rights of the lien creditors.
    2. While the award is in the name of the owner, however, he becomes a trustee for the mortgage creditor, and until there has been an actual payment of the damages assessed to the owner, by the municipality, the mortgage creditor has standing to intervene and claim the fund to the extent necessary to satisfy his lien; and he may maintain this right against an assignee of the award although the latter paid a valuable consideration for the assignment, and took it without actual knowledge of the mortgage.
    Argued April 15, 1910.
    Appeal, No. 63, April T., 1910, by John Kelso, from order of C. P. No. 3, Allegheny Co., Feb. T., 1907, No. 599, making absolute rule to pay over an award In re Petition of the City of Aliegheny for the appointment of viewers in the matter of the widening and damage by grade of Woods Run Avenue from Perrysville Avenue to Brighton Road.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to pay over the amount of an award to a mortgage creditor.
    From the record it appeared that on January 4, 1907, the German National Building & Loan Association of Pittsburg conveyed by general warranty deed certain land situate in the city of Allegheny to S. H. Cohen, and as part of the consideration Cohen executed to the building and loan association a mortgage upon the said premises for $2,000. Shortly after the execution of this deed and mortgage, the city of Allegheny improved Woods Run avenue by widening the same and changing the grade. Viewers were appointed to assess the benefits and award damages to the abutting property as a result of the improvement of Woods Run avenue, and on April 11, 1908, the viewers’ report was filed and confirmed nisi. S. H. Cohen was awarded the sum of $1,299 for damages sustained to the property conveyed to him by the deed, and subject to the mortgage above mentioned. On January 3, 1908, while the viewers had under consideration the question of damages to this property, Cohen executed to E. E. Fulmer a deed of assignment of all his right, title and interest to the damages awarded to him by the board of viewers appointed by the court of common pleas No. 3 of Allegheny county upon the widening and damage by grade of Woods Run avenue. The mortgage of Cohen to the German National Building & Loan Association was assigned to the Bankers’ Trust Company of Pittsburg, and on January 23, 1909, the Bankers’ Trust Company presented its petition praying that the report of the board of viewers, awarding damages to S. H. Cohen, be amended by striking out the name of S. H. Cohen and inserting in its stead the name of the Bankers’ Trust Company, and that the $1,299 be paid and distributed to the Bankers’ Trust Company. A rule to show cause was granted on the petitions.
    July 20, 1910:

      Error assigned was order making absolute the rule.

      E. E. Fulmer, for appellant.
    An award of damages against a municipal corporation and in favor of the owner of the fee is not affected by any hen on the property in such way as to put the municipality bound by such award on notice as to the lien, and unless the holder of the lien presents his claim before the award is confirmed and the money paid by the municipality, or the award transferred and the money received by the owner of the fee, the holder of the lien has no equity. The right of the holder of the lien to receive his money out of such award is purely equitable and his claim must be presented in time: Reese v. Addams, 16 S. & R. 40; Road in Upper Dublin & Whitemarsh Twps., 94 Pa. 126; Powell v. Whitaker, 88 Pa. 445; Knoll v. Ry. Co., 121 Pa. 467; Jackson v. Pittsburg, 36 Pa. Superior Ct. 274; Dollar Savings Bank v. Pittsburg, 25 Pittsburg Leg. Journal, 185; Hamburger’s App., 2 Walker, 320; Mott v. Clark, 9 Pa. 399; Downey v. Tharp, 63 Pa. 322; Blair v. Mathiott, 46 Pa. 262; Taylor v. Gitt, 10 Pa. 428; Mifflin County Nat. Bank’s App., 98 Pa. 150.

      Thomas F. Garrahan, with him Langfitt & McIntosh, for appellee.
    Damages awarded to a mortgagor for land taken for a right of way, or other public improvement, become a substitute for the premises taken, and the mortgage is a specific lien upon the fund: Reese v. Addams, 16 S. & R. 40; Workman v. Mifflin, 30 Pa. 362; Phila. v. Dyer, 41 Pa. 463; Keller’s App., 29 P. L. J. 316; Knoll v. Ry. Co., 121 Pa. 467.
   Opinion by

Henderson, J.,

It is a well-recognized rule that the owner of land at the ' time it is taken for public use is the person entitled to the damages awarded for such taking, and it is equally well settled that where the land is subject to the lien of a mortgage the court having jurisdiction of the subject will guard the rights of the lien creditor. This is on the theory that the land is converted into money to the extent to which damages are allowed. The damages become a substitute for the thing taken and the mortgage is a charge against the fund. While the award is in the /name of the owner, however, he becomes a trustee for j the mortgage creditor and until there has been an actual / payment of the damages assessed to the owner by the municipality the mortgage creditor has standing to intervene and claim the fund to the extent necessary to satisfy his lien. It would be manifestly unjust to deprive the creditor of a portion of his security and thereby perhaps take from him a part of his property without according him the reimbursement which he would have through the receipt of the damages allowed for the land. The principle is asserted in Reese v. Addams, 16 S. & R. 40; Workman v. Mifflin, 30 Pa. 362; Philadelphia v. Dyer, 41 Pa. 463; Powell v. Whitaker, 88 Pa. 445. The appellant contends that he is not subject to the operation of this rule, however, because he took an assignment of the Cohen award for a valuable consideration by reason of which he is an innocent purchaser and took the assignment free from any equity of the mortgagee of which he was ignorant. But we do not think the doctrine applicable to the case of an innocent purchaser of a judgment or mortgage applies in this case. The proceeding under which the damages were assessed was still pending in the court of common pleas of Allegheny county. The report of viewers was not finally confirmed until June 2, 1908, while the assignments from Cohen to Fulmer and from the latter to Kelso were made March 9, 1908. The money has not been paid by the city, and under all of the authorities the application of the appellee was in time. The claim set up by the Bankers’ Trust Company, receiver of the building and loan association, is in no sense a secret equity. Its mortgage was of record. The proceeding to improve the. highway was also a matter of record as was the report of the viewers awarding damages to the Cohen property. The appellee is presumed to have known that the mortgage creditor had a claim against the damages allowed, and he was therefore in possession of all of the facts of which the receiver had knowledge. The case is not distinguishable in principle from Powell v. Whitaker, supra. The report of that case does not show to whom the second jury of view awarded the damages. Nor do we consider it material that the award is in the name of the owner while the right to the fund exists in the mortgagee. The\ important matter is that the mortgagee claims the fund/ before it is paid and the law declares that under such\ circumstances the amount of the assessment is applicable \ to the mortgage lien to the extent necessary to satisfy ¡ it. What protection the appellant miglitTiave had if he had proceeded before the sale of the property on the mortgage we need not now consider. The only question before us is as to the rights of the holder of the mortgage and the holder of the claim for damages assigned by Cohen. On that question the rights of the mortgagee are superior and the case was well decided in the court below.

The judgment is affirmed.


text:
    Lapcevic v. Guardian Fire Insurance Company.

      Appeals — Corporations—Receivers—Quashing appeal.

    Where a judgment is entered on a verdict against a corporation and on the last day of the six months thereafter, an appeal is taken by the receiver of the company, such appeal will be quashed where there is nothing on the record to show that the company was insolvent, or in the hands of a receiver, or that the receiver had intervened, or had made any attempt to intervene, and it also appears from the answer to a motion to quash that the company had been dissolved and a receiver appointed over a month before the judgment was entered.
    July 20, 1910:
    Argued April 20, 1910.
    Appeal, No. 21, April T., 1910, by Geo. H. Calvert, receiver, from judgment of C. P. Westmoreland Co., Aug. T., 1908, No. 950, on verdict for plaintiff in case of Samuel Lapcevic v. Guardian Fire Insurance Company of Pennsylvania.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Motion to quash appeal.

      W. K. Jennings, with him D. C. Jennings, for appellant.

      C. B. Shaw, with him John C. Silsley, for appellee
   Per Curiam,

The plaintiff brought an action against the defendant corporation and after trial before a jury obtained judgment on March 15, 1909, against the company. No appeal was taken by the company. But on September 15, 1909, a prsecipe for appeal on behalf of George H. Calvert, receiver, was filed with our prothonotary and a writ issued to bring up the record. No bail was given. The receiver had not intervened and at the time of the appeal, as well as at the present time, there was nothing in the record to show that the company was insolvent or had been dissolved or that a receiver had been appointed. But it is substantially alleged in answer to the motion to quash, that on February 6, 1909, the company was dissolved and the receiver appointed. No order of court, however, permitting him to intervene was made or asked for. It is to be observed that this is not a case of a judgment obtained before the dissolution of the corporation and the appointment of the receiver, and no circumstances are alleged in explanation of the omission of the receiver to intervene before the case was tried or to apply for permission to do so before the time for appeal expired. Whether or not upon a distribution of the assets of the corporation the receiver or other persons entitled to participate in the distribution may question the conclusiveness of the plaintiff’s judgment as evidence of the amount of his claim, is a question which does not arise here.» Under all the circumstances we all are of opinion that the motion to quash should prevail. See Beach on Receivers, sec. 708; High on Receivers, sec. 258.

The appeal is quashed.


text:
    Conrad Schopp Fruit Company v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, Appellant.

      Carrier — Railroads—Notice of claim — Waiver.
    1. Where a railroad company is sued for the loss of a carload of tomatoes which were alleged to have rotted from the neglect of the company properly to ice them, and the company has full knowledge of the condition of the car and its contents upon arrival, and in the course of correspondence with the owner denies its liability on the ground that it had properly performed its contract of carriage, it cannot after suit brought defend on the ground that it had not received the thirty day notice of loss provided for in the bill of lading.
    2. In such a case where the evidence is conflicting as to whether the decayed condition of the tomatoes was caused by a lack of ice which the defendant had agreed to supply, the case is for the jury.
    Argued April 21, 1910.
    Appeal, No. 84, April T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 169, on verdict for plaintiff in case of Conrad Schopp Fruit Company v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for loss of car of tomatoes. Before Cohen, J.
    The facts are stated in the opinion of the Superior Court.

      July 20, 1910:
    Verdict and judgment for plaintiff for $70.95. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant?

      R. II. Hawkins, of Dalzell, Fisher & Hawkins, for appellant.

      Jos. A. Beck, with him McKee, Mitchell & Alter, for appellee.
   Opinion by

Henderson, J.,

Under the evidence presented at the trial it does not seem to be important whether the liability of the defendant is to be determined according to the terms of the bill of lading delivered by the initial carrier to the plaintiff or under the waybill received by the defendant with the car. The bill of lading required that the car be iced every twenty-four hours, while the “card waybill” issued by the first company to the defendant contained a direction that the car be iced at Columbus and the defendant offered evidence to show that on the evening of August 1, at Columbus 6,000 pounds of ice were added to the supply in the car whereby the tanks were filled to their capacity of 9,000 pounds. As the car was received in Pittsburg the next day it could be said in strictness that it was iced every twenty-four hours. The plaintiff proved that a full supply of ice was in the car when the freight was shipped on July 31, and the question on this branch of the case is not so much whether ice was supplied in accordance with the bill of lading issued by the Vandalia Company as whether the car was sufficiently supplied with ice in transit, for the defendant did not 'deny its obligation to supply ice to the car but undertook to prove performance of its duty under the terms of the card waybill by showing that the car was iced at Columbus. There was no contradiction of the plaintiff’s evidence that the tomatoes were in a badly damaged condition on their arrival at Pittsburg and evidence was introduced to show that this damage was caused by the lack of ice in the car. On the question of the supply of ice the evidence was contradictory the defendant alleging and offering evidence to prove that there was a full supply at Columbus and that there were six tons in the car when it arrived at Pittsburg. The plaintiff’s evidence, on the other side was to the effect that there were only about 200 pounds of ice in the car when it reached its destination. The court properly instructed the jury that they must be satisfied that the decayed condition of the tomatoes was caused by a lack of ice and that if the defendant supplied ice as shown by its evidence it had performed its duty in that respect. It became a matter of fact for the consideration of the jury, therefore, whether the defendant failed to provide ice and whether this failure caused the plaintiff’s loss. On the second branch of the case the defendant claims exemption from liability because of the provision in the bill of lading issued by the first carrier that no carrier on the route of transportation should be liable for any loss unless the plaintiff should give notice in writing of its claim for loss and within thirty days from the date of the arrival of the shipment at Pittsburg. It does not appear from the evidence just when the defendant received' written notice of the plaintiff’s claim, but there is some evidence tending to show a waiver by the defendant of this provision of the bill of lading. That the company had notice of the condition of the car on its arrival at Pittsburg seems evident from the testimony of one of the plaintiff’s witnesses who received the freight and who was at the car immediately after its arrival and who testified that he refused to “O. K.” the freight bill until the defendant’s agent at the produce yards insérted on the freight bill in red ink “Arrived without ice.” That an investigation and correspondence was carried on by the defendant in regard to the plaintiff’s loss is apparent from the testimony of George E. Marcroft of the freight claim department of the defendant and from the letter of E. E. Wright, defendant’s freight claim agent, to the plaintiff’s attorney dated April 10, 1907. In this letter the plaintiff’s claim for damages was refused, the reason for the refusal being that “Analysis of the investigation conducted shows very clearly that the shipment involved received a good movement over our line, was kept properly refrigerated and was tendered to the consignees promptly on arrival. There is absolutély no good reason for pressing this claim against us. It is respectfully declined.” The plaintiff in its supplemental statement of claim set forth this letter and averred a waiver by the defendant of the thirty days’ notice. The evidence warrants the inference that the defendant had notice of the claim and that its refusal to pay was based not on the plaintiff’s failure to give notice in time but because it had properly performed its contract of carriage. As the loss was one which occurred apparently while the goods were in the custody of the defendant and it had prompt notice of the condition of the car and its contents it had all the benefit of notice which it would have had if the notice had been given in writing, and while it had a right to insist on strict performance in this respect that was a right which it could waive: Nemcof v. R. R. Co., 39 Pa. Superior Ct. 542; Hoffman v. R. R. Co., 39 Pa. Superior Ct. 47. Where the company refused payment for reasons not involving .the promptness of notice but putting its objection to payment of the plaintiff’s demand on entirely different grounds it ought not to be heard on this defense after the plaintiff has been put to the expense of a suit. We are not satisfied that the court erred in submitting the question of waiver to the jury.

The judgment is affirmed.


author: Mobbison, J.,

text:
    Pittsburg Gas Engine Company v. South Side Electric Manufacturing Company, Appellant.
    July 20, 1910:

      Evidence — Witness—Statement by expert.

    1. It is reversible error to permit an expert witness to make a statement which rested on nothing to warrant it in the evidence.

      Contract — Sale—Repair of engine.

    2. Where a manufacturer sells an engine and the customer accepts it and a dispute arises as to its running, and the seller agrees for a certain amount to repair it and put it in running order within a period stated and he fails to do so for a considerable time after the expiration of such period, the purchaser is justified in notifying the seller to remove the engine without giving him any further time to make it work. In such a case the burden is not upon the purchaser to show that it was impossible for the engine to be repaired.
    Argued April 22,. 1910.
    Appeal, No. 106, April T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 444, on verdict for plaintiff in case of Pittsburg Gas Engine Company v. South Side Electric Manufacturing Company.
    Before Rice, P. J., Hendebson, Mobbison, Oblady, Head, Beaveb and Pobteb, JJ.
    Reversed.
    Assumpsit to recover the costs of repairing an engine. Before Cabnahan, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment’ for plaintiff for $1,497.19. Defendant appealed.

      Errors assigned (1-24) appear by the opinion of the Superior Court.

      F. C. McGirr, of Marrón & McGirr, for appellant.

      J. S. Ferguson, with him E. G. Ferguson, for appellee.
   Opinion by

Mobbison, J.,

The plaintiff brought suit to recover the sum of $1,479.19, with interest from May 1, 1907, for work and labor done and materials furnished, as alleged, in repairing a certain gas engine. To the plaintiff’s declaration an affidavit of defense was filed.

The first three specifications of error complain of the court for permitting the plaintiff’s counsel to put in evidence the bill of particulars attached to the declaration and also certain exhibits referred to in the second and third specifications. If the defendant’s counsel had seen fit to rely on the alleged errors raised in these specifications and not offer anything on the merits of the case, the said specifications would seem to be serious. But the learned counsel seems to have preferred to offer a large mass of testimony and to try the case on its merits and inasmuch as the learned court only admitted the evidence referred to for a limited purpose, we are not convinced that these specifications ought to be sustained. The first, second and third specifications are not sustained.

We have carefully examined the fourth, fifth, sixth and seventh specifications and we are not convinced that any of them raise reversible error and they are not sustained.

The eighth specification complains of the court for directing Thomas M. Rees, a witness for the defendant, to make an explanation which is quoted in the specification in regard to another engine sold to Joseph Horne & Company. After this statement was made counsel for defendant moved the court to strike it out. This motion was refused and an exception allowed and a bill sealed. We think this statement was irrelevant and incompetent and it cannot now be determined what effect it may have had upon the jury. The eighth specification is sustained.

The ninth and tenth specifications refer to a statement made by W. J. Wooley, a witness for the plaintiff, in regard to how the shaft of the engine might have been bent: “Q. You said it could be done by accident. What do you mean by that?” Objected to as being entirely irrelevant and incompetent. Objections overruled. Exception allowed and bill sealed. “A. Well, they usually have a bar lying around, or hammer or wrench, that might be dropped down and get under the wheel, or in between the wheel, and in that way bend it.” The tenth specification, with exception and bill sealed, is to the refusal of the court to strike the above testimony out. The witness Wooley was on the stand as an expert, but we cannot see that the testimony complained of was anything but a guess. It rests upon nothing to warrant an expert witness in making the statement. But this statement may have had weight with the jury and we think it was error to admit it and error to refuse to strike it out.' The ninth and tenth specifications are sustained.

The eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth specifications are not sustained. In our opinion, when they are considered in connection with the entire charge and the evidence, none of these specifications raise reversible error.

The seventeenth specification is quite lengthy and it is not necessary to quote it here. It refers to the testimony of Mr. Lippert in regard to the time given to the plaintiff to repair the engine and make it work and also quotes from the charge what the court said in that respect. The court said to the jury: “The fact that it [defendant] peremptorily and arbitrarily, without notice to the plaintiff and without notice of a previous intention to do so, notified the plaintiff that it must take the engine out now leaves it with the defendant to satisfy you as a jury that it was impossible to run that engine within a reasonable time. That is the situation, so far as the defendant is concerned, with respect to the running of this engine.” The evidence shows that the engine was to be repaired and put in good order at the holidays and this time was long past when the defendant demanded that the plaintiff should remove the engine. In the circumstances disclosed by the evidence we think the court placed too heavy a burden on the defendant by telling the jury that it must show that it was impossible to run the engine within a reasonable time in order to justify the defense. If the conduct of the plaintiff in respect to the engine, as disclosed by the evidence, indicated that it was reasonable to suppose that the engine could not be made to do its work, then we think the defendant was justified in notifying the plaintiff to remove it. The seventeenth specification is sustained.

We do not think the eighteenth and nineteenth specifications raise reversible error, and they are not sustained. We think the defendant justified in complaining of the excerpt from the charge on which the twentieth specification is based. There was evidence in the case from which the jury might have found that the plaintiff was not entitled to be paid for the work and labor done and materials furnished in the attempt to make the engine do the work it was designed for; that is to say, if the attempt to put the engine in good working condition failed. But the language used by the court, as quoted in this specification, seems to ignore the defendant’s contention and to convey to the jury the idea that the plaintiff was entitled to recover. The twentieth specification is sustained. The twenty-first specification is not sustained.

In view of the length of time that the plaintiff consumed in the attempt to put the engine in working order and the allegation of the defendant that the plaintiff had entirely failed in that respect, we think the twenty-second specification bore too heavy on the defendant. The plaintiff had consumed considerable more time than was specified in the original contract for putting the engine in order, and the evidence shows that the plaintiff must have known that the defendant needed the use of the engine and in the circumstances we think the language used by the court as quoted in this specification borestoo hard against the defendant. The defendant was not bound to satisfy the jury that the engine could not be' repaired. The question that ought to have gone to '.the jury was as to the reasonableness of the action of the defendant in view of all the facts and circumstances disclosed by the evidence. The twenty-second specification is sustained.

The twenty-third specification complains of the court in again casting upon the defendant the burden of showing that it was impossible to make the engine run. If the jury so found, they were told that they might render a verdict for the defendant. “If you do not determine from the testimony that it was not possible to run that engine, then in view of the circumstances the plaintiff is entitled to recover in this case. The claim is $1,497.19, with interest from May 1, 1907.” We think the language above quoted placed entirely too heavy a burden upon the defendant and it is apparent that the last sentence in the quotation, coming at the end of a long charge,' upon a large mass of testimony, was very suggestive. •

We do not think there is any merit in the twenty-fourth assignment. The matter therein complained of was undoubtedly in the discretion of the court below: Blume v. Hartman, 115 Pa. 32; Patterson v. Marine Nat. Bank, 130 Pa. 419; Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290. The twenty-fourth specification is not sustained.

The judgment is reversed and a venire facias de novo awarded.