text:
    McGinnis v. St. Paul Fire & Marine Insurance Company, Appellant.

      Insurance — Fire insurance — Proofs of loss — Total loss — Change of possession — Occupancy.
    1. Formal proofs of loss are not necessary in the case of á total loss of a building insured where the insurance company has been promptly notified of the loss and has inspected the premises.
    2. Where a policy of fire insurance provides that the policy shall be void if any change takes place in interest, title or possession, except change of occupants without increase of hazard, a leasing of the insured premises by the legal owner, with the consent of the insured, the equitable owner, and placing the lessee in actual possession of the premises, without any increase of hazard, does not avoid the policy. In such a case the word “possession” means legal possession or possessory right.
    3. Where the terms of the policy of insurance are susceptible without violence, of two interpretations, that construction which is most favorable to the insured, in order to indemnify him against loss sustained, should be adopted.

      Appeals — Exceptions—Refusal of judgment non obstante veredicto— Practice, C. P.

    4. Parties asking for a judgment non obstante veredicto and failing to secure it, must ask for and obtain an exception. The court is not required to grant an exception and place it in the record, unless it is asked for by the losing party. If such an exception has not been obtained, an appeal from the order may be quashed.
    Argued Oct. 28, 1908.
    Appeal, No. 121, Oct. T., 1908, by defendant, from judgment of C. P. Potter Co., Sept. T., 1906, No. 108, on verdict for plaintiff in case of Bryan McGinnis v. St. Paul Fire & Marine Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit on a policy of fire insurance.
    The facts are stated in- the opinion of the Superior Court.
    The court refused binding instructions for defendant. >
    Verdict and judgment for plaintiff for 1655.30. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. K. Jennings, with him D. C. Jennings and J. Walter Wells, for appellant.
    The contract was avoided by the lease and change of possession: Freedman v. Ins. Co., 175 Pa. 350; Planters’ Mut. Ins. Assn. v. Dewberry, 69 Ark. 295 (62 S. W. Repr. 1047); Wenzel v. Ins. Co., 67 Cal. 438 (7 Pac. Repr. 817); Jaskulski v. Citizens’ Mut. Fire Ins. Co., 131 Mich. 603 (92 N. W. Repr. 98); New Kensington Lumber Co. v. Ins. Co., 35 Pa. Superior Ct. 32; Beatty v. Ins. Co., 66 Pa. 9; Lycoming County Mut. Ins. Co. v. Schollenberger, 44 Pa. 259; Universal Mut. Fire Ins. Co. v. Weiss, 106 Pa. 20.

      W. I. Lewis, with him W. F. DuBois, Archibald F. Jones and R. R. Lewis, for appellee.
    We maintain that the only fair, reasonable and just construction of the word “possession,” as used in the clause quoted, limits its use to legal possession or possessory right: Dow v. Ins. Co., 1 N. Y. Super. Ct. 185; Western Ins. Co. v. Cropper, 32 Pa. 351; Humphreys v. Benefit Assn., 139 Pa. 264; Ins. Assn. v. Dewberry, 69 Ark. 295 (62 S. W. Repr. 1047).
    The receipt of proofs of loss, after the time limit in the policy, and the retention of them, without objection, is a waiver of the condition: Commercial Union Assurance Co. v. Hocking, 115 Pa. 407; Marthinson v. North British, etc., Ins. Co., 64 Mich. 372 (31 N. W. Repr. 291); Carpenter v. Continental Ins. Co., 61 Mich. 635 (28 N. W. Repr. 749); German Fire Ins. Co. v. Grunert, 112 Ill. 68; Gans v. St. Paul Fire & Marine Ins. Co., 43 Wis. 108; Minneapolis, etc., Ry. Co. v. Home Ins. Co., 64 Minn. 61 (66 N. W. Repr. 132); Mickey v. Burlington Ins. Co., 35 Iowa, 174; Rheims v. Standard Fire Ins. Co., 39 W. Va. 672 (20 S. E. Repr. 670); Palmer v. St. Paul Fire & Marine Ins. Co., 44 Wis. 201.
    February 26, 1909:
   Opinion by

Morrison, J.,

As this case was tried in the court below, there appears to be only a single important question for consideration here, namely, “whether a leasing of the insured premises, by the legal owner, with the consent of the assured, the equitable owner, and placing the lessee in actual possession of the premises, avoids the policy,” or, as the counsel for the defendant have stated it in the second question involved, “ Is it a question of actual possession or of possessory right?”

The plaintiff was the legal owner of the lot of ground upon which the insured building was erected, and by articles of agreement, dated December 16, 1903, he contracted to sell the premises to one Edward Chilson, for the sum of $650, granting the right of occupancy to Chilson, he agreeing to keep the buildings insured for the benefit of McGinnis and going into the actual occupancy of the premises. A policy of insurance, dated February 15, 1904, was issued by the defendant, in the name of Edward Chilson, covering a certain building situated on said lot “the loss, if any, payable to B. McGinnis as his interest may appear.” A fire occurred on February 11, 1906, totally destroying the insured building. The defendant company was promptly notified and its adjuster came and examined the premises. Some time prior to the fire, Chilson was told by Mrs. Chappel, a daughter of the plaintiff, acting for him, that he, Chilson, was not keeping up his payments on the contract; that he must do so or at least he must pay $5.00 per month, and she thought her father would be satisfied with such payments, and that if he could not pay that, it would be better to rent the property and apply it on the contract. Chilson made no definite answer to this proposition and some time thereafter moved out of the house and Mrs. Chappel leased the premises to a Mrs. Hoyt, collected the rent and credited it to Chilson upon the contract of sale. The insured building was occupied by Mrs. Hoyt from that time until it was destroyed by fire on February 11, 1906. The written contract between the plaintiff and Chilson was never cancelled or abrogated by agreement nor surrendered by Chilson; he retained his copy of the contract and had it in his possession at the time of the trial of this case. After the fire, Chilson refused to make proofs of loss, but such proofs were then made by plaintiff and sent to the defendant company; they were not sent nor received until more than sixty days after the fire, but were received and held by the defendant company, without objection, until the time of the trial.

We do not understand that the defendant’s counsel seriously contended at the trial that the plaintiff could not recover, under the facts, because of the character and date of the proofs of loss. The learned counsel contends in this court that the proofs were not sufficient to entitle the plaintiff to recover, but we cannot agree with this contention. The insurance was on a single building and it was totally destroyed. The company had prompt notice of this fact and the adjuster came and examined the loss. These facts, coupled with the proofs of loss furnished by the plaintiff, after sixty days from the fire, and the retention of the proofs by the company without objection, entitles the plaintiff to recover on that ground. In Gartsee v. Citizens’ Ins. Co., 30 Pa. Superior Ct. 602, we held as stated in the syllabus: “Formal proofs of loss are not necessary in the case of a total loss of a building insured, where the insurance company has been promptly notified of the loss and has inspected the premises.” See authorities cited by Judge Henderson, who wrote the opinion in that case.

At the trial, the defendant contended that the uncontradicted evidence showed that there had been a change “in interest, title or possession,” which, under the terms of the policy, was sufficient to render it null and void. Chilson and Mrs. Chappel not agreeing as to what took place between them in regard to the property, the court submitted to the jury to find whether there had been a surrender by Chilson of the possessory right in the property and the jury found in favor of the plaintiff’s contention that there had not been such a surrender. The clause of the policy which the defendant contends was violated'by the change in occupancy or actual possession, as above stated, is as follows: “This entire policy . . . shall be void . . . if any change, other than by the death of the insured, takes place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured or otherwise.”

We understand the learned counsel for the defendant to contend that the word “possession,” as here used, refers not alone to the possessory right, but to the actual possession or occupation as well. But this view does not seem to us to be sustained by the use of the word in other parts of the policy. In line seventy-four of the policy, setting forth what the proofs of loss shall contain, the language is, in part, as follows: “Any changes in the title, use, occupation, location, possession, or exposure of said property,” etc. In this policy the word possession does not seem to have the same meaning as occupation. In the clause relied upon by the counsel for the defendant, the words “interest, title or possession” are qualified by the phrase “except change of occupants without increase of hazard.” In overruling the motion for judgment non obstante veredicto the learned court below said: “This clause shows clearly that the word 'possession’ refers to possessory right instead of actual occupancy and that a change of occupancy was permitted where there was no increase of hazard.” We do not gather from the record that the defendant contended at the trial that there was any increase of hazard caused by the leasing of the premises to a tenant, but the defense was based solely on the change of the actual possession or occupancy. We are not aware that the precise question here involved has been decided in this state. But there is a decision in Rumsey v. Phoenix Ins. Co., 1 Fed. Repr. 396, by the United States Circuit Court of Appeals for the northern district of New York, opinion by Judge Wallace, which seems to decide this question. In that case the policy provided that it should be void “if the property be sold or transferred, or any change take place in the title or possession whether by legal process, judicial decree, voluntary transfer or conveyance.” The court said in that case: “The fact that Zimmer moved out of the dwelling-house and let it to tenants, is not a defense within the conditions that avoid the policy ‘if any change take place in title or possession.’ The change of possession contemplated is something more than a change of occupation; it is a change effected ‘by legal process, judicial decree, voluntary transfer or conveyance; one which refers to his possessory right and not to the occupancy of the insured. The possession of Zimmer’s tenants was his possession, within the meaning of the policy.”

In our opinion, the proper legal, as well as reasonable, construction of the word “possession,” as used in the policy, in the present case, limits it to legal possession or possessory right and that Chilson could and did have such legal possession, although the occupancy of the building was in a tenant placed there, by the plaintiff, with the consent of or at least without objection, from Chilson. It cannot be doubted, under the facts in this case, that Chilson had and still has an equitable title to the premises described in his contract, and there is nothing appearing in the record to prevent him from tendering the balance of the purchase money and recovering the actual possession and occupancy of the insured premises in an action of ejectment. This is so because he enjoys a valid possessory right which he never surrendered. The law in Pennsylvania is that if the language used in an insurance policy “be capable of two interpretations, equally reasonable, that must be adopted which is most favorable to the assured, for the language is that of the insurers:” Western Ins. Co. v. Cropper, 32 Pa. 351.

“ Forfeitures are odious in law, and are enforced only where there is the clearest evidence that that was what was meant by the stipulations of the parties. There must be no cast of management or trickery to entrap the party into a forfeiture:” Helme v. Ins. Co., 61 Pa. 107.

“Where the terms of a policy are susceptible, without violence, of two interpretations, that construction which is most favorable to the insured, in order to indemnify him against loss sustained, should be adopted:” Humphreys v. National Benefit Assn., 139 Pa. 264.

In the present policy the word occupation seems to be used to indicate actual possession or occupancy, and the word “possession” as used with the words “interest and title,” in the clause in question, seems to mean legal possession or possessory right and in accordance with the doctrine above quoted, these words should be so construed as to indemnify the insured against the loss sustained. We have already seen that the policy permits a “change of occupancy without increase of hazard.” It was not contended at the trial, so far as we can see, that there was any increase of hazard caused by the leasing of the premises to a tenant. The question of whether Chilson had surrendered his possessory right to the premises to the plaintiff was submitted by the court to the jury, and that body found that no such surrender had been made.

We do not find that there was any change in the possession, except the physical occupancy of the premises, which is not forbidden by the terms of the policy of insurance. This distinguishes the present case from the New Kensington Lumber Co. v. German Ins. Co., 35 Pa. Superior Ct. 32, upon which the learned counsel for the defendant seems to rely with much confidence. In that case the policy was much like the one in question, but on the same day it was issued the owner of the insured property was adjudicated a bankrupt and this clearly was a change in interest and title which divested the owner of his title and placed the same in the trustee for the benefit of creditors of the bankrupt. That case and the cases therein cited, and distinguished, establishes the right of the present plaintiff to sue and recover in his own name, on the facts in this case.

In the case of Planters’ Mut. Ins. Assn. v. Dewberry, 69 Ark. 295, relied on by defendant’s counsel, the policy referred to any change in “occupation or possession,” and in the opinion of the court is the following: “A change of possession and occupancy was made without the consent of the insurance company and continued till the time the house was consumed by fire.” Here there was a positive covenant against any change in occupation. or possession whatevér. Therefore, that case is not in point.

We have examined the other cases cited by the learned counsel for the defendant and have given his able argument careful consideration, but we are not convinced that the assignments of error raise any reversible error.

We call attention to the fact that the record fails to show any exception to the charge of the court, to the answers to the points, or to the decree of the court refusing judgment for the defendant non obstante veredicto. The latter decree was entered on May 20, 1908, and on June 6, 1908, judgment was entered on the verdict. On September 3, 1908, an attempt was made to amend the record and have an exception noted as of May 20, 1908, to the decree of that date. In International Savings & Trust Co. v. Printz, 37 Pa. Superior Ct. 134, we held that under the Act of April 22, 1905, P. L. 286, the parties asking for a judgment non obstante veredicto and failing to secure it, must ask for and obtain an exception, otherwise an appeal from the action of the court will be quashed; that the court is not required to grant an exception and place it in the record unless it is asked for by the losing party. This undoubtedly means that the losing party should ask for the exception at the time the decree is filed or with reasonable promptness thereafter. Strictly, we might quash this appeal for want of an exception, but in as much as there is no written or printed motion in the record to quash, the question only being raised by oral argument, and the appellee’s counsel having submitted an elaborate printed argument upon the merits, we have concluded to treat the motion, etc., of September 3, 1908, as an exception to the decree of the court on the motion for judgment non obstante veredicto. Under this view we have reviewed the case upon its merits.

The assignments of error are all dismissed and the judgment is affirmed.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Zellar v. Farrand, Appellant.
    February 26, 1909:

      Equity — Injunction—Parties—Papers.
    A bill in equity against several defendants prayed that they might be enjoined from using certain papers and drawings, and that they might be ordered to deliver the papers and drawings to the plaintiffs. The evidence showed that two of the defendants retained certain of the papers because of salary and wages due them for services in connection with the papers. As to the other defendants there was no evidence to connect them in any way with the papers, or with any control over them. Held, that the bill should be dismissed as to these defendants and that a decree should be entered directing the other two defendants, upon payment of their claims, to surrender the papers to the plaintiffs.
    Argued Oct. 16, 1908.
    Appeal, No. 108, Oct. T., 1908, by defendants, from decree of C. P. No. 5, Phila. Co., March T., 1908, No. 4,878, on bill in equity in case of Frank M. Zeller and the Arcadia & Clifton Heights Railroad Co. v. H. A. Farrand et al. and the Philadelphia Terminal Transfer Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison and Orlady, JJ.
    Reversed in part.
    Bill in equity for an injunction. Before Ralston, J.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court.

      W. W. Porter, of Porter, Poulkrod & McCullagh, for appellants.

      Louis B. Runk, with him John B. Read, Silas W. Pettit and H. B. Gill, for appellees.
   Opinion by

Orlady, J.,

This bill in equity was filed to restrain the defendants from using in any way certain tracings, blue prints, notes and data, which were alleged to be the exclusive property of the plaintiffs, but were secured by the defendants while in the employ of, and holding a confidential relation to, the plaintiffs. After a hearing, the bill was dismissed as to three of the original defendants and the injunction was made perpetual as to the others.

Separate answers were filed by the defendants and testimony was taken at a hearing which conclusively shows that C. Fitch Bennett, Joseph H. Young, Paul L. Connor, Elwood Johnson, C. L. Peterson, Herbert H. Adams, Martin Van Hardingin and Edward B. Colket, president of the Philadelphia Terminal Transfer Railroad Company, did not have at the time the injunction was issued, or at the time of the hearing, any of the papers described in the bill. It does appear, however, that Farrand and Bennett, two of the above-named defendants, had certain of the papers in their possession, and retained custody of them for the reason stated at the hearing, viz.: that there was due to Farrand, $187, and to Bennett $70.14 as wages, and that when these sums were respectively paid they would willingly surrender the papers held. It is not necessary to pass on the right of these two to hold these papers by virtue of the services they rendered in regard to them and the character of their employment; as the plaintiff insisted on the injunction being made*permanent, that phase of the decree is affirmed, but concerning the other named defendants, there being no evidence to connect them in any way with the papers or with any control over them, the decree is reversed, and the bill is dismissed with costs.

The part of the decree is affirmed which directs that upon payment by F. M. Zeller to H. A. Farrand of the sum of $187 claimed by him as salary, and to C. F. Bennett of the sum of $70.14 claimed by him for wages, that they deliver to F. M. Zeller the paper, maps and other matters admitted by them respectively to be in their possession.

There being no evidence to connect the other named defendants in any way with the possession of the papers, or with any control over them, the decree is as to them reversed.


text:
    Shroyer, Appellant, v. Smeltzer.
    February 26, 1909:

      Judgment — Opening judgment — Forgery—Evidence—Question for jury.

    1. A proceeding to open a judgment is an appeal to the equity powers of the court; the judge who exercises the function of a chancellor is vested with the discretion to pass upon the weight of evidence and the credibility of witnesses, and to. dispose of the question presented upon equitable principles. The action of the court below will be reversed only in cases where the abuse of judicial discretion is apparent. Where the allegation of forgery is involved, these principles apply with the same force and effect as in other cases.
    2. Where the transaction is contrary to good faith, and the fraud affects individual interests only, ratification is allowed, but where the fraud is of such a character as to involve a crime, the adjustment of which is forbidden by public policy, the ratification of the act from which it springs is not permitted. Forgery does not admit of ratification.
    Argued Oct. 28, 1908.
    Appeal, No. 59, Oct. T., 1908, by plaintiff, from order of C. P. Bedford Co., Sept. T., 1906, No. 165, making absolute rule to open judgment in case of J. T. Sbroyer v. M. D. Smeltzer and Jacob Bowser.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment. ■
    The opinion of the Superior Court states the case.

      Error assigned was order making absolute rule to open judgment.

      John H. Jordan, with him D. S. Horn, for appellant,
    cited: Shannon v. Castner, 21 Pa. Superior Ct. 294; Light v. Sholl, 32 Pa. Superior Ct. 133; Ilyus v. Buch, 34 Pa. Superior Ct. 43.

      Frank E. Colvin, for appellee,
    cited: Shannon v. Castner, 21 Pa. Superior Ct. 294.
   Opinion by

Orlady, J.,

The court below made absolute a rule to open a judgment, and let the defendant into a defense; it was alleged that the note upon which the judgment was entered did not bear the defendant's signature, either by his own hand, or by his authority. After a full hearing, and consideration of all the testimony in the case, the court below was of the opinion that the case should be submitted to a jury for determination, and in so doing, was fully warranted by many decisions. To reverse the court below in such a case, it must clearly appear that the conclusion reached, based upon all the testimony in the case, was erroneous. The judge to whom the application is made acts as a chancellor, and upon appeal, this court will see only that his discretion has been properly exercised.

It is difficult to lay down the precise measure of proof which should move a chancellor to open a judgment. That he may not act unless there is more than oath against oath, is a familiar rule in chancery practice. When there is more than that and it comes to a question of weight of the evidence, it is for him to decide to which side the scale is inclined; if he is in doubt upon this question, or .as to the credibility of the witnesses, a prudent course would suggest the aid of a jury. As stated by-Judge Porter, in Ilyus v. Buch, 34 Pa. Superior Ct. 43, a proceeding to open a judgment is an appeal to the equity powers of the court; the judge who exercises the function of a chancellor is vested with the discretion to pass upon the weight of evidence and the credibility of witnesses, and to dispose of the question presented upon equitable principles. The action of the court below will be reversed only in cases where the abuse of judicial discretion is apparent. Where the allegation of forgery is involved, these principles apply with the same force and effect as in other cases: Zajaczkowski v. Jawer, 36 Pa. Superior Ct. 324.

The testimony in this case is so conflicting, and the inferences to be reasonably drawn from admitted facts are of such a nature that in order that substantial justice be done to the parties, the case should be referred to a jury for solution. Where the transaction is contrary to good faith, and the fraud affects individual interests only, ratification is allowed, but where the fraud is of such a character as to involve a crime, the adjustment of which is forbidden by public policy, the ratification of the act from, which it springs is not permitted. Forgery does not admit of ratification: Shannon v. Castner, 21 Pa. Superior Ct. 294; see Thornton v. Meyers, 30 Pa. Superior Ct. 472; Schomaker v. Dean, 201 Pa. 439; Kaier Company v. O’Brien, 202 Pa. 153; Massey v. Blair, 176 Pa. 34.

The assignment of error is overruled and the judgment is affirmed.


author: Beaver, J.,

text:
    Pool, Appellant v. Van.

      Negligence — Brass band — Fright of horse — Animals.
    In an action against the leader of a band to recover for loss of a horse, where the evidence shows that the defendant's band took a stand at the intersection of two streets, gathering a crowd around it, and leaving only a narrow passageway open, and that plaintiff’s horse took fright at the sound of the drums and brasses, and as a result sustained injuries in consequence of which he had to be killed, the question whether the use of a street by the band was an ordinary one or an extraordinary one, and whether the playing of the band was the proximate cause of the accident is for the jury.
    Argued Oct. 29, 1908.
    Appeal, No. 134, Oct. T., 1908, by plaintiff, from order of C. P. Clearfield Co., Feb. T., 1908, No. 113, refusing to take off nonsuit in case of James Pool v. Woody Van.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for death of a horse. Before A. O. Smith, P. J.
    The facts are stated in the opinion of the Superior Court.
    The trial judge entered a compulsory nonsuit which he subsequently refused to take off.

      Error assigned was order refusing to take off nonsuit.

      Singleton Bell, with him Howard B. Hartswick, for appellant.
    The rights of the plaintiff at the time were superior to that of the band as to the use of the street, the plaintiff being an actual traveler, and the band simply standing on the street: Davis v. Corry City, 154 Pa. 598; Com. v. Passmore, 1 S. & R. 217; Potter v. Gas Co., 183 Pa. 575; Vallo v. Express Co., 147 Pa. 404; Stehle v. Poth, 220 Pa. 335; Addis v. Hess, 29 Pa. Superior Ct. 505; Com. v. Allen, 148 Pa. 358; Cook v. Dolan, 6 Pa. Dist. Rep. 524.
    The user of the street for any proper purpose, save passage, must be with the exercise of due care that travelers are not injured: Vallo v. Express Co., 147 Pa. 404; Potter v. Gas Co., 183 Pa. 575; Lamb v. Pike Twp., 215 Pa. 516.
    The acts of the defendant were negligent and there was want of due care under the circumstances: Penna. R. R. Co. v. Barnett, 59 Pa. 259; P., W. & B. R. R. Co. v. Stinger, 78 Pa. 219; Kreiner v. Straubmüller, 30 Pa. Superior Ct. 609; Obold v. Traction Co., 19 Pa. Superior Ct. 326.
    What is proper care must depend on the facts of each case, and where the precise measure of duty is not determinate the same under all circumstances, the case is for the jury: P., W. & B. R. R. Co. v. Stinger, 78 Pa. 219; Potter v. Gas Co., 183 Pa. 575.
    A person who speaks in the street and thereby collects a crowd is not committing a nuisance per se, but it will become a nuisance if it becomes an obstruction of the public highway: Fairbanks v. Kerr, 70 Pa. 86; Com. v. Spratt, 14 Phila. 365.
    The fair test is whether the acts done were likely and calculated to frighten a quiet, well-broken horse.
    This test has been fully'established as to fright by sight, and no other reasonable test can be applied to fright by sound: Mallory v. Griffey, 85 Pa. 275; Fritsch v. Allegheny, 91 Pa. 226; Piollet v. Simmers, 106 Pa. 95; North Manheim Twp. v. Arnold, 119 Pa. 380; Keeley v. Shanley, 140 Pa. 213; Baker v. North East Borough, 151 Pa. 234; Ide v. Lake Township, 191 Pa. 182.
    The trend of judicial opinion elsewhere appears in Lynn v. Hooper (Maine), 47 L. R. A. 752; Topeka Water Co. v. Whiting (Kansas), 39 L. R. A. 90; Ayer v. Norwich, 39 Conn. 376; Foshay v. Glen Haven, 25 Wis. 288; Darling v. Westmoreland, 52 N. H. 401; Morse v. Richmond, 41 Vt. 435; Cushing v. Bedford, 125 Mass. 526.
    February 26, 1909:

      David L. Krebs, with him A. M. Leveright, for appellee.
    It has been decided that the right partially to obstruct a street is not limited to a case of strict necessity, but it may extend to purposes of convenience and ornament: City of Allegheny v. Zimmerman, 95 Pa. 287; Piollet v. Simmers, 106 Pa. 95.
    It has been held, further, that parades with music and flags may be indulged in, and that a parade of strikers is as legitimate a use of the streets as political parades, or those of the Salvation Army: Cook & Sons v. Dolan et al., 6 Pa. Dist. Rep. 524.
    Where a plaintiff and a defendant have equally the right to the use of a street, a defendant is not responsible to a plaintiff whose horse was injured because of defendant’s exercise of his right, unless at the same time there was an abuse of the right: Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Hazel v. People’s Pass. Railway Co., 132 Pa. 96; Steiner v. Philadelphia Traction Co., 134 Pa. 199; Yingst v. Lebanon, etc., Street Railway Co., 167 Pa. 438; Farley v. Harris, 186 Pa. 440; Davison v. Traction Co., 10 Pa. Superior Ct. 442; McKinney v. United Traction Co., 19 Pa. Superior Ct. 362; Fouhy v. Penna. Railroad Co., 17 W. N. C. 177.
   Opinion by

Beaver, J.,

Assuming the facts relating to this case as contained in the counterstatement of the appellee, they are as follows: “On January 4,1908, between 11:00 o’clock and 11:30 o’clock a. m., a band connected with a theatrical company marched west along Market street in the borough of Clearfield. When it reached the intersection of Second street, the band circled and stood on the roadway at the intersection, playing a selection. Around the band gathered and pressed a large concourse of people. Between the mass formed by the band and the encircling crowd and the curb at the southwest corner of Second and Market streets, a passageway, variously estimated at eight to twelve feet in width, was left for the use of horses and vehicles. On the same morning three teams, of which the plaintiff’s was the last, were coming north on Second street toward Market street in close order, and for two blocks ahead the plaintiff had a view of the intersection with Market street. As the teams left the corner to turn into Market street, the first and second successfully traveled the passageway between the crowd and the curb, with the horses - of the third team close upon the wagon of the second. The band played just as the first team had cleared the crossing at the intersection of the streets. When the third team reached the point opposite the circle, the drum was beating and the brasses were played, and the plaintiff’s horse made several jumps. In some unexplained way its leg was broken, and the horse had to be killed.”

The appellee states the questions involved:

“1”. Does the temporary occupancy of a street and the playing of a'band, while so occupying the street, make the leader of the band liable, in action for damages because of the injury to a horse happening from alleged fright of the horse when the owner deliberately attempted to drive the horse past the band?
“2. Is the playing of a band on the public street a nuisance per se?”

As we view the case, from an examination of all the testimony, of which the statement of facts in the appellee’s counterstatement is reasonably fair, we cannot regard it as a question of law as to whether or not the band had the right to occupy the street, as it was occupying it, nor could the court determine, as a matter of law, that the action of the band was not a nuisance. The court was influenced as stated to the jury in granting the non-suit: “As you have heard, at the close of plaintiff’s testimony, a motion was made on the part of the defendant for a compulsory nonsuit. That is a question of law pure and simple and is not a question for the jury. As we look at this case, the band had the same right of passage over the street that anybody else had, that is, temporarily, and temporarily to occupy the street for the purpose of playing music. Whether that was loud, offensive music or not is not in the case, and they having that right, the only thing that would make them liable for any act such as alleged here of scaring a horse, would be that they did it negligently or in a way that resulted in the injury, and it is not contended here, by the counsel for the plaintiff, who makes a very strong plea, that they have the right to recover here; it is not contended that they have shown any act of negligence. That question we would have had to leave to the jury, if they had so shown. His contention is purely basic, going back to the right of the band to be there, with which we do not agree. He can test that matter in another court.”

In Commonwealth v. Allen, 148 Pa. 358, which was a case in the quarter sessions, in which the defendants were indicted for maintaining a nuisance, by using a traction engine for hauling stone from a quarry to the railroad, and in which they were convicted, the Supreme Court, in affirming the judgment, said: “As a general rule, highways and bridges are constructed for ordinary use, in an ordinary manner, and not for an unusual or extraordinary use, either by crossing at great speed, or by the passing of a very large and unusual weight.”

As we view the case under discussion, the question as to whether or not the band, under the direction of the defendant, was using the highway in an ordinary manner and for an ordinary purpose would be one for the jury. It may be, as stated by the court below in granting the nonsuit, that the band had a right of passage over the street and that, in the act of passing, they had the right to play upon their instruments, but this was a very different question from that presented by the facts. The band had made a circle at the intersection of two streets, around them assembled a concourse of people, leaving a narrow passageway at the side for the passage of the public. Was this an ordinary use of the public highway for ordinary purposes, or in an ordinary manner, and not an unusual or extraordinary use? It was for a jury to say.

This appears very clearly from Coulter v. Pine Twp., 164 Pa. 543, which is also a case involving the right to use a traction engine, but in which the present chief justice distinguishes between Clulow v. McClelland, 151 Pa. 583, and Com. v. Allen, 148 Pa. 358, and referring to the general use of the highway and whether or not the use of the engine became an ordinary use, he said: “This generality of use would, of course, ordinarily be a question for the jury,” and further says: “On the main issue the jury were told, ‘This case turns upon the question, whether or not traction engines had become a usual and ordinary mode of travel when the supervisors ■ reconstructed the bridge in June, 1888.’ It was a question for the jury and was thus submitted in exact accord with the principles of Clulow v. Mc-Clelland. The difference in result was due to the difference in the facts, as appearing there in plaintiff’s own evidence and as found here by the jury.”

If this question had been left to the jury and their finding had been that the use of the street, as made by the defendant and his band, was an extraordinary use, such as was not justified under the rule as laid down in Commonwealth v. Allen, 148 Pa. 358, another question would probably have arisen, namely, as to the proximate cause of the accident. It is not necessary to consider that question now, inasmuch as it would also be one for the jury, under proper instructions.

This phase of the case has been considered very fully by Mr. Justice Agnew in Fairbanks v. Kerr, 70 Pa. 86. We think there was evidence in this case which should have gone to the jury on this phase of it, if they had found that the street was being used by the defendant and his band in an unusual way, for an extraordinary purpose.

In Scott et al. v. Hunter et al., 46 Pa. 192, referred to in Fairbanks v. Kerr, 70 Pa. 86, Mr. Justice Strong said: “It is observable that the jury did not pass upon the question whether the defendants ought not to have apprehended that their unlawful and continued obstruction of the entrance to the locks might result in the plaintiffs’ boats being swept by the current over the dam, and lost, as they were. This was not submitted to them. The court assumed that the sudden rise of the river, and the danger to the plaintiffs’ boats, could not have been anticipated by ordinary prudence and care. Now it is very obvious that if the defendants, while they were wantonly or negligently keeping their own boats at the entrance of the locks, and preventing the passage of the plaintiffs’, knew the danger to which their unlawful act exposed the property of the plaintiffs, as it is averred in the declaration they did, they are responsible for the damage which resulted from their act, though it was not the most proximate cause. And so, if they ought to have known the danger, as men of ordinary prudence, and yet persisted in maintaining the obstruction, they are responsible. It is a familiar principle that a man is answerable for such consequences of his unlawful acts as are natural, and may be foreseen by ordinary forecast. What is ordinary care in the performance of an act depends upon the surrounding circumstances.”

In this case, it was further said: “And it was manifestly for the jury to determine whether it was a natural consequence, such as should have been foreseen by the defendants at the time, and in the circumstances in which they acted, or rather in which they failed to act.”

The facts in this case, as we view them, clearly raise two questions: Was the defendant using the public streets in the ordinary way, for an ordinary purpose, and, secondly, was such a use as he made of the street, if the jury should find that it was unusual and extraordinary, the proximate cause of the accident to the plaintiff's horse? If both of these questions were answered in the affirmative by the jury, it seems to us the plaintiff would have been entitled to recover.

Judgment reversed with a new venire.

Morrison, J., dissents.


author: Morrison, J.,

text:
    Light v. Miller, Appellant.

      Deeds — Description—Svbject-matter—Evidence—Parol evidence.

    1. Where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed, but this rule has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance.
    2. Where a contract for the sale of timber calls for two tracts, one larger than the other, and one of the parties claims that the two tracts were both embraced in the larger tract, but evidence in support of this contention is in conflict, not only with the contract of sale, but with all the essential facts in regard to the location and character of the smaller tract, it is error for the court to permit the jury to find that both tracts called for in the deed were embraced in the boundaries of the larger tract.

      Bailment — Commodatum—Loan for use without pay — Degree of care— Negligence.

    3. A bailee is not an insurer, and in the absence of a special agreement he is not responsible for losses resulting from damages necessarily incident to the use of the bailed property, nor from inevitable accident or irresistible force. If the property is destroyed by fire it must be affirmatively shown that the fire was the result of some fault or neglect of the bailee to hold the latter for the loss.
    Argued Oct, 29, 1908.
    Appeal, No. 145, Oct. T., 1908, by defendants, from judgment of C. P. Lebanon Co., March T., 1905, No. 163, on verdict for plaintiff in case of Daniel S. Light v. Levi F. Miller and Edwin Wolfe, trading as Miller & Wolfe.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a written contract. Before Ehrgood, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $242.78. Defendant appealed.

      Errors assigned were in the following form:
    1. The court erred in refusing the defendants' fourth point, the point and answer of the court being as follows:
    4. Under all the evidence in this case the verdict must be for the defendants. Answer: Fourth and fifth are refused, and we will not read them.
    2. The court erred in refusing the defendants’ second point, the point and answer of the court being as follows:
    2. Under all the evidence in this case the defendants are not liable for the belt destroyed by fire. Answer: The second is refused, and we will not read it.
    3. The court erred in refusing the defendants' fifth point, the point and answer of the court being as follows:
    ■ 5. Under all the evidence in this case the verdict must be for the defendants for the sum of $130.50, with interest. Answer: Fourth and fifth are refused, and we will not read them.

      February 26, 1909:
    . 4. The court erred in charging the jury as follows: “ There was still fire there, still fire in the engine.”
    5. The court erred in charging the jury as follows: “If, on the other hand, you find that they were negligent at least in not remaining there a longer time than within quarter of an hour after they stopped, that they were negligent, then we say to you that there can be a recovery, and there should be a recovery in this case.”
    6. The court erred because, even if the court was justified in submitting the question of the $300 item to the jury, the charge to the jury was inadequate in that it failed to direct the attention of the jury to the possibility and legal effect of a mutual mistake of the parties as to the subject-matter of the contract.

      Robert L. Adams, with him Walter C. Graeff, Paul G. Adams and J. G. Adams, for appellants,
    cited as to the descriptions: King v. Gas Coal Co., 204 Pa. 628; Thompson v. Kaufman, 9 Pa. Superior Ct. 305.
    Cited as to the bailment: Zell v. Dunkle, 156 Pa. 353; Moyer v. R. R. Co., 31 Pa. Superior Ct. 559.

      H. Rank Bickel, for appellee,
    cited: Hetherington v. Clark, 30 Pa. 393; Scott v. Sheakly, 3 Watts, 50; Todd v. Figley, 7 Watts, 542.
   Opinion by

Morrison, J.,

On December 14, 1903, the plaintiff and defendants entered into a written agreement signed, sealed and delivered on that date. Portions of it material to be considered here are as follows: “The said Edwin Wolfe and Levi S. Miller, parties of the second part agrees to pay to Daniel S. Light, party of the first part the sum of $1,440 for the timber on tract No. one or lower tract, saw-mill, shingle mill, engine and boiler, the extra shaft the cord wood that is cut and logs that are cut, the shingle packer and all the tools that belong to said saw-mill, the above tract is situated in Bethel Township, Lebanon Co., Pa., and on the east and west side of Rattling Run. . . . The said Edwin Wolfe and Levi S. Miller, parties of the second part agrees to pay said Daniel S. Light, party of the first part the sum of $300 for tract No. 2 lying south of tract No. 1 and lying on the east and west side of Rattling Run and situated in Bethel Township, Lebanon Co., Pa., and should the said second party be stopped from cutting wood or timber from said 2nd tract, then said article of agreement of tract No. 2 is void.”

It was conceded at the trial that the defendants had paid the plaintiff the full consideration mentioned in the first paragraph of the contract above quoted. The main controversy in this suit was in regard to the $300 mentioned in the second paragraph. The real question in dispute was a claim on the part of the plaintiff that tracts Nos. 1 and 2 were both embraced in a tract known as the Horst tract shown by the evidence to contain about 117 acres. No question was raised as to the title of the plaintiff to the 117 acre lot. If the evidence warranted the court in permitting the jury to find in favor of the plaintiff's contention that both lots were embraced in the 117 acre tract, then the judgment ought to be affirmed as to the recovery of the $300. But the defendants contended at the trial lot No. 1 embraced the whole of the Horst tract and that lot No. 2 mentioned in the contract adjoined the Horst tract on the southerly side and that at the date of the contract it was understood by the parties to be a vacant strip of timbered land lying between the Horst tract and the Weidman estate lands; that the very reason for inserting in the contract of December 14, 1903, that, “should the said party be stopped from cutting wood or timber from said second tract, then said article of agreement of tract No. 2 is void,” was because it was not believed that the plaintiff had the right to sell the timber on the said strip of land. At the trial there was no evidence that both tracts were embraced in the Horst lot, except that of the plaintiff. Against this there was the positive evidence of two or more witnesses; the fact that the Horst tract and the narrow strip of supposed vacant land south of the Horst answered the requirements of the contract precisely; that in the contract, No. 1 is described as the lower tract, lying on. the east and west side of Rattling Run, a small stream of water flowing down the mountain side; that tract No. 2 is described in the contract as being south of No. 1 and lying on the east and west side of Rattling Run, and the provision in the contract that should the parties of the second part be stopped from cutting timber on said tract No. 2, the agreement as to that tract was to be void. The evidence conclusively shows that the division of the tracts as made by the defendants fitted the description of the same as set forth in the contract. Rattling Run flows northwardly down the mountain side, cutting in two the Horst tract and the strip of vacant land lying south thereof. The division of the tracts as contended for by the plaintiff could not possibly fit the description of the tracts as contained in the contract, because, by the plaintiff’s division, Rattling Run would not flow through lot No. 2 at all and it would not be correct to say that plaintiff’s lot No. 2 lay south of lot No. 1.

The narrow strip of land which defendants contend is No. 2, was conveyed to Rufus Bohr by patent from the commonwealth of Pennsylvania, dated May 22, 1905, granted in pursuance of warrant dated- May 3, 1905, and survey thereunder. The defendants were cutting timber on the land covered by this patent and they were stopped from such cutting by the grantee in the patent and for that reason they refused to pay the $300 for the timber on lot No. 2.

The testimony of Jerome Sholly and Edwin Wolfe strongly supports the contention that the tract of unseated or vacant land was tract No. 2, specified in the agreement. Again, the agreement recites that in consideration of the sum of $1,440 the defendants were to have “the timber on tract No. 1,” and also “the cord wood that is cut and the logs that are cut” on tract No. 1. Yet the plaintiff testified that the cut portion of the Horst tract was to be tract No. 1 and the uncut portion tract No. 2. This testimony is flatly in conflict with the contract because it sells the timber on tract No. 1. If the timber was all cut on tract No. 1, it was folly to sell the timber thereon in the contract. Moreover, the contract sells “the cord wood that is cut and the logs that are cut,” which are included with the timber, the timber seeming to have been made the principal item in the sale of tract No. 1. In addition to all of this we call attention to exhibit “E,” a draft of the Horst tract and adjoining land, and exhibit No. 2, made from survey of May 3, 1905, by D. W. Hain, both of which the record shows were offered and admitted in evidence, and are now before the writer of this opinion, although they are not printed in either of the paper-books as they should have been. We consider these exhibits as evidence supporting the defendants’ contention that lot No. 2 was the vacant strip of land above referred to and that it was not a part of the Horst tract.

In Harvey v. Vandegrift, 89 Pa. 346, Mr. Justice Paxson, for the Supreme Court, said: “It is undoubtedly true that where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed. . . . But was there any such ambiguity in the case at hand to bring it within the rule above stated? The authorities are equally clear that the rule which allows extrinsic evidence to explain the extent of the subject sold, has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance.” See also King v. Gas Coal Co., 204 Pa. 628, where, on p. 633, it is said: “that when the description in a deed or devise is clear and explicit, and without ambiguity, there' is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.”

We think the principle here involved is well stated in Thompson v. Kaufman, 9 Pa. Superior Ct. 305 (see p. 308): “When the direct purpose of the testator can be fulfilled from the terms of the will, and the subject of the devise existed at the time the will was executed and when it went into effect, no parol evidence is permissible, except the subject be doubtful, and then only to resolve the doubt.”

From these cases, and many others of the same import which might be cited, we deduce the following rule as to the present case. Conceding that some parol testimony was required to apply the contract to the subject-matter which the parties had in mind at the time of its execution, to what extent can such parol evidence be admitted and where should the court draw the line in construing the contract and submitting the case to the jury? In our opinion, when the parol evidence showed the location of the Horst tract and that it coincided with the contract as to No. 1, and also that the vacant strip of land lying southerly of No. 1, between the latter and the Weidman tract, answered the description of No. 2 tract, and that these two tracts fill the requirements of the contract, in all essential respects, as to tracts Nos. 1 and 2, and it appearing clearly that a subdivision of the Horst tract into Nos. 1 and 2, based on the plaintiff’s testimony, was in conflict not only with the contract, but with all the essential facts, in regard to the location and character of the land called for, then it was error for the learned court to permit the jury to find that both tracts called for in the deed were embraced within the boundaries of the Horst tract. We, therefore, hold that the court ought to have withdrawn from the jury plaintiff’s claim for $300 for the timber on tract No. 2.

This brings us to the consideration of the other item of plaintiff’s claim, to wit, a belt, loaned by him to the defendants, it having been destroyed by fire which also destroyed defendant’s mill, lumber and machinery. In view of the fact that the belt was loaned by the plaintiff to the defendants as defined in some of the old authorities “commodatum,” or loaned for use without pay, and of the well-settled rule of law that in such case the bailee is bound to exercise a high degree of care of such property, the question of whether the defendants were liable in the present case, under the undisputed facts, is not without difficulty.

As to the care required on the part of the bailee, see Todd v. Figley, 7 Watts, 542; First National Bank v. Graham, 79 Pa. 106. But a bailee is not an insurer and in the absence of a special agreement, he is not responsible for losses resulting from damages necessarily incident to the use of the bailed property, nor from inevitable accident or irresistible force: Story on Bailments, secs. 25-32, and see 3 Am. & Eng. Ency. of Law (2d ed.), p. 747, and authorities there cited, in footnote 1.

In the present case we note that the mill and property where the defendants used the belt, were sold to them by the plaintiff; that he loaned the belt for temporary use at that mill; that he must have known the custom of the defendants in operating the mill and the use to be made of the belt; that the defendants kept no watchman at the mill when it was not in use, and it is a matter of common knowledge that fires are likely to occur in and about a sawmill. An examination of the whole case on this point leads us to the conclusion that the learned court erred, in instructing the jury that there was evidence of want of care in the alleged fact that defendants’ servants left the mill at about fifteen minutes of twelve o’clock on a certain day while “there was still fire there, still fire in the engine.” An examination of the evidence does not sustain the court in instructing the jury that the men left the mill when there was still fire in the engine. The undisputed evidence shows that the mill was destroyed by a fire which occurred on the afternoon of the day referred to. E. M. Moyer, witness for plaintiff, testified that they left the mill at about a quarter to twelve o’clock. He testified as follows: “Q. You are engineer?” “A. Yes, sir.” “Q. At the time of the fire this belt was on the engine?” “A. Yes, sir.” “Q. There was some fire in the engine, just how much you do not know?” “A. There was very little fire there. I told you before we have stopped work at half past eleven o’clock.” “Q. Left at quarter of twelve?” “A. Left quarter of twelve. I ran my fire down so that I had no fire in my fire box. Then I ran my water up to keep my water over Sunday. We only had one more day to saw; and that was on the following Monday.” “Q. Mr. Wolfe testified he gave instructions that the fire should be oughtened?” “A. There was no fire there, and no instructions whatever, but I know that myself.” “Q. He had not given any instructions?” "A. He had given instructions to be very careful, that there was no fire, but I know that myself with my experience.”

Now, this proof was on the part of the plaintiff and we think it does not justify the learned court in saying to the jury that the defendants’ men left fire at the mill at about noon from which, evidently, the jury found that the fire originated which destroyed the mill at about four o’clock in the afternoon. Under all of the facts and circumstances in evidence it would be a mere guess of the jury as to how the fire originated. It may have been caused by boys or tramps who visited the mill several hours after it had been left in apparent safety; again, it may have been caused by some unavoidable accident, or cause, for which the defendants were in no way responsible. In our opinion, this item of the plaintiff’s claim ought to have been withdrawn from the jury and as the record would then have stood the defendants were entitled to a certificate in their favor for the amount of their set off which they proved and which the plaintiff conceded that they were entitled to, to wit, $130.50, and interest thereon of $13.57. No motion was made in the court below, for judgment in favor of the defendants non obstante veredicto under the provisions of the Act of April 22, 1905, P. L. 286, and therefore, the judgment can only be reversed with a venire facias de novo.

The first, second, third, fourth and fifth assignménts of error are sustained; the sixth is not sustained because we do not think the question therein was properly raised in the court below.

The judgment is reversed with a venire facias de novo.


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

      Carriers — Railroads—Sale of coal — Passing of title — Demurrage.
    1. Where an owner of a coal mine sells coal to a customer and loads it on cars at the mine, and it appears that under his contract and the custom of the trade, the title to the coal immediately passes to the purchaser, the seller cannot, after the purchaser has refused to receive the coal, and after the railroad company with the consent of the purchaser has sold it for demurrage and charges for a sum less than the charges, claim to recover the contract price of the coal from the railroad company, because the latter failed to notify him of the refusal of the purchaser to take the coal.
    2. In such a case in the absence of evidence of an exercise of the right to stop the coal in transitu, the seller was not entitled to any notice.

      3. Even if he had a right he would on a waiver of the tort be entitled to only what the railroad company received over and above its charges, and as the company did not receive the amount of its charges, the seller could claim nothing.
    Argued Oct. 30, 1908.
    Appeal, No. 175, Oct. T., 1908, by plaintiff, from order of C. P. Clearfield Co., May T., 1907, No. 313, entering judgment for defendant non obstante veredicto in case of R. H. Mull v. Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit for value of a shipment of coal. Before A. O. Smith, P. J.
    The opinion of the Superior Court states the facts.
    Verdict for plaintiff for $176.04.
    The court subsequently made an order entering judgment for defendant non obstante veredicto.

      Error assigned was the order of the court.

      David L. Krebs, with him A. M. Diveright, for appellant.
    The consignor, notwithstanding the loading of the car and the delivery to the carrier, has a right of stoppage in transitu, because there was no actual possession of the coal in. the consignee, possession having been refused: Jenks v. Fulmer, 160 Pa. 527; 4 Elliott on Railroads, secs. 1539, 1541, 1543; Penna. R. R. Co. v. American Oil Works, 126 Pa. 485.
    The courts do not agree as to what duty is imposed on the carrier, but it has been decided by most respectable authority that it is the duty of the carrier to notify the consignor of the refusal of the consignee to receive the goods: American Sugar Refining Co. v. McGhee, 96 Georgia, 27 (21 S. E. Repr. 383); American Merchants’ Union Exp. Co. v. Wolf, 79 Ill. 430; 2 Hutchinson on Carriers, secs. 720, 721; Wernwag v. R. R. Co., 117 Pa. 46; Lake Shore & M. S. Ry. Co. v. Rosenzweig, 113 Pa. 519; Penna. R. R. Co. v. Stern, 119 Pa. 24.
    But the defendant had no right to sell the coal without notice. The common law regulating the hen of the carrier is no longer in force in Pennsylvania, and is now regulated by the act of assembly: Rodgers v. Grothe, 58 Pa. 414.
    February 26, 1909:
    An action either ex delicto or ex contractu will lie. In each form of action the averment of negligence is usual and entirely proper. In either, however, the plaintiff may recover on proof of the breach of duty: Menner v. D. & H. Canal Co., 7 Pa. Superior Ct. 135; Phœnix Pot Works v. P. & L. E. R. R. Co., 139 Pa. 284; Buck v. Penna. R. R. Co., 150 Pa. 170; Willock v. Penna. R. R. Co., 166 Pa. 184.

      Hazard Alex. Murray, with him Thos. H. Murray and Jas. P. O’Laughlin, for appellee.
    Where goods are left with a common carrier to be delivered to the consignee without any qualification or restriction, the consignor parts with all title to the goods and all control over them and cannot by a subsequent direction to the carrier, prevent their delivery to the consignee, unless such facts are shown as will justify the stoppage of the goods in transitu: Schumacher v. Eby, 24 Pa. 521; Phila. & Reading R. R. Co. v. Wireman, 88 Pa. 264; Rickey v. Tutelman, 19 Pa. Superior Ct. 403; Klein v. Patterson, 30 Pa. Superior Ct. 495; Dannemiller v. Kirkpatrick, 201 Pa. 218; Krulder v. Ellison, 47 N. Y. 36.
    The carrier is not bound to give the consignor notice of refusal of the consignee to accept: Gregg v. Illinois Cent. Ry. Co., 147 Ill. 550 (35 N. E. Repr. 343); Manhattan Rubber Shoe Co. v. Chicago, etc., R. R. Co., 75 N. Y. St. Repr. 544 (41 N. Y. Supp. 83).
   Opinion by

Orlady, J.,

The plaintiff sold five car loads of coal, consisting of 150 gross tons at $1.10 per ton, to the Delaware Hardwood Lumber Company, of Trenton, N. J., and consigned the coal by way of the Pennsylvania Railroad Company, from his mine at Philipsburg, Pa., freight charges to follow to the lumber company at Trenton, on September 18 and 19, 1906. After sending bills and trying to locate the Delaware Hardwood Lumber Company by correspondence, the plaintiff, three months later, made inquiry of the defendant, as to what disposition had been made of the coal and was informed through correspondence with the railroad officials, that a representative of the lumber company had called at the freight office of the railroad company at Trenton, about the time the coal arrived at its destination, and stated that they could not secure a purchaser for it, and suggested that the railroad company-take over the coal for company use or dispose of it as best it could. In support of this, a written order was given by the consignee of the coal, authorizing the railroad company to sell it, and, at that time no knowledge that the coal had not been paid for, existed on the part of the railroad company; the coal was sold to pay for the freight and demurrage charges; the railroad company receiving thirty-five cents per ton (plus the freight from the mines to Trenton), so that there remained unpaid 1126 on the railroad’s claim of unpaid car service and charges. The date of this sale is not given, nor any itemized statement of the charges against the coal.

The facts were developed by the plaintiff through the correspondence with the railroad officials, and which he offered in evidence. This action is in assumpsit, and the plaintiff urges that the letters of the defendant establish the fact that there was a refusal by the consignee to accept the coal, and that the defendant being a common carrier, owed the duty to the plaintiff of notifying him of such refusal, and that having so failed, it was such a nonperformance of its duty as common carrier as would entitle the plaintiff to recover the value of the coal. The defendant offered no evidence and urged that under the pleadings and evidence in the case, the court should direct a verdict in its favor. The case was submitted to a jury, and a verdict in favor of plaintiff was returned, which on motion was subsequently set aside and judgment non obstante veredicto was entered in favor of the defendant.

. It is undisputed that the plaintiff was not the owner of the coal at the time of the sale, and that the coal was rightfully in the possession of the railroad company as a common carrier, subject to a lien for freight and demurrage charges. The delivery to the common carrier for shipment was without any qualification or restriction, and, under the authorities, the consignor parted with his title to the coal and to all control over it at Philipsburg, Pa., there being no evidence to justify the consignor in stopping the coal in transitu. There was no injury done to the coal, and, so far as this case is concerned, it was rightfully sold by the railroad company, to pay its proper charges against it, and this would be true whether there was a refusal or not on the part of the consignee to accept the coal, but in this case, the only evidence on that phase of the subject is that the coal was sold by the railroad company, under the direction of the consignee, for the express purpose of covering these charges: Schumacher v. Eby, 24 Pa. 521; Bacharach v. Chester Freight Line, 133 Pa. 414; Rickey v. Tutelman, 19 Pa. Superior Ct. 403; Klein v. Patterson, 30 Pa. Superior Ct. 495; Dannemiller v. Kirkpatrick, 201 Pa. 218. The right of stoppage in transitu not having been exercised, no title reverted to the plaintiff, hence there was no contractual relation between the plaintiff and the defendant by reason of that duty. The failure to perform the alleged duty of giving notice, is primarily the cause of the action, the conversion of the railroad company being incidental to this nonperformance. Under this state of facts, the basis of the action is not founded upon a contract, either expressed or implied, nor do we feel that it is within the exception pointed out in some authorities in which the plaintiff may waive a tort and sue upon an implied contract.

In all the cases brought to our attention, the right of action, and the right to waive the tort, was in the owner or bailor only, or when the person who sought to be bound was wrongly or tortiously in possession of the property: Sergeant v. Emlen, 141 Pa. 580; Zell v. Dunkle, 156 Pa. 353. The suit in this case waives the tort and ratifies the act of conversion by claiming damages representing the. full value of the property, but under the admitted facts the plaintiff would at most be entitled to recover only what the defendant company actually received: Lee v. Gibbons, 14 S. & R. 105; Wagner v. Peterson, 83 Pa. 238. Under the undisputed evidence, the railroad company did not receive, by the amount of $126, their full claim of charges against the freight.

On both phases of the case, the court rightfully entered judgment for the defendant, which is now affirmed.


text:
    Reed, Appellant, v. Snyder.
    February 26, 1909:

      Negligence — Automobiles—Fright of horse — Case for jury.

    In an action against the driver of an automobile to recover for personal injuries, it appeared that plaintiff driving in a buggy with his wife and small child, approached, at a point in a narrow road, an automobile driven by defendant. Plaintiff threw the lines to his wife, descended to the ground, and without looking at, or speaking to the defendant, took the head of his horse, which had become restless. The defendant started to proceed, when immediately a volume of vapor as large as a hat was spurted from a tube in the rear axle, under and against the horse, accompanied by a hissing sound and strong odor of gasoline. The horse became unmanageable, overturning the buggy and injuring the wife. The horse was eighteen years old, and prior to the accident trustworthy. Held, that the case was for the jury.
    Argued Oct. 30, 1908.
    Appeal, No. 196, Oct. T., 1908, by plaintiffs, from order of C. P. Clearfield Co., Sept. T., 1907, No. 107, refusing to take off • nonsuit in case of Edgar B. Read and Lavina Read v. S. I. Snyder and Clark Snyder.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order refusing to take off nonsuit.

      Singleton Bell, with him Smith V. Wilson and Howard B. Hartswick, for appellant,
    cited: Obold v. Traction Co., 19 Pa. Superior Ct. 326.

      David L. Krebs, with him A. M. Liveright, for appellee,
    cited: Hazel v. Pass Ry. Co., 132 Pa. 96: Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306.
   Opinion by

Orlady, J.,

This action of trespass was brought to recover damages for injuries sustained by the plaintiff and his^wife, which were alleged to have been caused by the negligence of the defendant. The facts are confined within a narrow compass and are substantially as follows: The plaintiff was driving in a buggy on a public highway, having with him his wife and a small child, two years of age. The defendants were approaching in an automobile, and when the plaintiff saw the automobile, he gave the lines to his wife, and got out to stand at the head of the horse, which at the time showed signs of fright. The roadway was about sixteen feet in width, and after the plaintiff led his horse off to one side of the road, the defendants approached with the auto until opposite the horse, and then stopped. Neither party spoke, and the defendants started to proceed. Immediately a volume of vapor, described as being about as large as a hat, was spurted out from a tube in the rear axle, under and against the horse, accompanied by a hissing sound, and a strong odor of gasoline. The horse became unmanageable, overturned the buggy, throwing out the wife and child, and attempted to run away. The plaintiff retained his hold on the horse, succeeded in stopping it, and for the injuries he then received, this action is brought.

The testimony of the eyewitnesses called by the plaintiff agree with him in all substantial particulars. The horse was about eighteen years old, and prior to this accident was regarded as trustworthy and not easily frightened, but when the automobile came to a standstill, the horse showed signs of nervous tremor and fright. It was, however, under full control, until the automobile suddenly started with the accompanying steam, noises and odors, which induced the fright.

The court below held that under the circumstances attending the case, as shown by the testimony, the defendant could not have been expected to do more than was done; that the plaintiff by his failure to speak as well as by his actions, invited the automobile to pass him, as he was holding his horse, rather than that he should have time to lead his horse past the automobile, and that he could have protected himself by requesting the defendants to stand still until he had passed the automobile in safety; not having done this, he took the risk of having the automobile pass him. We feel that this is too complicated a question to be passed on as a matter of law. Each of the parties had rights on that highway, and each was required to exercise toward the other the duty of reasonable care according to the circumstances, and each had a right to expect that such reasonable care would be exercised by the other, and to rely on this in determining'his own manner of using the road. The defendants must necessarily have seen the nervous horse, the man at its head, the mother and child in the buggy, and must certainly have known that when the machine over which they had full control would be started by their direction, the vapor would be ejected in the direction of the horse, that a noise would be produced, with an accompanying odor of gasoline. A jury would be warranted in concluding that they had full control of their machine, and should have known the hazard following their progress, which could have been relieved of all possible danger by remaining stationary for but a moment. The fact that the plaintiff did not ask them to remain stationary does not necessarily imply an invitation to proceed; it might as reasonably have been his expectation that they would allow him time to take his horse out of that place of danger. Whether their act was the direct cause of the uncontrollable fright of the horse, and whether they should have anticipated such a result was purely a question of fact and not one of law. At least the character of the road, the relation of the parties to each other and the conduct of each, the effect reasonably to be expected by the starting of the machine, with the noisy emission of vapor against the horse, the fitness of the horse, the control over the machine and the horse, were matters for the consideration of the jury, in determining the negligence of the defendant, and the contributory negligence of the plaintiff. The case is quite similar in its facts to that of Obold v. Traction Company, 19 Pa. Superior Ct. 326, and the rule of law applied in that case, is rightly invoked in this one. If the driver of the automobile failed to do what an ordinarily prudent driver would have done under like circumstances a jury would be warranted in finding that he was negligent, and if his negligence was the cause of the plaintiff’s injury, he should be held liable therefor: Whissler v. Walsh, 165 Pa. 352. The duty of a driver, as defined by the Act of April 19, 1905, P. L. 217, is reciprocal in requiring the operator or user of a motor vehicle and the driver of another vehicle about to be passed, to signal the other for the purpose of warning each one, so that special care may be exercised, but independent of this statute, the duty of each driver is clearly declared in many well-considered cases. Each is required to use his natural senses, as well as the plain common sense of everyday observation and experience in avoiding injury to other users of the highway. The act of 1905 only prescribed that certain things should be done, but did not exclude other reasonable precautions.

The judgment of the court in refusing to take off the nonsuit is reversed, the record to be remitted to the court below, with a venire facias de novo.


text:
    Grove’s Estate.

      Evidence — Declarations against interest — Declarations in aid of interest.

    1. The effect of declarations against interest is not to be impaired by independent declarations in aid of interest, unless the latter be made in the presence of the adverse party.
    2. Where in the distribution of a decedent’s estate evidence is offered of declarations made by the decedent to the effect that an indebtedness by his son to him had been paid, and that he was in the son’s debt, it is not competent for the executor to prove that the decedent had made declarations at other times and to other persons, but not in the presence of the son, to the effect that the son was indebted to him.
    Argued Oct. 30, 1908.
    Appeal, No. 197, Oct. T., 1908, by Enoch I. Grove, from decree of O. C. Huntingdon Co., dismissing exceptions to auditor’s supplemental report in estate of David Grove, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      February 26, 1909:
    Exceptions to supplemental report of Howard L. Henderson, Esq. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.

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

      L. H. Beers and H. H. Waite, for appellant.
    Statements not against the interest, but in the interest of the testator, cannot be admitted in evidence for any purpose: Farmers’ Bank v. Whitehill, 16 S. & R. 89; Hoak v. Hoak, 5 Watts, 80; Robert’s App., 126 Pa. 102; Wonsetler v. Wonsetler, 23 Pa. Superior Ct. 321; Clever v. Hilberry, 116 Pa. 431.

      Richard W. Williamson, with him J. R. and W. B. Simpson, for appellees.
    The declarations of a decedent amount to nothing when confronted by the due bills of the claimant found in the hands of the decedent: Hoecker’s Estate, 47 Legal Intel. 505; Harbold’s Executors v. Kuntz, 16 Pa. 210.
   Opinion by

Beaver, J.,

Upon the distribution of the balance in the hands of the executor of David Grove, deceased, the declarations of the decedent that notes and other evidences of indebtedness on the part of Enoch I. Grove, a son of the decedent, found by his executor among the papers of the decedent, had been paid, and that, instead of the son being indebted to him, he was indebted to the son, were given in evidence. The counsel for the executor and other heirs offered to prove that the decedent at other times, to other persons, not in the presence of the son who is the present appellant here, had made other declarations, in which he asserted that the said son was indebted to him. The testimony thus offered was received by the auditor, who was appointed to make the distribution, but on final consideration was not considered. He says in his first report in reference thereto:

“Dr. W. T. Browning, one of the executors, S. O. Fraker and George Grove were called to the witness stand for the purpose of proving statements or declarations made to them by the testator, David Grove, that E. I. Grove owed him at the time of his death. These declarations or statements are self-serving or in favor of the interest of the decedent, and are therefore inadmissible. The testimony of Dr. W. T. Browning and S. O. Fraker is stricken out, and also that part of the testimony of George Grove, which relates to the declarations or statements made to him by the testator is stricken out. It is held in Wonsetler v. Wonsetler, 23 Pa. Superior Ct. 321, that, 'The effect of declarations against interest is not to be impaired by independent declarations in aid of interest, unless the latter be made in presence of the adverse party.’ In the case at bar, E. I. Grove was not present at any of the conversations in which the decedent declared that E. I. Grove owed him. See also Appeal of Miller, 107 Pa. 221; Parry v. Parry, 130 Pa. 94; Thomas, Appellant, v. Miller, Exr., 165 Pa. 216.”

In summing up the testimony in regard to the indebtedness of E. I. Grove to the decedent’s estate, the auditor says: “The preponderance of testimony, consisting of the declarations and admissions of David Grove, the testator, and the other facts and circumstances, clearly establish to our satisfaction that the notes, in question, which were given by E. I. Grove to his father, David Grove, are paid, and that E. I. Grove is not indebted to the estate.”

Upon exceptions to the finding of the auditor, based upon the auditor’s refusal to consider the testimony in regard to the declarations of the decedent as to the indebtedness of E. I. Grove to him, the court below, in its opinion disposing thereof, said: “The testimony of Dr. W. T. Browning and S. O. Fraker was to the effect that David Grove shortly before his death told them that Enoch I. Grove was indebted to him. The evidence of the indebtedness of Enoch I. Grove consisted of a note dated June 19, 1883, for sixteen hundred dollars ($1,600), another note dated January 23, 1893, for one thousand dollars ($1,000). This note of January 23, 1893, was given by Enoch I. Grove and George Trexler to David Grove to secure the said David Grove for having indorsed or become surety for them to one Charles Broadway Rouss. The third evidence of indebtedness is a note dated June 25, 1894, for two thousand dollars ($2,000), signed by Enoch I. Grove. This note, from the evidence, was given to secure David Grove who indorsed a note to the Union Bank of Huntingdon, which the executors paid after his death, the said Enoch I. Grove having received said sum of two thousand dollars ($2,000). The testimony of Enoch I. Grove was taken and considered by the auditor. In his testimony he contends that, on or about April 18, 1887, Enoch I. Grove sold to David Grove his father a farm, and the testimony of Enoch I. Grove is that David Grove never paid the consideration money. This testimony was taken by the auditor and, upon this testimony, he finds that the consideration money in said deed was not paid. This we think was error and it is not sufficient to overcome the presumption that the consideration money was paid at the time of the delivery of the deed, the same having been in the possession of David Grove ever since. We also think that the auditor erred in not considering the testimony of W. T. Browning and S. O. Fraker after having first heard and considered the testimony on the part of Enoch I. Grove, to the effect that his father, David Grove, was indebted to him and not he to his father. We think it was evidence. If for no other purpose, it should have been considered in the light of the evidence produced by Enoch I. Grove.”

It was said in Galbraith et al. v. Green et ux., 13 S. & R. 85, by Mr. Chief Justice Tilghman (p. 92): “Many witnesses were examined by the defendant to prove that B. Galbraith had, at various times, both before and after his marriage, declared that he had given the land to his son Samuel; after which the plaintiffs offered to prove, 'the declarations of the said B. Galbraith made to different persons, behind the back, and without the knowledge of his son Samuel, before his marriage with the plaintiff, and when he had it in contemplation, and after his said marriage, that he had not given the land to his said son Samuel.' To this evidence the defendants objected, but the court admitted it, on which, an exception was taken to their opinion. The declarations of B. Galbraith that he had given the land to his son were admitted without objection. And if, in the same conversation, he had made explanations, or counter declarations, they also would have been evidence; because, it is not fair, to take but part of what a man has said. But that was not the kind of evidence which was offered by the plaintiffs. As I understand the bill of exceptions, it was evidence of other, distinct declarations, made by the father, in the absence of the son. What a man says against his own interest, may be safely believed; but it is not safe to credit him, where he is advocating his interest. Upon this principle the rule of evidence is founded —a man’s confession, against himself, is evidence, but his declarations in favor of his own interest are not evidence. When B. Galbraith said that he had given the land to his son, he spoke against his own interest, but when he denied it, he spoke in his own favor.” The principle here stated has become an established rule of evidence and, for the reasons therein stated, should not be departed from.

. The report of the auditor was set aside and the case referred back to him, with directions to find that the said Enoch I. Grove was not entitled to any part of the estate of his father. Such a report was made, excepted to by the appellant here but, on the consideration of the exceptions, the report was confirmed. Dhe appeal here is from the decree confirming this report which, of course, brings up the exceptions to the final report, which involved the consideration of the previous report of the auditor and the grounds upon which his findings were set aside. We are very clearly of the opinion that the testimony of the executor and Fraker, the witness who testified to the declarations of the decedent, in the absence of the appellant here, not being a part of the declarations or conversations with others, in which he admitted that he was indebted to his son, were not proper evidence and should have been excluded or disregarded, as the auditor finally did disregard them. We do not find, upon examination of the testimony, that there was sufficient evidence, independently of the testimony of these witnesses who testified to the declarations of the decedent as to the indebtedness of his son, the appellant, which would establish such indebtedness, particularly in view of the fact that the auditor found that: “The preponderance of testimony consisting of the declarations and admissions of David Grove, the testator, and the other facts and circumstances clearly establish to our satisfaction that the notes in question which were given by E. I. Grove to his father, David Grove, are paid, and that E. I. Grove is not indebted to the estate.”

As to the testimony of Enoch I. Grove, we do not understand from the opinion of the court that he held said Grove incompetent as a witness. He certainly was competent, for even if under clause e of sec. 5 of the Act of May 23,1887, P. L. 158, he could have been held incompetent, being called as to this part of the case as upon cross-examination by the appellee, it would have made him “a fully competent witness for either party,” under sec. 6 of said act. If the ruling of the auditor as to the payment of the purchase money of the farm purchased by David Grove from his son, the witness, had depended upon his testimony alone, there might have been force in the ruling of the court below that it was “not sufficient to overcome the presumption that the consideration money was paid at the time of the delivery of the deed, the same having been in the possession of David Grove ever since.” However, the declarations of David Grove as to the fact that his son was not indebted to him and all the facts bearing thereon were to be considered in connection with this testimony, and the auditor bases his final conclusion upon “the preponderance of testimony, consisting of the declarations and admissions of David Grove, the testator, and the other facts and circumstances.” The testimony, being believed by him, we think warrants his conclusion.

There are many assignments of error, but it is unnecessary, in view of what has been said, to consider them in detail, ’inasmuch as what has been said disposes of the prin«ipal point in the case and necessarily reverses the decree of the court below.

We are, therefore, of opinion that the supplemental report, in which there was a denial of any participation in the balance by the appellant, E. I. Grove, should not have been confirmed and that the original report should have been confirmed, at least as the case stood at the time of the finding of the auditor. The decree of the court below, therefore, in confirming the supplemental report, is reversed and set aside, and the original report is reinstated and confirmed, costs to be paid by the appellee unless for cause other than shown in the exceptions filed thereto. The record is remitted to the court below, in order that the directions herein contained may be carried into effect, the costs to be paid by the appellee.


author: Per Curiam,

text:
    Commonwealth v. Hanley.

      Constitutional law — Public officers — Dairy and food commissioner— Restraining order — Act of March 13, 1895, P. L. 17.
    The office of dairy and food commissioner is a valid constitutional office, and the act of the commissioner in instituting a proceeding for a restraining order, cannot be attacked on the mere ground that there is no such office. If the commissioner exceeds his powers he may be restrained by other appropriate proceedings.
    Argued Nov. 9, 1908.
    Appeal, No. 77, April T., 1909, by defendant, from order of Q. S. Allegheny Co., June T., 1905, No. 210, making absolute rule for attachment in case of Commonwealth v. F. A. • Hanley.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Rule for attachment.
    Haymaker, J., stated the facts to be as follows:
    On February 18, 1905, an information was made before Alderman Groetzinger, charging the defendant, F. A. Hanley, with the violation of the provisions of the Act of May 29,1901, P. L.' 327, prohibiting the manufacture and sale of oleomargarine, and the defendant, having waived a hearing, was held in bail for court, and was indicted at the above number and term on June 9, 1905.
    On July 1, 1905, E. E>. Miller, agent of the department of agriculture of Pennsylvania, and acting for and by direction of the state dairy and food commissioner, presented a petition to this court, setting forth, inter alia, the purchase of oleomargarine from defendant; that an information was made, and defendant held in bail for court, and indicted on June 9,1905; and that after the commencement of that prosecution, and while the same was pending, the defendant, on June 21, 1905, violated the provisions of the said act of assembly by a similar sale of oleomargarine in said county, and the court was asked to make an order restraining the defendant from a further violation of this act of assembly until such time as the said prosecution shall have been decided and determined.
    A rule was granted July 1, 1905, on defendant to show cause why an injunction should not issue, and notice thereof was served on the defendant on July 6, 1905. Defendant having pleaded guilty to said indictment on September 2, 1905, upon hearing and testimony it was ordered and decreed on September 2, 1905, that the defendant and his agents be restrained from the further sale of oleomargarine in violation of said act until the determination of the said prosecution, and in case of conviction therein, restraining order to become permanent. Defendant was sentenced on the September 2, 1905, and no appeal was taken from said judgment. On March 12, 1906, the defendant was notified that the restraining order of September 2,1905, by reason of sentence, became permanent, and that he was thereby permanently restrained and enjoined from the further sale of oleomargarine. A certified copy of the restraining order accompanied said notice, and was personally served on the defendant on that day.
    On April 22, 1908, the said E.' D. Miller presented his petition to this court, setting forth the foregoing facts, and the further allegation that the defendant had again violated said act on September 13, 1907, in said county, by selling oleomargarine, contrary to its provisions, for which last offense an information was made against the said F. A. Hanley, above-named defendant, and on December 3, 1907-, an indictment was found, to which indictment the said F. A. Hanley pleaded nollo contendere on April 16, 1908, at No. 60, December Sessions, 1907, and for this violation of the restraining order of this court petitioner obtained a rule on defendant on April 22, 1908, to show cause why an attachment should not issue against him for contempt and disobedience of the order. On September 14, 1908, the court entered an order adjudging Hanley in contempt.

      February 26, 1909:

      Error assigned was the order of the court.

      John Marron, of Marron & McGirr, for appellant.

      Joseph A. Langfitt, of Langfitt & McIntosh, with him Harry L. Goehring, district attorney, for appellee.
   Per Curiam,

The defendant rests his appeal upon the single proposition, that as the right to institute a proceeding for a restraining order is given by the Act of May 29, 1901, P. L. 327, to the dairy and food commissioner and is denied to any other person, the proceeding must fail for lack of proper official to institute it, because the legislation creating the office of dairy and food commissioner conflicts with sec. 27, Art. III. of the constitution which reads: “No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any county or municipality may appoint such officer when authorized by law.” In the determination of the question it is not necessary to go back of the Act of March 13, 1895, P. L. 17, and the recent decision of the Supreme Court in Commonwealth v. Warren, 217 Pa. 163, in which it was authoritatively declared that neither the head of the department of agriculture, nor any one of the four subordinate officers fills an office, the creation of which is forbidden by the constitution. Speaking of the dairy and food commissioner, one of the subordinate officers above referred to, Mr. Justice Brown said: “His right to hold a lawful office is one thing; his right to exercise enlarged powers which he may not lawfully exercise is another, and, having determined that he is holding a lawful office we leave the question of his right to exercise alleged forbidden powers to be raised in some other proceeding, in which specific acts said to be performed by him under statutory powers prohibited by the constitution may be set forth and inquired into and restrained, if unlawful.” It follows that as the statutory power under which he instituted the proceeding for a restraining order is not prohibited by the constitution, the objection urged by the defendant against the validity of the restraining order and the subsequent order adjudicating him to be in contempt and awarding an attachment cannot be sustained.

The order is affirmed at the costs of the appellant.


text:
    Berg v. Flickinger, Appellant.

      Contracts — Gambling contracts — Sale of stock — Contention of parties.

    In an action by a stockbroker against a customer to recover for a loss sustained by reason of the sale of stock, the question whether the transaction did or did not involve a gambling contract is to be determined by the intention of the parties. If the plaintiff sold the stock on the order of the defendant, in good faith, expecting the stock to be delivered in pursuance of the sale, then the transaction was not a gambling one, even though the defendant so understood it.
    Argued Nov. 9, 1908.
    Appeal, No. 199, Oct. T., 1907, by defendant, from judgment of C. P. Berks Co., June T., 1906, No. 70, on verdict for plaintiff in case of Daniel E. Berg v. Martin M. Flickinger.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover a loss resulting from a sale of stock. Before Endlich, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $318. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. B. Bechtel, for appellant.
    The transaction was of a gambling nature: Bibb v. Allen, 149 U. S. 481 (13 Sup. Ct. Repr. 950); Clews v. Jamieson, 182 U. S. 461 (21 Sup. Ct. Repr. 845); Armstrong v. Bickel, 217 Pa. 173; Dows v. Glaspel, 60 N. W. Repr. 60; Waite v. Frank, 14 S. Dak. 632 (86 N. W. Repr. 645); Embrey v. Jemison, 131 U. S. 336 (9 Sup. Ct. Repr. 776); Melchert v. Tel. Co., 11 Fed. Repr. 193; Edwards v. Hoeffinghoff, 38 Fed. Repr. 635.
    February 26, 1909:

      H. P. Keiser, for appellee.
    In cases of this kind the test is the intention of parties: Taylor & Co.’s Assigned Estate, 192 Pa. 304; Armstrong v. Bickel, 217 Pa. 173; MacDonald v. Gessler, 208 Pa. 177; Young v. Glendinning, 194 Pa. 550; Irwin v. Williar, 110 U. S. 499 (4 Sup. Ct. Repr. 160).
   Opinion by

Morrison, J.,

The jury evidently found, under the evidence, that on March 15, 1906, the defendant gave the plaintiff an order to sell on the defendant’s account thirty shares of a certain stock at a figure named. The plaintiff made the sale in New York and the defendant failed to deliver the stock. The market for this stock advanced and the plaintiff was compelled to have the stock purchased in New York for delivery under the sale at an advanced price, so that there was a net loss to the plaintiff of the sum of $300.

The defendant contended, in the court below, as he does here, that the transaction was not a genuine sale of stock with any intention on the part of either party that it should be delivered; in short, that it was a mere gambling transaction and for that reason he denies any liability to the plaintiff for the $300 alleged to have been lost by him through the transaction. It may be that the defendant understood the transaction to be a bet on whether the stock would decline or advance, but the evidence fails to establish the fact that the plaintiff acted on any such theory. It may be conceded that the jury might have inferred from the evidence that it was a gambling transaction and they might have inferred that the transaction was entirely legitimate so far as the plaintiff was concerned.

In cases of this character the test is the intention of the parties. If the plaintiff sold the stock, on the order of the defendant, in good faith, expecting the stock to be delivered in pursuance of the sale, then the transaction was not a gambling one, even though the defendant so understood it. In Taylor & Co.’s Assigned Estate, 192 Pa. 304, it is said in the syllabus: “A purchase of stock for speculation, even when done merely on margin, is not necessarily a gambling transaction. If there is in good faith a purchase, then the delivery may be postponed, or made to depend on a future condition, and the stock carried on margin or otherwise, in the meanwhile, without affecting the legality of the operation. It is only where there is not under any circumstances to be a delivery, as part of and completing a purchase, that the transaction is a gambling contract.”

In Armstrong v. Bickel, 217 Pa. 173, Mr. Justice Brown speaking for the Supreme Court said: “When Bickel authorized Bacon & Company to sell the stock short for him, that is, to sell on his account stock which he did not have, and which they would be compelled to borrow for him, his undertaking with them was to reimburse them for any payments they might be compelled to make in the execution of his order, and to repay them for any losses that might result from it: Bibb v. Allen, 149 U. S. 481. On the other hand, the duty of the brokers to the customer was to protect him' against any loss that might result from disregard of the express terms of their agency, or of an obligation manifestly implied in it.” In that case the court below gave a binding instruction in favor of the plaintiffs for the amount which they lost by endeavoring to protect the defendant in the transaction. The Supreme Court affirmed the court below in entering judgment on the verdict so directed.

In MacDonald v. Gessler, 208 Pa. 177, it is said in the syllabus: “A transaction between a stockbroker and his customer cannot be stamped as a gambling transaction, unless it appears that it was the intention of both parties that the stock was not to be purchased outright, and that there was to be a mere settlement of differences. If the broker shows that it was the intent to purchase the stock and that he was always ready to deliver it when called upon to do so, the mere intention of the purchaser not to pay outright for the stock cannot give the transaction a gambling character.” In that case, Mr. Justice Thompson for the Supreme Court said: “To hold that when an order for the purchase of stock is given and the purchaser when he gives it intends the transaction to be a gambling one, that the stockbroker is also a party to a transaction of that character, when he had no knowledge of such intention on the part of such purchaser and had none of his own, would be to impute wrongful purpose without reason.”

In Young v. Glendinning, 194 Pa. 550, and in Irwin v. Williar, 110 U. S. 499, it was held that the intention to gamble must be shown to be the intention of both parties and not that of one alone.

In the present case, the burden of proving that the transaction was a gambling one rested on the defendant. The plaintiff proved to the satisfaction of the jury, that he received an order from the defendant to sell the stock at a given price; that he did so sell it and notified the defendant; that the stock advanced and the defendant failing to deliver the stock, he, plaintiff, was compelled, on account of his contract of sale, to go into the market and buy the stock at a loss of $300. The verdict was for this sum, with interest. The learned court below carefully, and very fairly, submitted the question to the jury, as to whether the transaction was a gambling one on the part of both parties or a genuine transaction at least on the part of the plaintiff. The jury found in favor of the plaintiff, that he sold and bought the stock as a genuine business transaction and in our opinion the evidence, as a whole, sustains this finding. Such being the case, the learned judge below did not err in submitting the case to the jury and in refusing judgment for the defendant non obstante veredicto, and in entering judgment on the verdict in favor of the plaintiff.

The assignments of error are all dismissed and the judgment is affirmed.