text:
    Myers v. Alta Friendly Society, Appellant.

      Beneficial associations — By-laws—Certificate of illness — Physician’s certificate.

    Where the by-laws of a beneficial association provide that a member demanding sick benefits shall first present his own certificate, and a certificate from the attending physician, setting forth the date, cause and character of the sickness, and if the sickness continues, he shall at the 'end of every week furnish the attending physician’s certificate, such certificates must be furnished as a condition of receiving sick benefits; but it is not necessary if the member is in a feeble condition that he make out and sign his own certificate. This may be done for him by his physician, his nurse, or any member of his family.
    The by-laws of a mutual beneficial association must, in the very nature of the ease, govern among its members. To those who have associated themselves together, these by-laws are the law by which they are to be governed. They necessarily assent thereto in becoming members. If the by-laws are, in the judgment of any one seeking to become a member, unreasonable and under any conditions impossible of compliance therewith, he has the remedy in his own hands by refusing.to become bound thereby.
    The provisions in the by-laws of a beneficial association for the furnishing of a weekly certificate from the attending physician of a member’s sickness is a reasonable provision, and will be enforced by the courts.
    Where a beneficial association defends a suit against it for sick benefits on the ground that the member had not furnished the association his own and a physician’s certificate as required by the by-laws, and it appears that the member had furnished the certificates in time for one week’s benefits, but not in time for the subsequent weeks for which he claimed, and it also appears that no tender of money for the one week was made to the member, plaintiff is entitled to recover for one week’s benefits, and also for costs.
    Argued Oct. 18, 1905.
    Appeal, No. 187, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1904, No. 412, on verdict for plaintiff in case of Joseph N. Myers v. Alta Friendly Society.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit to recover sick benefits. Before Willson, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial plaintiff’s counsel asked a witness the following question :
    Q. What effect, if any, would such exertion as signing papers have upon his (the plaintiff’s) illness ?
    Objected to. Objection overruled. Exception noted for defendant by order of the court. [1]
    A. The effect of the slightest exertion was to aggravate his condition, and, of course, I cannot say how serious the result would have been, or might have been; it is possible he could have signed such a paper without any detriment, but the chances were all against it I considered.
    The court charged as follows :
    [Gentleman of the jury, this case presents questions of law, which will be settled hereafter. I instruct you to render a verdict for the plaintiff for $41.90, reserving the point whether there is any evidence in the case which would justify a verdict on behalf of the plaintiff for more than $10.00 and interest from April 30, 1904.] [3]
    Verdict and judgment for plaintiff for $41.09. Defendant appealed.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions ; (3) charge as above, quoting it; and (4) in entering judgment on the verdict.

      T. Elliott Patterson, for appellant.
    The society under its contract was entitled to know at the end of every week that the member was under medical treatment, and within all the requirements of the contract, before paying out moneys for the accumulated funds that were paid in according to contract: Dunning v. Mass. Mut. Acc. Assn., 59 Atl. Repr. 535 ; Breneman v. Franklin Beneficial Assn., 3 W. & S. 218; Hand v. Baynes, 4 Wharton, 204; Thompson v. Life Ins. Co., 104 U. S. 252.
    One of the duties of a person who becomes a member of a mutual insurance company is to inform himself of its by-laws, and he cannot escape their force although he may have had no actual knowledge of them: Ins. Co. v. Perrine, 7 W. & S. 348; Rhule v. Acc. Fund, 13 Pa. Superior Ct. 416; Anderson v. Alta Friendly Society, 26 Pa. Superior Ct. 630.
    The reasonableness of the by-law of the defendant society that is sought to be disregarded by the appellee in this case is sustained by abundant authority: St. Mary’s Beneficial Society v. Burford, 70 Pa. 321; Breneman v. Beneficial Association, 3 W. & S. 218.
    In the case at bar, the contract provides that the member must furnish a physician’s certificate to the society, giving date, cause and character of illness, and the reasonableness thereof is fully sustained by the following decisions: Audette v. L’Union St. Joseph, 59 N. E. Repr. 668; Harrington v. Workingmen’s Benevolent Assn., 70 Ga. 340; Dolan v. Court Good Samaritan, 128 Mass. 437; Wittemore v. Sills, 76 Mo. App. 248; McVoy v. Keller, 74 N. Y. Supp. 842; Ramell v. Duffy, 81 N. Y. Supp. 600.

      George Thorn Hunsieker, for appellee,
    cited: Hayes v. Continental Casualty Co., 72 S. W. Rep. 135.
    November 21,1905:
   Opinion by

Beaver, J.,

Tbe defendant is a beneficial association, composed of members voluntarily associated together for mutual benefit and protection, under constitution and by-laws framed and adopted by themselves. The certificate of membership in the society has printed upon the back thereof articles 5 and 6 of the by-laws which prescribe the conditions of membership and also the conditions upon which a member shall become entitled to such benefits as may be mentioned in his application and certificate of membership.

For a proper understanding of the question raised by the defendant in its motion for judgment non obstante veredicto, a verdict for the plaintiff having been directed by the court below, it will be well to quote the entire section 3 of article 6 printed upon the back of the member’s certificate:

“Sec. 3. Any such member who shall through sickness or accident become disqualified from attending to his usual vocation, or other employment or occupation, and shall be under medical treatment for a period of not less than seven days, shall be entitled to receive from the society such weekly benefits or sums of money as may be specified in his certificate of membership. He shall be entitled to such weekly benefits as long as he shall be disqualified from attending to his usual vocation or other employment or occupation, and shall necessarily be under medical treatment, provided, however, that such member shall first present to the society his own certificate and a certificate from the attending physician, who must be a reputable and practicing physician and a graduate of a recognized medical college, which certificate shall set forth the date, cause and character of the sickness or accident, and contain correct answers to all such questions as may be asked in blank certificates to be furnished by the society upon application therefor, and such certificates from the attending physician and member made upon the blank or blanks furnished by the society as aforesaid,, shall be sworn to by such physician and member when a request therefor shall be made by the president or secretary of the society, and unless such certificates, sworn to if required, as aforesaid, and satisfactory to the president or secretary, be first furnished to the society, the member shall not be entitled to and shall not receive any benefits or money whatever from the society. Upon the receipt of such certificates, the member, if entitled thereto, shall receive from the society such weekly benefit or sum as may be specified in his certificate of membership for'and during one week immediately preceding the day on which the said attending physician shall fill-up and make the certificate aforesaid, and the society shall not be liable or required to pay any benefits to such member for more than one week prior to the date of the physician’s certificate aforesaid. And if such member shall thereafter continue to be sick and disqualified as aforesaid, he shall at the end- of- every week during such sickness and disqualification, present to the society a certificate from the attending physician aforesaid, containing answers to such questions as may be asked, or required by the society in the blanks provided for that purpose, and unless such certificate be furnished- as aforesaid, the society shall not be liable or required to pay any benefits or money to such member. And provided further, that no member-shall be entitled to receive more than two weekly benefits during the first six months of his membership, and not more than six weekly benefits during the first year. During the second, third and fourth years, he shall not receive more than- eight such weekly benefits in any one year, and during the fifth year, he shall be limited to ten such weekly benefits. After the fifth year such member shall be entitled, to draw-or receive, continuously or otherwise, any number of such weekly benefits not exceeding forty, it being distinctly understood that no member of the society shall be entitled to receive more than an aggregate of forty weekly benefits during his entire membership in the society. It is further expressly provided, that no member shall be allowed or granted, or entitled to receive, during the first two years of his membership, any weekly sick benefit-or.-money, unless he.shall be wholly, actually and necessarily confined to bed, and have some well defined disease, and he shall in such event be entitled to receive benefits only for and during the time thus confined to bed at the weekly rate specified in his certificate of membership, and not exceeding the number of weeks above mentioned, and during the first two years of membership, no member shall be entitled to benefits for any accident unless it be severe enough to visibly and actually disable the member. No female member shall at any time be entitled to or receive any benefits or money for or during childbirth, or for or on account of any sickness or ailment occasioned by a pregnant state, or for or on account of disease of the uterus and its appendages, or for or on account of any sickness or ailment peculiar to women,or for any sickness or ailment connected or complicated in any way with any exclusively female complaint or disease. And it is further provided, that any officer, physician or duly authorized agent of the society shall have the right to visit, interrogate and examine at any time, any member who shall ask for and claim benefits from the society, and if such officer, physician or agent shall not be allowed or permitted to visit, interrogate and examine such member as aforesaid, then the society shall not be liable or required to pay such member any benefits or money whatever. When a member claiming benefits shall be able to leave the house, he shall not be entitled to and shall not receive any benefits.”

The principal question here is whether the plaintiff is entitléd to recover for four weeks’ sick benefits, without having complied with the requirements of this section 3, in that he did not furnish to the society his own certificate or application and the certificate from the attending physician required by the provisions of said section. It is agreed that the proper blank certificates were furnished in time to entitle him to sick benefits for one week.

No opinion upon the motion for judgment non obstante veredicto was filed and no decree of the court in regard thereto is shown in the appendix of the appellant’s paper-book. We take it for granted, however, that the motion was regularly dismissed, as appears among the docket entries. There is also a memorandum signed by the trial judge: “ And now, August 10, 1905, the court grants the defendant an exception to its dismissal of defendant’s motion for judgment upon the point reserved, non obstante veredicto, and entry of judgment for the plaintiff upon the verdict.” We are not informed, therefore, as to the grounds upon which the defendant’s motion was denied and the judgment upon the verdict entered.

The by-laws of a mutual beneficial association must, in the very nature of the case, govern among its members. To those who have associated themselves together, these by-laws are the law by which they are to be governed. They necessarily assent thereto in becoming members. If the by-laws are, in the judgment of anyone seeking to become a member, unreasonable and under any conditions impossible of compliance therewith, he has the remedy in his own hands by refusing to become bound thereby. The general principle, we take it, is well stated in 2 P. & L. Dig. of Dec. 2180, under “ Beneficial Associations “ To entitle a claimant to sick benefits, he must show affirmatively a strict compliance with the by-laws.”

The plaintiff’s condition, it is true, at the beginning of his sickness was such as rendered it extremely hazardous to have literally complied with the by-law in question, but there is no requirement, as we understand it, that he should write the answers to the questions contained in the statement furnished him, with his own hand, or that he should even write his own name. Conditions may be readily imagined under which that would have been physically impossible, but it was not impossible for his physician, his nurse or any member of his family tp have complied with the conditions, in answering all the questions and in signing the certificate for him and stating the facts which rendered it impossible for him to sign his own name. Such a compliance with the by-laws would have put the society upon inquiry and would have enabled them to make such examination as they may have desired as to his condition, and that seems to be the real object of the requirement as to the certificate of the member himself.

The principle involved herein was early decided in Breneman v. The Franklin Beneficial Association, 3 W. & S. 218, in which “ it was contended that the plaintiff was physically unable to apply for the benefits of the society at an earlier period than he had done; and that on that ground he was entitled to an allowance previous to his application. The court gave judgment for the defendants on the ground that the plaintiff might have made his application for relief through a third person.” Mr. Justice Sergeant, in delivering the opinion of-the court, said : “The case is undoubtedly calculated to excite sympathy and to enlist feelings in favor of the plaintiff. On the other hand, the absolute necessity of some fixed and certain rule on a subject of - vital importance to the funds of the company, as a guide and precedent for future cases, no doubt induced the decision which was made. When brought into court, however, as a legal demand we can only treat it as such. On the present occasion, as on many similar ones, the language of the instruments before us is by no means precise and clear. Yet if we do not adopt the principle that it is only from the time of the application that the right of the beneficiary commences, it would be difficult to discover any rule at all among the various regulations which have been made. One great object of these provisions appears to be, to prevent imposition on the society, either by feigned or trivial sickness, or by disability produced by causes not entitling the claimant to relief. For this purpose it is necessary that the society should have information of the state of the applicant, and have it in their power to visit him and inspect personally his situation, and judge, for themselves, how far he comes within the class of persons entitled t.o relief, or, where he is out of their bounds and cannot be visited, that they should be furnished with something equivalent.” Later on, it is said : “ It is ‘ on application to the stewards of the society,’ that the diseased member is entitled to relief; and though the applicant himself, as in the present case, was so injured as to be deprived of the power of applying, there seems no sufficient reason why he might not have had it done for him by another, according to the forms prescribed in the pamphlet containing the constitution and laws, a copy of which every member, as he has a deep interest in its contents, ought, in common prudence, to have always in his possession.”

Here the by-law in relation to the application and the prerequisites to obtaining sick benefits were printed upon the back of the certificate of membership.

It is not necessary to multiply authorities upon the general proposition that the members of a voluntary organization are bound by the constitution and by-laws thereof. There is nothing here to indicate that the plaintiff did not fully understand, when he joined the defendant society, what the provisions of its constitution and hy-laws were, nor is there a suggestion that he was in any way deceived or fraudulently induced to join the society. He was, therefore, hound by them and could only receive the sick benefits, provided by the society for its members, by at least a substantial compliance with their terms. Neither he nor anyone for him made any attempt at compliance, so far as the first three weeks of his sickness were concerned.

The plaintiff’s testimony shows that he was taken ill March 1, 1904. Notice was sent to the defendant society of his illness and, in consequence of that notice, he received a blank application for sick benefits which, as shown upon the application itself, was dated March B, 1904. It was not received by the society until March 29 and was then approved by I. W. Cooley, presumably an officer of the society, for the amount of $10.00. The plaintiff, therefore, had the blank application sent by the society, in accordance with his own notice, in his possession for nearly four weeks, without any attempt at compliance with the provisions of the by-laws, although, as we have already seen, they were by no means impossible of compliance.

In this view of the case, the first assignment of error, which relates to the admission, under objection, of testimony tending to show the condition of the plaintiff at the time of his sickness, becomes comparatively unimportant. If the court had admitted the testimony, as offered, for the purpose of determining, as a matter of law, the reasonableness of the by-law in which the defendant claimed to be exempt from payment, no harm would have been done, if the defendant’s motion for judgment had been granted, and it is probable that the testimony was admitted with this view. We cannot say, therefore, that it was wholly irrelevant at the time it was offered, although, if a motion had been made by the defendant subsequently to strike it out, it should, we think, have been granted.

The plaintiff not only failed to forward his own application for sick benefits but neglected to comply also with the requirement of the by-laws which provides for the furnishing of a weekly certificate from the attending physician of a member’s sickness. There is no pretense that this was impossible or that it was unreasonable, The benefits are to be paid weekly and if, after the society is informed of the character of the defendant’s sickness and makes the examination which its officers may desire to make and is satisfied that the member is beneficial, it is only reasonable that a certificate from the attending physician should be furnished from week to week, in order to show that the member is still beneficial. The reasoning that applies to the application of the member applies even more strongly to the provision of the by-law in regard to the physician’s certificate.

There remains but a single question for consideration, which is thus stated by the appellant: “ Whether, where the society was ready and willing and offered, before suit was brought, to pay the plaintiff for one week immediately preceding the date of the physician’s certificate, as the by-law provides, and again offered (it) to him in the affidavit of defense and at the trial,' and the plaintiff refused to accept the same or to enter judgment for that amount, he is entitled to the said one week’s benefits.” There was no tender of the money to the plaintiff at any time, and in his testimony he denies that there was even an offer to pay him that amount. The case of Westmoreland &c. Gas Co. v. DeWitt, 130 Pa. 235, is not in any way analogous. In that case the money was actually present and the defendant admitted he had said that it would be altogether unnecessary to show the money. He doubtless could have taken judgment upon the affidavit of defense for-the amount allowed, although there is no tender of judgment therein, and taken issue with the defendant for the remainder, but he was not bound to do so. An offer of judgment for one week’s benefits at the trial would, if accepted, have prevented the plaintiff from proceeding for the balance of the amount claimed by him. If the defendant had wished to stop costs, it could have paid the amount admitted to be due into court, but it did not do so and chose to assume the risk of the final result. We are of opinion, therefore, that the plaintiff is not only entitled to judgment for one week’s benefits but also for costs.

Upon consideration of the whole case, we are of opinion that the plaintiff was bound by the provisions of the by-laws contained in the third section of the sixth article, requiring him to make application for sick benefits immediately after the receipt of the blank sent him by the society, and that he was also bound to furnish a certificate of his physician weekly. Inasmuch, however, as both these documents were furnished in time to entitle him to one week’s benefits, judgment should be entered for the sum of $10.00, with interest from March 29, ■1904.

The judgment of the court below is, therefore, reversed and set aside and judgment is now entered for the plaintiff against the defendant'for the sum of $10.49, as of the date of the verdict — January 20, 1905 — together with interest thereon from that date.


source: Caselaw Access Project

author: Beavek, J.,

license: Public Domain

text:
    Jordan v. Philadelphia, Appellant.

      Negligence — Municipalities—Defect in sidewalk — Question for jury.

    In an action by a woman against a city to recover damages for personal injuries sustained by a faE on a sidewalk, the evidence showed that the plaintiff, although having some knowledge of the condition of the sidewalk ^at the place where she was injured, had not frequently passed in that direction. On the evening of the accident, accompanied by some children, she passed over the sidewalk safely, and noticed nothing unusual. On her return after dark, the street being dimly lighted, she trod upon a brick which turned under-her weight and fell backward and dislocated or fractured the lower-vertebra of the spine. A neighbor testified that the sidewalk was in bad condition of which the police had been frequently notified, and that the witness herself on a number of occasions arranged the bricks, in the sidewalk, so as to make the passage thereon safe, but that-the boys in the neighborhood carried the bricks away. There was also testimony that there was water in the street at the time of the accident. Held, that the case was for the jury, and that a judgment and verdict for plaintiff should be sustained.
    .Argued Oct. 18, 1905.
    Appeal No. 234, Oct. T., 1904, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1904, No. 1339, on verdict for plaintiff in case of Alfonso Jordan- and Rosa Jordan, his wife, v. City of Philadelphia.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Willson, P. J.
    The facts are stated-in-the opinion of the Superior Court.

      The court refused binding instructions for defendant.
    Verdict and judgment for Alfonso Jordan for $100 and for Rosa Jordan for $1,400.

      Error assigned was in refusing binding instructions for plaintiff.

      Charles E. Bartlett, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant,
    cited: Hentz v. Somerset Boro., 2 Pa. Superior Ct. 225 ; Decker v. East Washington Boro., 21 Pa. Superior Ct. 211; Snyder v. Penn. Township, 14 Pa. Superior Ct. 145; Township of Crescent v. Anderson, 114 Pa. 643; Robb v. Connellsville Borough, 137 Pa. 42; Hill v. Tionesta Township, 146 Pa. 11; Haven v. Bridge Co., 151 Pa. 620; Smith v. New Castle, 178 Pa. 298; Boyle v. Boro. of Mahanoy City, 187 Pa. 1; Fleming v. City of Lock Haven, 15 W. N. C. 216.

      J. O. 'Levi, of Bamberger Levi, for appellees,
    cited: Musselman v. Hatfield Borough, 202 Pa. 489; Altoona v. Lotz, 114 Pa. 238; Easton Boro. v. Neff, 102 Pa. 474; Mintzer v. Greenough, 192 Pa. 137 ; Shaffer v. Harmony Borough, 204 Pa. 339.
    November 21, 1905 :
   Opinion by

Beavek, J.,

The refusal of the court below to affirm the point, that “ Under all the evidence, the verdict must be for the defendant,” is the only alleged error complained of in this case. The ground upon which such instruction was asked was that the plaintiff was guilty of contributory negligence and that the trial judge should have so instructed the jury.

As we view the evidence, this was not a question of law. There were elements of doubt in regard to it which made it a question of fact for the jury. “ Whenever there is reasonable doubt as to the inference to be drawn from the facts established by the testimony, the question of negligence is necessarily for the jury:” Shaffer v. Harmony Boro., 204 Pa. 339. Negligence on the part of the defendant is not denied here, and could not be, under the circumstances. Was there reasonable doubt as to the inference to be drawn from the facts established by the testimony which carried the case to the jury ?

The plaintiff was a woman of unusual domestic habits. Although residing in the neighborhood for several months and having some knowledge of the condition of the sidewalk at the place where she was injured, she had not frequently passed in that direction. On the evening of the accident, accompanied by the children of her brother, she passed over the sidewalk in question safely and noticed nothing unusual there. On her return after dark, the street being dimly lighted, she trod upon a brick which turned under her weight, fell backward and dislocated or fractured the lower vertebra of the spine. It was testified by a neighbor that the sidewalk was in bad condition, of which the police had been frequently notified ; that she herself, on a number of occasions, arranged the bricks hr the sidewalk, so as to make the passage thereon safe, but that the boys in the neighborhood carried the bricks away. Whether or not she had so arranged the bricks on this particular occasion does not appear, but, if such had been the case, the plaintiff might easily have passed over them safely and with an appearance of their being safe, and, upon her return, if the bricks were not regularly laid, might have met with the accident, occasioned by the turning of a brick, concerning which she testifies and of which she complains, without the slightest negligence on her part. Assuming that the inferences to be drawn from the facts were doubtful, they were for the jury.

The plaintiff also testified that there was water in the street, so that it was unsafe to step down into it, even if she had known that the sidewalk was unsafe, but it does not seem to us that the case reached the stage at which it was necessary to determine whether or not she was bound to take some other route than the one upon which she was going in returning to her home, and that question is, therefore, unimportant. At the most it was a disputed question.

The general instructions of the trial judge in the court below were full and of such a character that the defendant had no right to complain of them. They were such that it is not to be wondered at that the only ruling of which the defendant complains was the refusal to instruct the jury to find for it. In this there was no error.

Judgment affirmed.


author: Beater, J.,

text:
    Addis v. Hess, Appellant.

      Negligence — Infant—Piling lumber on highway — Contributory negligence of parent.

    Where a builder under a permit from the city authorities piles building materials on the cartway of an asphalted street, in so negligent a way that the pile falls and kills a boy four years old who is playing on the sidewalk, the builder will be liable in damages for the death of the child.
    In such a case where it appears that the father of the child was a workman, practically unable to exercise direct and immediate control of the actions of his children, and that at the time of the accident the boy was playing with other children, and with a sister seven or eight years of age, and that the child was not on the cartway, the father cannot be convicted of contributory negligence.
    Argued Oct. 20, 1905.
    Appeal, No. 120, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1903, No. 1783, on verdict for plaintiff in case of Alice Addis, a minor, by her father, Charles A. Addis, individually, and Charles A. Addis, father of Robert D. Addis, a minor, deceased, v. Henry E. Hess or Harry E. Hess.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ,
    Affirmed.
    Trespass to recover damages for the deatb of a child. Before McMichael, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $212. Defendants appealed.

      Error assigned among others was in refusing binding instructions for defendants.

      J. Quincy Hunsiclcer Jr., for appellant.
    No inference of neglect can arise from the mere occurrence of the accident: Zahniser v. Torpedo Co., 190 Pa. 350; Alexander v. Water Co., 201 Pa. 252; Snodgrass v. Carnegie Steel Co., 173 Pa. 228.
    Where a parent is negligent, he cannot recover for the loss of services of his child. It is well settled that a child of tender years is held only to the exercise of that degree of care and discretion ordinarily to be expected of a child of that ag’e : Smith v. O’Connor, 48 Pa. 218 Kay v. Penna. Railroad Co., 65 Pa. 269 ; Glassey v. Ry. Co., 57 Pa. 172; Ry. Co. v. Pearson, 72 Pa. 169; Smith v. Ry. Co., 92 Pa. 450; McCool v. Lucas Coal Co., 150 Pa. 688; R. R. Co. v. Long, 75 Pa. 257.

      Jay R. Grier, with him James R. Grier, for appellee.
    The materials if not properly placed on the street, and injury resulted, with negligence on appellant’s part, from not properly protecting the rights of the public passing thereby, renders the appellant liable for such carelessness: North Manheim Township v. Arnold, 119 Pa. 380; Mallory v. Griffey, 85 Pa. 275; Rachmel v. Clark, 205 Pa. 314; Hydraulic Works Co. v. Orr, 83 Pa. 332; Busse v. Rogers, 64 L. R. A. 183.
    November 21,1905 :
   Opinion by

Beater, J.,

The defendant was erecting a block of houses on the east side of Wanamaker street, which runs north from Arch, between Fifty-eighth and Fifty-ninth streets, in' the city of Philadelphia. He had a permit from the city authorities to use the street, within certain limits, for piling materials for his building operation. So far as appears by the evidence the lumber, which was part of his building material, was dumped or piled within the limits allowed. For the purposes of this case, therefore, the defendant was legally in possession of that portion of the street occupied by his lumber pile, and this, as we understand the position of the plaintiff, is not denied. The plaintiff lived on North Fifty-eighth street, his lot running west to Wanamaker street, in the immediate vicinity of the building operation of the defendant. Two of his children— Alice, whose age was between seven and eight years, and Robert, who was between four and five years of age — were playing with other children of the neighborhood upon the sidewalk near the pile of lumber above referred to, which was about fourteen inches or thereabouts from the curb. While the children were at play, apparently kneeling upon the curb, with their heads and upper parts of their bodies extended, playing with sand which had washed down from the mortar bed, the lumber pile, in some unknown way, toppled over, catching the children in its fall and burying the upper parts of their bodies under the lumber, with the lower extremities upon the sidewalk, and, as one of the witnesses expressed it, with their stomachs upon the curb. The little fellow, Robert, was buried under the lumber and taken out dead or dying, so that he breathed his last in a few minutes after being released. His older sister was bruised and otherwise injured, and this suit was originally brought to recover for the injuries to the one and the death of the other child. As the issue was ■finally made up and tried, however, the damages claimed were confined to those occasioned by the death of Robert.

Although the assignments of error are eleven in number, covering the adverse answers to the sixteen points submitted .by the defendant for the guidance of the court below, the real question, as stated and argued, is the refusal to answer the first ■point which was, “ Under the evidence in this case the verdict must be for the defendant,” and this, first, upon the ground that there was no sufficient evidence of the defendant’s negligence, and, second, that there was evidence of the plaintiff’s contributory negligence. Of these in their order:

■1. Was the defendant negligent? As was held by the court below he had a legal right to the use of the .portion of the .highway occupied by him for depositing and piling his building materials, provided he used the same in a prudent and careful manner and stored his materials in such a way as not ■to endanger the life or the person of those who might have an .equal right to the enjoyment of the highway. There was evidence to show that the lumber pile in question was not safely piled. The evidence of one witness was that, as she saw it from a house in the immediate neighborhood, the pile was top-heavy. It is to be remembered also that the street was graded, curbed and asphalted, in consequence of which it would be impossible for the lumber to make any bed for itself by making any impression upon the hard, smooth surface of the street, and that it would naturally lean toward the curb, unless a foundation had been prepared for it in such a way as to make át perpendicular. There is no evidence of any such preparation. On the other hand, it appeared that the lumber had been dumped from the wagon or wagons which brought it.there, and bad been loosely piled in such a way as the superintendent testitled seemed to him safe. There was, therefore, evidence to be submitted to the jury on the question of the defendant’s negligence in piling the lumber.

2. Was the plaintiff guilty of contributory negligence ? It is admitted, of course, that the child could not be guilty of such negligence, but it is claimed and argued very strenuously that the plaintiff, by permitting his child to play upon the street, either upon the sidewalk or the pavement, manifested such lack of care in controlling his children that he is guilty of such contributory negligence as would prevent his recovery, and that this should have been so declared as a question of law.

We have no desire, nor is it necessary, to enter upon the debatable ground of Hydraulic Works Co. v. Orr, 88 Pa. 332.. That case has been much commented upon, and has lately been discussed and criticised in Duffy v. Sable Iron Works, 210 Pa. 326. It was a case in which a child was killed by a falling drawbridge or incline plane upon the premises of the defendant near a public highway, the children playing thereon having strayed through an open gate into the defendant’s inclosure, and the accident having there happened. The debatable ground is as to the right of recovery, where the accident is upon private property, those who were injured being in fact trespassers. We refer to it now, however, for the recognition which is therein made and which has been followed since, that children have a right upon the public highway, under certain circumstances, even for play, and that those who use the highway and, as was held in that case, even those who have property abutting on the highway, are bound to take notice of the instincts of children and their propensity, from curiosity or otherwise, to play and follow their natural impulses.

Without going extensively into the consideration of the authorities, cited by both the appellant and the appellee, a reference to two or three late cases will perhaps be all that is necessary.

Kessler v. Berger, 205 Pa. 289, was a case in which a lad, on his way from a ball game, sap down upon a board in the neighborhood of a pile of lumber in the public street for rest, upon whom the lumber subsequently fell, seriously injuring him. .The court below directed a verdict for the defendant, and the contention by the appellee on appeal was “ that the boy was a lounger, and was, therefore, not making a legitimate use of the street at the time he was injured.” Mr. Justice Mestrezat, who delivered the opinion reversing the court below, goes on to say : “ The boys who were called as witnesses testified that they had finished the game of ball before they took their seats near the board pile to cool off. They evidently had then left the lot, and the inference may well be drawn that, at the time of the accident, they were en route home and had made a brief stop to rest from the fatigue incident to the game in which they had just been engaged. ... In such a case, where the facts are disputed, it is for the jury, under proper instructions, to determine whether the traveler is making a lawful use of the highway at the time he is injured.”

The facts in that case are somewhat different from those developed in the testimony in the case which we are considering. The pile of boards there was said to be illegally in the highway. Here they were there by permit from the city authorities, and are presumed to have been there of right, but the question as to whether or not the right given to the builder was properly exercised raises the question of negligence as much as the illegal occupancy of the highway in the other case. The case here is also differentiated from that, in that the injury there was upon the roadway. Here the children were not in the roadway but upon the sidewalk, where they had an undoubted right to be, even for the purposes of childish play and diversion, if they did not thereby interfere with the use of the highway by pedestrians who had the right to use it.

We have also the late case of Del Rossi v. Cooney, 208 Pa. 233, which was an action to recover damages for the death of a child four years old run down by a wagon in a street, in which it was said: “ Parents owe the duty of protection to their child of tender years and they must exercise care to prevent it being exposed to danger, in order to relieve themselves from the charge of contributory negligence if the child is injured through the fault of another. When, therefore, a parent 'seeks to charge a negligent defendant with injury to his child, it must appear that he has used the care towards it demanded of him by the circumstances. The care thus required, however, is only such as persons of reasonable prudence, of the same class and with the same means, ordinarily exercise and deem adequate to protect their children from| danger.”

In Evers v. Phila. Traction Co., 176 Pa. 376, it appeared that a child aged four years, in company with his brother, aged about eight, was permitted by the mother to go to the coal box on Meade street, where there was no railway track. When she had completed her motherly duty to the second'child (washing and dressing it) and one of the daughters had returned from church, she sent for both children. The eldest returned; the deceased one refused. She immediately sent again for him but, before he was reached, ¡the caprice and heedlessness of childhood had led him to Front street, where he was killed by a trolley car. In that case Mr. Justice Dean says: “ It was not for the court to say, from! this evidence, the parents were negligent. We think the following instruction of the learned judge of the court below on tjhis evidence was all that defendant had the right to ask: £ It is the duty of parents to look after their children of tender years and not to turn them out amid the dangers from accidents which occur upon crowded streets and where trolley cars are running about, filled with the suggestions of danger to the lives and limbs of children. They ought to exercise reasonable and proper. care and one of the questions you are called upon to determine is as to whether or not these parents did exercise such due care in looking after this child.’ ”

The case here was we think also a question for the jury. The plaintiff was in humble circumstances, leaving his home at 6 o’clock in the morning and returning at five in the evening, and, therefore, practically unable to exercise direct and immediate control of the actions of his children. The child, who was killed, was with his older sister, who was between seven and eight years of age. They were playing with other children of the neighborhood. They were not in the roadway. They were upon the sidewalk engaged in an almost universal pastime of children — playing with sand which had washed down from a mortar bed or from a pile of sand in the roadway, used in making mortar, and, whilst thus engaged, leaning over the' curb, the pile of lumber, without any act on their part and apparently without human intervention, fell upon them, killing the boy and imprisoning the sister and other children who were with her under the lumber, inflicting injuries of greater or less severity. Negligence is the want of care according to the circumstances and we think the question of contributory negligence, under the circumstances, as developed by the testimony at the trial, was properly left to the jury, under instructions which met the requirements of the case.

This case is to be distinguished from the line of cases of which Glassey v. Hestonville, etc., Pass. Ry. Co., 57 Pa. 172, is an example, in which it is held to be contributory negligence to knowingly permit a child to be on. the street with trolley or railroad lines thereon, where cars are likely to pass at any moment where there is an entire absence of parental control. The cases, therefore, cited by the appellant, relating to the contributory negligence of parents in accidents caused by trolley and railroad companies, have no application here. In some of them, however, notably Pittsburg, etc., Ry. Co. v: Pearson, 72 Pa. 169, and P. & R. Railroad Co. v. Long, 75 Pa. 257, the question of contributory negligence was held to be for the jury, and in Smith v. Hestonville, etc., Pass. Ry. Co., 92 Pa. 450, and McCool v. Lucas Coal Co., 150 Pa. 638, the children injured were engaged in a hazardous employment to which the parents gave their assent and it was, therefore, held that they had no right to recover. One of the. reasons why the children of the plaintiff here were permitted to play upon the rear of his lot was that there was no danger from the cars on Wanamaker street. The case throughout shows at least an honest effort at parental control and, in view of all the cases, we cannot see that the court below would have been justified in ruling, as a matter of law, that the plaintiff was guilty of contributory negligence. The assignments of error are, therefore, overruled.

Judgment affirmed.


author: Beaver, J.,

text:
    Altoona Concrete Construction and Supply Company v. Knickerbocker Contracting Company, Appellant.

      Affidavit of defense — Sale—Description of items — Insufficiency of statement.

    In an action of assumpsit to recover for lumber and building material sold and delivered, a statement of claim is not such as to require an affidavit of defense, where the statement, as to a very large number of the items, fails to set forth the kind, quality and condition of the material furnished, or the sizes of various doors and window frames alleged to have been sold and delivered.
    Argued Oct. 24, 1905.
    Appeal, No. 5, Oct. T., 1905, by defendant, from order of C. P. Blair Co., Oct. T., 1904, No. 50, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Altoona Concrete Construction and Supply Company v. Knickerbocker Contracting Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    The opinion of the Superior Court sets forth the averments of the statement of claim, and of the affidavit of defense.
    The court made absolute the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Thomas H. Gtreevy, for appellant,
    cited : Moore v. Smith, 81 Pa. 182; Gausler v. Bridges, 18 Pa. Superior Ct. 646.

      J. S. Leisenrimg, for appellee.
    November 21,1905:
   Opinion by

Beaver, J.,

This appeal is from the judgment of the court below, entered for want of a sufficient affidavit of defense.

The first item in the plaintiff’s statement of claim is “June 2. 160 Pcs. 2x8-14........$53.80.”

There are ten or twelve similar entries under different dates. If “ Pcs.” is an abbreviation for pieces, of what were they pieces ? Assuming that they were lumber, although the statement claims for goods, wares and merchandise, etc., delivered, what kind of lumber — hemlock, pine, oak, maple, walnut or mahogany ? What information is there upon this subject in the items referred to ? If lumber, was it dressed' or undressed ? The defendant had a right to know definitely the kind, quality and condition of the materials furnished.

The second item in the statement, under the same date as the first, is “ 3 door frames 2-6 X 6-8.”

If it was necessary or important to give the sizes of the frames thus charged the same information should have been given as to all other frames contained in the statement, and yet there are twenty-two items of a similar charaeter.in which the size is not given and no information whatever as to kind or quality. In a number of other items, relating to door and window frames, the sizes are given and, in this way, the defendant was informed, at least in a measure, as to their character, and would be able to determine whether the prices charged were reasonable and just and the usual price charged for similar articles, or whether they were excessive and above the market price.

Under June 2, there is a charge of 100 feet hemlock boards $18.00. Upon the same date there is a charge of 800 feet hemlock boards $14.40. This would, indicate that hemlock boards were $18.00 a thousand. Should the item of 100 feet be 1,000 or, if 100, should the price be $1.80 ? How could the defendant tell ? There is either an “ 0 ” too few in the number of feet or one too many in the price.

In the defendant’s affidavit of defense it is said: “ Affiant is unable to state what they owe the plaintiff, for the reason that many of the charges for material do not specify the kind of material, hence he is unable to state whether or not the same are correct.” This would seem to be a good reason for not making a specific affidavit to the items referred to. In this respect we think the statement was insufficient. It is true the defendant could have ruled the plaintiff to file a more specific statement, but it is the business of the plaintiff to file one which is sufficient and, when insufficient, an affidavit of defense is not required.

To show that this is not a technicality, there appears, under date of June 8, “8 Pcs. 1 7/8X5-12, W. P., S. 4. S.,” which we interpret to mean that there were eight pieces, one and seven-eighths inches by five inches, by twelve feet, of white pine, surfaced on four sides. A similar charge is immediately below it. If it was necessary to inform the defendant by this particular description what those pieces were, why was it not equally necessary to inform him in the same way of all the items to which we have referred and concerning which there is no description whatever ?

As to the items which contain something of description, the defendant has filed his affidavit that the prices charged are unreasonable and excessive and that the prices named by affiant are fair and reasonable market prices for said items.

Assuming for the moment that the defendant was bound to file an affidavit of defense, how could that affidavit be made more specific than it is ? True, he might have added the difference between the prices charged and those which he admits were correct and have stated the difference between the amount ' of the bill and the amount so determined in definite figures, but that still left the question of uncertainty as to the lumber, if it was lumber, concerning which there is no description and the frames as to which no size is given, as to the price of which he is uncertain. As we understand the affidavit, the defendant admits the delivery of the articles referred to but, so far as he is able to determine the fair price, defends as to the price. It was impossible for him, therefore, to have determined exactly what he was willing to give judgment for. But in any event, that was a matter of mere calculation and the maxim, “ That is certain which is capable of being made certain ” applies. Whether defendant’s attorney furnished such a calculation at the argument does not appear by the record, but certain it is that he could have been required to furnish it.

The affidavit was made by the defendant’s superintendent, on behalf of the company, the person on whom the summons was served. He was presumably what the name implied — the practical manager of its operations — and as such naturally knew more of its affairs than any of those technically called officers, if the defendant was a corporation. We see no difficulty, therefore, either as to the person making the affidavit or as to its form, if the affidavit was required, but we are of opinion that the statement was not such as required an affidavit of defense. Whilst it might be called in one sense a concise statement of the plaintiff’s claim, it was rather too concise and not such a statement as conveyed to the defendant a full knowledge of what the claim, as to its several items, was for, and was not what we have often said a statement of claim must be, self-sustaining. For both of these reasons, we think the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense should have been discharged.

The-judgment is reversed and a procedendo awarded.


text:
    Miller v. Buffalo and Susquehanna Railroad Company, Appellant.

      Railroads — Bridges—Damages to landowner — Obstruction of stream — Waters.
    In an action of trespass against a railroad company to recover damages to land caused by the obstruction of a stream, it appeared that plaintiff’s predecessor in title obtained damages for the land taken by the railroad company for its right of way. At the time the railroad was built there was a bridge across a stream on the land. The bridge had vents for the water of about fourteen feet each in width. Subsequently to the award of damages, and prior to the time when plaintiff acquired title, the railroad company caused bents or trusses to be placed under the bridge to sustain it, in such a way that the outlet for the water was reduced from fourteen feet to seven feet where one bent was erected between, the piers, and four feet and a fraction where two bents had been so constructed. There was no evidence that the bents were constructed in a faulty or negligent manner, as far as their mechanical construction was concerned. The evidence showed that the injuries of which plaintiff complained were caused by the backing of the water of the stream produced either by the lodging of ice, or the accumulation of flood debris against the piers and bents of the bridge, and that if the opening in the piers had been as they were originally constructed there would have been room for the free passage of the water, and the ordinary accumulation of drift as they were allowed to pass prior to the erection and construction of the bents and trusses. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 25, 1905.
    Appeal, No. 104, Oct. T., 1905, by defendant, from judgment of O. P. Potter Co., March T., 1904, No. 57, on verdict for plaintiff in case of Charles O. Miller v. Buffalo & Susquehanna Railroad Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before Ormerod, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $819. Defendant appealed.

      Errors assigned are various instructions sufficiently set forth in the opinion of the Superior Court.

      W. I. Lewis, with him Arch. E. Jones and It. R. Lewis, for appellant.
    No recovery can be had in the present action for injury resulting from the construction and location of the defendant’s road, as this was settled by the view appointed to assess damages : Hoffer v. Pennsylvania Canal Co., 87 Pa. 221; Dorland v. East Brandywine & W. R. R. Co., 46 Pa. 520; Hoffman v. Bloomsburg, etc., R. R. Co., 143 Pa. 503; Setzler v. Penna. S. V. R. R. Co., 112 Pa. 56.

      W. K. Swetland, for appellee,
    cited: Pitts. Ft. Wayne, etc., Ry. Co. v. Gilleland, 56 Pa. 445; Berninger v. Ry. Co., 203 Pa. 516; Baltimore & Ohio Railroad Co. v. Sulphur Spring Independent School District, 96 Pa. 65; Brown v. Pine Creek Railway Co., 183 Pa. 38.
    November 21, 1905 :
   Opinion by

Beaver, J.,

The defendant company, in the year 1898 and prior thereto, maintained a bridge which crossed the east fork of the Sinnemahoning- creek diagonally. After the erection of this bridge, the predecessor in title of the plaintiff, upon petition and view, obtained damages for the right of way through the property now occupied by the plaintiff. The bridge, of which complaint is made, was then in existence. It' was shown by one of the viewers that no bents or trusses were then erected. The bridge, as originally constructed, had at least four vents or outlets for the water of about fourteen feet each in width. Subsequently to this view and prior to the time when the plaintiff purchased the property which he now occupies and for damages to which he makes his claim, because of the negligence of the defendants, the bents or trusses placed under the bridge to sustain it were constructed in such a way that the outlet for the water was reduced from fourteen feet to seven feet, where one bent was erected between the piers, and to four feet and a fraction where two bents had been so constructed.

Although the declaration claims that the plaintiff suffered damage, because the bridge of the defendant was negligently, unskillfully and wrongfully constructed, it does not specifically allege the particulars as to the negligent, unskillful and wrongful construction. Under the evidence,' it would apply undoubtedly as well to the erection or construction of the bents, which were placed in the stream subsequent to the original construction as to the original erection of the bridge. In reference to this the court said: “Now the negligence, which is alleged to be the cause of the damage, sustained by the plaintiff in this case, is the faulty construction of this bridge. I say to you, as a matter of law, that any damages which were sustained by the plaintiff, prior to the erection of these bents that have been testified to, cannot be recovered in this action.” Everything, therefore, relating to the original construction of the bridge was eliminated from the case.

The appellant, in its statement of the question involved, in its history of the case and in its argument, proceeds upon the assumption that the bents or trusses placed between the abutments and piers of the bridge, as originally constructed, were not part of the construction, and so practically begs the entire question involved in the case. This is apparent from the statement of the question involved: “ Where faulty, negligent and unskillful construction of a railroad bridge is alleged, can recovery be allowed upon the mere fact that injury occurred, without any evidence of faulty, negligent or unskillful design or construction ? ” There is no claim for and no evidence of any damages prior to the erection of the bents between the abutments and piers. It is to be -noted that the piers were not at right angles with the course of the stream, the bridge, as already intimated, crossing it diagonally. The same is true of these bents or trusses. They were composed of twelve-inch timber set, as were tbe piers, diagonally across the stream. Instead, therefore, of there being fourteen feet of free water way between the abutments and piers, as the bridge was originally erected, that clear space was divided either by two or by three, depending upon whether there were one or two bents between the abutments and piers aforesaid. Not only so but the diagonal position of the bents made this space of less avail than it would have been, if they had been at right angles with the current of the stream. It was impossible, therefore, for the court to affirm the defendant’s first and second points which were based, as is alleged in the argument, upon the proposition .that repair is not construction and that, because repairs were not named in the declaration, therefore, the plaintiff could not recover. There is nothing said in the declaration about original construction, and whether, therefore, the construction referred to is original or subsequent to the first erection of the bridge does not appear, but, in either event, a recovery can be had in our opinion, under the declaration.

The court refused to affirm the fourth point of the defendant, this refusal constituting.the third assignment of error, for the same reason.

The appellant argues that the portion of the general charge of the court quoted by us at the beginning of this opinion was at variance with the answers to its points and says : “We ask this court to note that, if the law was correctly stated in this point (the defendant’s fourth point), that it applied as well to the rebuilding or repairing of this bridge as it did to the original construction, and there was no more evidence that these bents were faulty or negligently constructed than there was that the whole bridge was faulty or negligently constructed.” So far as the mere mechanical construction of the bents was concerned, it is true that there is no evidence that they were faulty or negligently constructed. They were probably mechanically well done and of good material, but it requires little argument to show that the negligent construction consisted not in the framing of the bents before they were placed in the stream, but in their being placed under the stringers of the railroad track in such a way as to make them a part of the bridge and thereby lessen the open passage for the water and flood debris which came down the stream in ordinary flood stages. The common-sense construction of the statement of claim, taken in connection with the testimony as it was developed in the course of the trial, was that what may have been a good mechanical construction before it was placed in the stream became a nuisance after it was so placed there in connection with the bridge and, therefore, became negligent and faulty construction. There does not seem to be any principle involved here which needs elaboration or the citation- of authorities. The whole case depends, from the appellant’s standpoint, on the play upon the word construction, which we think we have shown has no solid ground upon which to rest.

There were disputed questions of fact as to the amount of the loss and the causes of it which were properly left to the jury and about which there is no special ground of complaint.

' There was abundant testimony to show that the damages, of which the plaintiff complained, were caused by the backing of the water of the stream, produced either by the lodging of ice or the accumulation of flood debris against the piers and bents of this bridge and that, if the openings between the piers and abutments had been as they were originally constructed, there would have been room for the free passage of the water and the ordinary accumulation of drift as they were allowed to pass prior to the erection and construction of the bents or trusses.

The case throughout was one for the jury. The court, therefore, could not have affirmed the defendant’s fifth point that, under all the evidence and under the pleadings in the case, the plaintiff cannot recover.

Berninger v. Sunbury, etc., Ry. Co., 203 Pa. 516, is not in any way conclusive of this case. There the vent for the water was twice the width of the stream, and declared by the Supreme Court that it was clear and indisputable from all plaintiff’s testimony that the vents in the bridge were of ample capacity to pass any ordinary spring freshet, and the ordinary ice formation upon the waterway.

As to all the other assignments of error, covering the answers to defendant’s points and the general charge, the objections of the appellant can all be traced to the single root already fully discussed, from which the entire contention springs that the bents or additional support for the superstructure of the bridge were not construction. As we take the same view of this question which was taken by the court below, we cannot, of course, sustain any of the assignments of error. They are all overruled.

Judgment affirmed.


text:
    Reams v. Yeager, Appellant.

      Sheriff’s sale — Proceedings to obtain possession — Justice of the peace— Jurors — Act of May 24, 1878, P. L. 134.
    Where a proceeding is instituted before a justice of the peace to recover possession on a sheriff’s deed, and six jurors are summoned, but before the jurors are sworn, the defendant files an affidavit that he does not claim under the defendant in the execution, and the proceedings are thereupon certified to the court of common pleas, the latter court has jurisdiction to hear and determine the case, although the act of May 24, 1878, which provided for six jurors instead of twelve, is unconstitutional.

      Sheriff’s sale — Lease—Rentals.
    Where judgment is entered against an owner of land and subsequently the owner leases the land to another, and thereafter a sheriff’s sale takes place under the judgment, the lessee is bound to respond to the purchaser at the sheriff’s sale for the rent of the land from the date of the confirmation of the sheriff’s deed.
    Argued Oct. 25, 1905.
    Appeal, No. 110, Oct. T., 1905, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1903, No. 217, for plaintiff on case stated in suit of David Reams v. D. B. Yeager.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Case stated on certificate of justice of-the peace.
    Smith, P. J., filed the following opinion:
    This case came into the court on certificate from E. Fred Yosburg, Esq., justice of the peace at DuBois, Pennsylvania, said case having arisen before said justice by summary proceedings to obtain possession, under the act of June 16, 1836, as amended by Act of May 24, 1878, P. L. 134. Said amendment act of May 24, 1878, provides that the said summary proceedings shall be conducted before one justice instead of two and before six jurors instead of twelve, and in this case the writ issued by the justice commanded the sheriff to summon six jurors and the return of the sheriff shows that six jurors were summoned to appear before said justice on March 24,1903. On said return day, March 24, 1903, at the time set for hearing and before the jury were sworn, the defendant, D. B. Yeager, appeared and filed an affidavit setting up that he did not claim under the defendant in the judgment and execution by which the property was sold but by a different title, etc., and entered bail in the sum of $200, with sureties, as provided by said act of assembly. Whereupon the case was duly certified by said justice to the court of common pleas of Clearfield county.
    As appears by the case stated, the facts agreed upon are, that judgment was obtained by David Reams against Jessie Howat on September 7, 1902, upon which judgment execution was issued and the property in dispute levied upon and sold by the sheriff to David Reams, plaintiff in this case. The sheriff’s deed for said property was acknowledged and dated December 15, 1902. On December 16, 1902, David Reams, the plaintiff, gave notice to D. B. Yeager, tenant in possession of said property and defendant in this case, demanding possession of said premises within three months. The- said defendant, D. B. Yeager, refused to remove therefrom. Whereupon, on March 19, 1903, this proceeding was commenced before the said E. Fred Vosburg, a justice of the peace. The defendant, D. B. Yeager, according to the case stated, came into possession of said premises October 1, 1902, by lease from Jessie Howat, defendant in the judgment above recited, at a rental of $12.00 per month for a period of one year, and was in possession under said lease at the time of sale and remained in possession until on or about October 1, 1903. ■ Although the defendant made affidavit at the time fixed for the hearing, on March 24, 1903, that he did not claim under the defendant as whose property the same was sold but by a different title, it now appears by the case stated that this was a mistake and that he was in fact lessee of Jessie Howat by lease dated three days after the entry of the judgment of David Reams against Jessie Howat. No defense is set up by the defendant on the merits and the only defense urged by the counsel for the defendant is, that, the proceedings commenced' by plaintiff, David Reams, against D. B. Yeager, defendant, before E. Fred Vosburg, was under the amendment act of May 24, 1878, by virtue of which act the justice summoned only six jurors instead of twelve. Counsel for defendant alleges the unconstitutionality of the act of May 24, 1878, in so far as the second section thereof is concerned, providing for the selection of six jurors instead of twelve, and refers to the case of Moore v. Moore, 23 Pa. Superior Ct. 73, to • sustain said contention. It is clear that the act of May 24, 1878 is defective in so far as said section 2 is concerned, and we hold that the ruling of the Superior Court in Moore v. Moore controls us in our view of the unconstitutionality of section 2 of said act. We are, however, of the opinion that the plaintiff in this case is entitled to a verdict. The first section of the act of May 24, 1878, has been declared constitutional, giving jurisdiction to one justice, so that this proceeding, so far as the tribunal commencing the proceeding was concerned, had jurisdiction. The jurors summoned are of course a part of the tribunal when they act, but in this case, according to the facts in the case stated, no action was taken by them, because the right to so act was removed from that tribunal by virtue of the affidavit made by the defendant. Section 114 of the act of-1836 says, that upon defendant making the affidavit and being bound in recognizance as provided in a subsequent section of said act “ the said justices shall forbear to give judgment aforesaid.” The tribunal is the justice’s court and the jury are simply the aid in finding the facts. .In this case before they were even sworn the case was removed by the action of the defendant, and it then became by virtue of the certified record to the court of common pleas of Clear-field county an action of ejectment in that court, as provided • by the form of the recognizance in section 117 of the act of 1836.
    Irregularities of. proceeding in such eases are remedied by certiorari and the summoning of six jurors instead of twelve was simply an irregularity which could have been corrected by certiorari had the case gone on. As the record stands we do not consider that this mere irregularity in summoning the jurors to try the cáse by the justice constitutes a defense to this action, which is virtually only an action of ejectment, with the right to recover damages for wrongful detention. In Dean v. Connelly, 6 Pa. 239, and Walker v. Bush, 30 Pa. 352, it is held that the person in possession having made oath that “ he does not claim the land through or under the defendants as whose property the same was sold by title derived subsequently to the rendition of the judgment under which it was sold but by a different title ” becomes the actor in court and must establish that the title under which he claims is paramount to and different from the one sold by the sheriff, or else he fails. The trial, therefore, as we look at it, must be one on the merits, and no title in this case being shown by D. B. Yeager other'than that which he obtained as lessee of Jessie Howat after the entry of the judgment by David Reams, the defendant here has no defense and the plaintiff, David Reams, is entitled to a verdict for the premises. Plaintiff was entitled, therefore, to the rents, issues and profits of said premises from December 15, 1902 to October 1, 1903, at the rate of $12.00 per month, with interest from the different dates at which said $12.00 per month would fall due, making in all $126.98 at this date.
    Now, April 17, 1905, the prothonotary is directed to enter judgment in favor of David Reams, plaintiff, and against D. B. Yeager, defendant, first, for the premises described in said certified record of the justice, and, second, for damages for detention of the same in the sum of $126.98, with interest from this date and costs of suit. Exception noted to defendant and bill sealed.

      Krror assigned was in entering judgment for plaintiff on case stated.

      A. L. dole, with him F. Blake Kuntz, for appellant.

      W. d. Pentz, for appellee.
    November 21,1905:
   Opinion by

Beaver, J.,

This appeal is taken from the judgment of the court below upon a case stated, in which the assignments of error relate to the action of the court, first, in entering judgment in favor of the plaintiff and not in favor of the defendant, and, second, “ in holding that a justice of the peace and six jurors constitute a legal tribunal.”

In the case stated it appears that the writ issued by the justice of the peace commanded the sheriff “ to summon six jurors, as well as said D. B. Yeager, to try the facts set forth in the petition, as provided by law.” It is also set forth as a fact that the six jurors, naming them, were summoned, but it is also stated as a fact that “ before the jury were sworn, the said Yeager, the defendant, made and filed an affidavit,” in which he alleged that he was legally entitled to hold the premises in dispute against the petitioner and that he did not claim the same by, from or under the defendants, as whose property the same was sold, but by a different title. It is, therefore, admitted that the jury had nothing whatever to do with the trial before the justice and that, by the defendant’s own act, he removed the case to the common pleas and thereby defeated the trial before the jury. There was no trial and no judgment was entered in the case, because, as provided by section 114 of the Act of June 16, 1886, P. L. 755, when the affidavit therein provided for was made, it was the duty of the justice to “ forbear to give judgment.” The court, instead of holding that “ a justice of the peace and six jurors constituted a legal tribunal,” held: “ The tribunal is the justice’s court and the jury are simply the aid in finding the facts. In this case, before they were even sworn, the case was removed, by the action of the defendant, and it then became, by virtue of the certified record to the court of common pleas of Clearfield county, an action of ejectment in that court, as provided by the form of the recognizance in section 117 of the act of 1836.”

Our decision in Moore v. Moore, 23 Pa. Superior Ct. 73, in which we decided that the second section of the Act of May 24, 1878, P. L. 134, which relates to the number of jurors to be summoned, to try the question of title in cases therein referred to, was unconstitutional because the title gave no indication of the contents in that regard, does not, as was held by the court below and as we view it, in any way affect the question here involved.

It appears by the facts in the case stated that Reams, the plaintiff, obtained a judgment against Jesse Howat on September 27, 1902, which became a lien upon the premises, which he (Howat) leased to Yeager October 1, 1902. It does not appear that Yeager had any other title. He, therefore, acquired his title under the lease subsequently to the entry of the judgment, and the court very properly held that, after notice, Yeager was bound to respond to the purchaser at the sheriff’s sale, the present plaintiff, for the amount of the rent.

The opinion of the court is clear and satisfactory and shows that all the questions involved in the case were carefully considered and properly disposed of.

Judgment affirmed.


author: Rice, P. J.,

text:
    Waynesburg Borough’s North Ward.

      Appeals — Certiorari—Boroughs—Division into wards — Review—Commissioners — Rules of court.

    On an appeal from an order of the quarter sessions dividing a borough ward into election districts the appellate court is confined strictly to questions affecting the jurisdiction of the quarter sessions, and the regularity of the proceedings therein, and in the determination of these questions it cannot go outside of the record which the certiorari brings up. The record of other proceedings, such as the division of boroughs into wards, or the annexation of lands to the borough, are not and cannot be brought up by the writ, and therefore cannot be considered.
    The court of quarter sessions may upon petition divide a borough ward into election districts in the exercise of its constitutional power without the appointment of commissioners, and without proceeding by view, review and exceptions.
    A rule of the quarter sessions providing that commissioners shall not be appointed upon a petition for the erection or division of an election district without proof that ten days’ written notice of the time of making the application has been served upon the county commissioners, does not apply to a case where commissioners are not to be appointed.
    The fact that a petition for the division of a borough ward into election districts indicated the number of the districts and their boundaries, is not a fatal objection to the proceedings, where there is nothing to show that the court was constrained by the petition to adopt the lines of division therein recommended without exercising its own judgment and discretion.
    On an appeal from an order dividing a borough ward into election districts, where the order of the court below purports to divide the whole ward into three districts, the appellate court has no jurisdiction to determine a disputed question as to whether the three districts with the boundaries indicated in the order make up the whole of the ward.

      Where an order dividing a borough ward into election districts gives the boundaries by streets, it is not invariably necessary that the courses and distances of the boundaries should be stated.
    Where the court of quarter sessions has entered a decree dividing a borough ward into election districts, and an appeal has been taken therefrom, the court below may, before the removal of the record.and the return day of the writ, order that a map or plot of the districts and in strict conformity with the order, be filed nunc pro tunc.
    If such an order purports on its face to be made by the court and this accords with the record entries, the order will be taken on appeal as having been made by the court as such notwithstanding the allegation that it was made by the president judge alone in vacation. The record imports verity.
    The court of quarter sessions when it divides a borough ward into election districts, may make the appointment of the first election board and designate the polling place.
    Argued Oct. 2, 1905.
    Appeal, No. 24, April T., 1906, from order of Q. S. Greene Co., May T., 1905, No. 1, dividing a borough ward into election districts in case of Waynesburg Borough’s North Ward.
    Before Rice, P. J., Beaver, Or-lady, Smith, Porter, Morrison and Henderson,- JJ.
    Affirmed.
    Petition for division of the North Ward of the Borough of Waynesburg into three election districts. Before Graweord, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned amongst others was the order of the court.

      F. P. lams, with him 8. S. Walton, 8. M. Smith, M. E. Carroll, W. J. Kyle, 8. F. Grim and A. F. 8ilveus, for appellant,
    cited: Henderson’s Case, 2 Watts, 269 ; Harrison Twp., 5 Pa. 447.

      James J. Purman, with him B. N. Freeland, for appellees,
    cited: Guffey’s App., 7 Pa. Superior Ct. 478; Bern Twp., 115 Pa. 615.
    December 10, 1905:
   Opinion by

Rice, P. J.,

The arguments, both oral and printed, presented upon this appeal, took a very wide range, and to some extent were based upon matters which, not being shown by the record proper, cannot be considered by us. The appeal is from an order of the quarter sessions dividing the north ward of the borough of Waynesburg into three election districts. Our revisory jurisdiction on such appeal is simply that which the Supreme Court had on certiorari prior to the act designating eveiy appellate proceeding an appeal. It is confined sti’ictly to questions affecting the jurisdiction of the quarter sessions and the regularity of the proceedings, and izz the determination of those-questions we canziot go outside the record which the certiorari brings up : Guffey’s Appeal, 7 Pa. Superior Ct. 478. The record of other proceedings, as for example the division of the borough into wards, or the annexation of lands to the borough, were not azid could ziot be brought up by the writ, and therefore, although referred to or printed izz the papei-books, must be left out of consideratiozz : Esling’s Appeal, 89 Pa. 205.

The order was made upon the petitiozi of residezzts azid voters of the ward, and without the precedizig appointment and report of eommissionez's, izi accordazzce with the provisions of the Act of May 18, 1876, P. L. 178, as amended by the Act of June 24, 1885, P. L. 149, and notwithstanding the objection raised by the exceptions filed before the decree was made that these statutes outline arid direct the course of proceduz’e that should be followed by the court. In answer to this objection it seems sufficient to refer to In re Township of Bern, 115 Pa. 615, where it was distinctly held that the court of quarter sessions may upon petition divide a township into election districts in the exercise of their constitutional power without the appointmezit of commissioners, and without proceeding by view, z’eview and exceptions. In view of this decision the question raised by the exception above referred to is not opezi to discussion.

But it is claimed that even though the court of quarter sessions may upon petitiozi divide a township or ward into election districts in the exercise of its constitutional power without the appointment of commissioners, azid without proceeding by view, review and exceptions, it cannot disregard its own rules, adopted to regulate the practice under the statutes and the constitutional provision relating to the subject. We need not take up time in consideration of the question whether the court may by rule bind itself, under any and all circumstances, to appoint coznmissioners and to proceed by view, review and exceptions, because it does not appear that the court below adopted such rule. The rule quoted in the eighth assignment simply provides that commissioners shall not be appointed upon a petition for the erection or division of an election district without proof that ten days’ written notice of the time of making the application has been served upon the county commissioners. Obviously this rule does not apply to a case where commissioners are not to be appointed, and no other rule bearing upon the subject has been>called to our attention.

Another objection raised in the court below by the appellant’s first exception was, that the petition was defective in that it fixed the number of the districts and indicated their boundaries, “ thereby taking from the court its discretion in that regard.” The overruling of this exception is one of the matters assigned for error. If there were anything in the record to show that the court felt constrained by the petition to adopt the lines of division therein recommended, without exercising its own judgment in the premises, or notwithstanding its own judgment formed upon a consideration of all the pertinent facts and circumstances that the convenience of the electors and the public interests would be more fully accomplished by a different division, or by no division at all, there would be merit in this assignment of error. But there is no ground whatever for surmising even that the court proceeded upon any such erroneous theory as to its powers and duties. On the contrary the order recites, and the presumption would be the same in the absence of the recital, that it was made after due consideration, and because the court was of opinion that the convenience of the electors and the public interests would be promoted thereby. No presumption that the court did not exercise the judgment and discretion vested in it by the constitution arises from the fact that it adopted the scheme of division recommended by the petitioners. This is precisely what was done in In re Bern Township, 115 Pa. 615, in which case the order, was affirmed upon appeal.

The objections to the order most vigorously urged by the appellants’ counsel are that it does not define the districts with sufficient certainty, and that whilst purporting to divide the ward into three election districts there are portions of the ward not embraced within the description of either of these districts. The description of th'e three districts, as set forth in the petition, is substantially as follows: District No. 1, all that part of the ward lying north of High street and east of Washington street; district No. 2, all that part of the ward lying north of High street and bounded by Washington street on the east and Richhill street on the west; district No. 3, all that part of the ward lying north of High street and west of Richhill street. The original order was, in substance, that the north ward be divided into three election districts, numbered 1, 2 and 3, and “ with boundaries described in the petition.” The clear intent was to include in these three districts the entire territory of the ward, and to include no other territory. There is no room for doubt on that score. It is equally clear that this intent was carried into effect by the foregoing description of the three districts, and that this description defines the boundaries of the districts with reasonable certainty, if in fact High street coincides with the southern boundaries of the ward, and Washington street and Richhill street extend therefrom to the northern boundary. It is not disputed that at the points where High street is intersected by these two streets it forms the southern boundary of the ward, but it is asserted by the appellants that Washington and Richhill streets do not extend to the northern boundary, and it is asked, “ What then is to become of that portion of the north ward lying north of the termini of the streets ? ” In view of the clear intent to leave no part of the ward outside the three districts it seems to the writer that upon the statement of facts suggested by the appellants’ counsel, the plain and reasonable interpretation of the order would be that the division lines intended to be established thereby were the center lines of Washington and Richhill streets protracted to the northern line of the ward. But it is unnecessary, as we view the case, to decide that point. The allegation of fact, namely, that these two streets do not extend to the northern boundary of the ward is not admitted by the appellees. On the contrary, they assert unqualifiedly that they “extend entirely through such ward from High street on the south to Franklin township on the north.” It is thus seen that any argument for or against the validity of the order, so far as such argument is based on facts which do not affirmatively appear of record, and are in dispute, must necessarily be unavailing on appeal, where the revisory power of the appellate court is restricted to the correction of errors apparent in the record which the certiorari brings up.

But it is argued that the description of the three districts is insufficient on its face, because neither the petition nor the order states the courses of the streets mentioned, or states that the streets wholly intersect the ward. We do not regard either of these as a fatal objection. There is no express constitutional or statutory requirement that the courses of the boundary line of an election district must invariably be set forth in the order creating it. Under some circumstances this would be necessary to an adequate description of the district, and in such a case this mode should be followed. But the proposed district may be so situated that it can be fully designated by natural boundaries, under which term we include city or borough streets. If often may happen that the objects to be accomplished will be fully secured by that mode of description, and perhaps more fully than by any other. In such case it is not imperatively required that, in addition to the name of the street adopted as a boundary, its angles and courses shall be given. The question of the sufficiency of the description of an election district established by the court of "quarter sessions under its constitutional power, depends somewhat upon matters of fact within the knowledge of that court or brought to its knowledge in a legitimate way. As already indicated, there is no mode whereby its decision of these questions of fact can be brought up for review. Therefore it is only where the description would be inadequate, even assuming the facts to be as affirmatively asserted or clearly implied in the order, that we would be warranted in declaring the, description insufficient, and setting aside the order upon that ground. Taking this order as a whole, it clearly implies that the ward is naturally subdivided into three parts by two intersecting streets, and if this be the fact, as for the purposes of this appeal it must be presumed to be, we cannot say that the adoption of the description of these three natural subdivisions as the description of the three election districts, was not sufficient in law.

The next question requiring notice is raised by the second • assignment. After this appeal was taken, but before the return day of the writ and the actual removal of the record, there was filed in the court below a map or plot, which, according to the order pursuant to which it was filed, shows the division of the ward “ into election districts or precincts as fully described in the decree of May 15,1905, and showing the boundary of each of said districts or precincts.” This was directed — -we again quote from the order — “to be filed in this case nunc pro tunc as of May 15, 1905, and the same is hereby made part of the decree in this case, which decree was made on that date.” It will be observed that the original order was not changed in any substantial particular. The map or plot is in strict conformity with it. Although not absolutely essential to the validity of the proceedings, it would have been well if it had been filed when the original order was made ; but according to the doctrine of many decisions it was an amendment which the court had power to make prior to the removal of the record and the return day of the writ, notwithstanding the appeal: Gunn v. Bowers, 126 Pa. 552; Shamburg v. Noble, 80 Pa. 158, and cases there cited; Commonwealth v. Silcox, 161 Pa. 484; Clark v. Clark, 180 Pa. 186; Green v. Prince Metallic Paint Co., 25 Pa. Superior Ct. 418.

It is urged further that the supplemental order last referred to is invalid because it was made, not by the court as such, but by the president judge-in vacation. The answer made by the appellees’ counsel to this proposition, and we deem it sufficient, is that the order on its face and in the manner in which it is signed, purports to have been made by the court, and this accords with the record entries. For purposes of this proceeding the record imports verity.

The remaining question to be considered arises upon an objection which appears, so far as we observe, not to have been made in the court below, but which necessarily must be considered in passing upon the validity of the final decree. The question is as to the power of the court of quai'ter sessions to appoint the officers to hold the first election, and to designate the polling place, where the court erects an election district under its constitutional power, and without following the proceedings set forth or prescribed by the act of 1.876. A review of the legislation upon the subject has convinced us that in such a case the court has the power which was exercised in this case. It is not necessary to put this conclusion upon the ground that it is implied in the power given to the court to establish a new election district. It is true the act of 1876 apparently applies only to cases where the procedure prescribed by that act has been followed, in other words, where there has been a report of commissioners. It is true, also, that by the Act of January 80, 1874, P. L. 31, it was provided in the sixth section that the judges of the court of common pleas should have the power to appoint the election boards “ where any new district shall be formed,” but that section was amended in 1893 and again in 1897, so that apparently that clause of the sixth section was eliminated. Indeed, it is not claimed by appellants’ counsel that the court of common pleas has the authority to make the appointment in such case. But in'view of this amendment of the sixth section of the act of 1874 we are inclined to the opinion that the power of the quarter sessions in a special casé like the present to make the appointment of the first election board and fix the polling place, which power was conferred by the acts of 1854 and 1855, still exists. It is not irrelevant to notice, although the question appears not to have been discussed in that case, that in the Bern township case the court of quarter sessions exercised the power to appoint the election board and fix the polling place as was done in this case.

Upon a full view of all the record we find no error therein which would warrant us in reversing or setting aside the proceedings. The order is affirmed.


author: Rice, ,P. J.,

text:
    Waynesburg Borough’s South Ward.

      Boroughs — Election district — Appeals—Review.
    On an appeal from an order dividing a borough ward into election districts, where the order of the court below purports to divide the whole ward into three districts, the appellate court has no jurisdiction to determine a disputed question as to whether the three districts with the boundaries indicated in the order, make up the whole of the ward.
    Argued Oct. 2, 1905.
    Appeal No. 26, April T., 1906, from order of Q. S. Greene Co., May T., 1905, No. 1, dividing a borough ward into election districts in ease of Waynesburg Borough’s South Ward.
    Before Rice, P. J., BRaver, Orlady, Smith, Porter, Morrison and PIenderson, JJ.
    Affirmed.
    Petition for division of the South Ward of the Borough of Waynesburg into three election districts. Before Craweord, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned amongst others was the order of the court.

      F. F. lams, with him S. 8. Walton, S. M. Smith, M. F. Qarroll, W J. Kyle, S. F. Grim and A. F. Silveus, for appellant.

      James J. Purman, with him B. N. Freeland, for appellee. ■
    December 10, 1905 :
   Opinion by

Rice, ,P. J.,

The proceedings in this case were substantially the same as in the case of the division of the north ward of the borough in which we herewith file an opinion. The proceedings were had and the final order was made at the same time as in that case. The order divides the south ward of the borough into three election districts described substantially as follows: District No. 1, all that part of the ward lying south of Main or 'High, street and east of Morgan street; district No. 2, all that part of the ward lying south of Main or High street and bounded by Morgan street on the east and Morris on the west; district No. 8, all that part of the ward lying south of Main or High street and west of Morris street. The principal objection urged against this description is that it fails to include all of the south ward in one or the other of the three districts. This objection •is based on the allegation that Main or High street does not form the entire boundary of the ward on the north. We will not encumber this opinion with a discussion of the opposing allegations with regard to the question of the true location of the northern boundary of the ward. In order, however, that our order and decree shall not be misunderstood it will be well to say that if the fact be as alleged by the appellant the objection based thereon is a meritorious one, and the defect in the order is one that in the interest of the public and the voters should be corrected. It is apparent, however, from the suggestions and considerations that we have referred to in our opinion in the north ward case that we cannot review the action of the court upon these questions of fact, but that as suggested there we are bound to assume the facts to be as affirmatively asserted or clearly implied in the order, and determine the question as to the sufficiency of the order in point of law upon that assumption. This being so we find no error in this record which would warrant us in reversing or setting aside the proceedings. In other words, if a mistake has been made it is a mistake which is not in our power to correct. The order is affirmed.


text:
    Franklin Township’s Election Districts.
    Argued Oct. 2, 1905.
    Appeal, No. 26, April T., 1906, from order of Q. S. Greene Co., May T., 1905, No. 8, dividing a township into election districts in the case of Franklin Township’s Election Districts. Before Rice, P. J., Beaver, Or-lad y; Smith, Porter, Morrison and Henderson, JJ. Affirmed.
    December 10, 1905:
   Opinion by

Rice, P. J.,

The action of the court brought up for review in this case was taken at the same time as the proceedings for the division of the two wards of the borough of Waynesburg. The questions raised by the assignments of error and by the argument are precisely the same as those raised in those cases, although the facts are somewhat different. We have gone quite fully into the discussion of those questions, so far as they are properly before us for review, in the cases referred to and it will be unnecessary to go over the same ground in this case. It is sufficient to say that we find no error in the record brought up for review which would warrant us in reversing or setting aside the proceedings. The order is, therefore, affirmed.