author: Head, J.,

text:
    Chester National Bank, Appellant, v. Southern Pipe Line Company.

      Pipe line companies — Leakage of oil — Proximate and remote cause— Act of stranger — Burning of mill — Negligence.
    1. In an action against an oil pipe line company incorporated under the general incorporation Act of April 29, 1874, P. L. 73, and its supplement of June 2, 1883, P. L. 61, to recover damages for the burning of a mill, where it is established that there was no negligence either in the construction, maintenance or operation of the pipe line, the court commits no error in submitting to the jury the question whether the breaking of the line was the proximate cause of the burning of the mill, where the evidence shows that the distance from the pipe line to the mill was about 800 feet, that after the break the oil spread over the ground and water between the pipe line and the mill, that an idler on the scene lighted a cigar and threw the blazing match on the ground, that the oil was instantly aflame, and was carried in this flaming condition to the walls of the mill, setting it on fire, and that under certain different conditions of time or wind or tide, the flames might not have reached the mill.
    2. When conditions group themselves into unusual or varying forms; when the inference to be drawn from established facts may change with the personalty of him who makes them; when the mind hesitates to affirm just what a reasonable man would likely do under the circumstances, then the ascertainment of the legal duty becomes a mixed question of law and fact and must be submitted to a jury.
    Argued Nov. 19, 1908.
    Appeal, No. 194, Oct. T., 1908, by plaintiff, from judgment of C. P. Del. Co., Sept. T., 1906, No. 164, on verdict for plaintiff in case of Chester National Bank v. Southern Pipe Line Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for the burning of a mill. Before Johnson, P. J.
    From the record it appeared that on April 25, 1906, a leak occurred in defendant's pipe line, and that large quantities of oil escaped and flowed over land and water intervening between the pipe line and plaintiff's mill. A crowd assembled, and one of the men, a stranger, struck a match to light a cigar and threw the lighted match on the ground. As a result the oil took fire and the flames were communicated to the mill and destroyed it. The relative situation of the mill and the pipe line and other circumstances connected with the accident are set forth in the opinion of the Superior Court.
    The court charged in part as follows:
    [The destruction of -this mill must have been the natural consequence, the natural and probable consequence of the break in that pipe, and there must have been no independent and intervening cause without the happening of which this fire would not have occurred.
    Now, was there an independent, intervening cause which, if absent, there would have been no fire? If there was, this plaintiff cannot recover for the loss of that mill. Now> the intervening cause that is set up here by the defendant is this boy or young man, Bryan, and it is contended by the defendant that they had no control over Bryan, had nothing whatever to do with him, and that without him, his appearing upon the scene and lighting this match and throwing it upon the ground, this mill would not have been burned, and their contention is that that is an independent, intervening cause over which they had no control and which they could not foresee, and, therefore, they are not liable. The defendant further contends that there was another independent intervening cause, and if it had been absent there would have been no burning of the mill, and that was this stream, and you will say to what extent the current of that stream, whether it carried the oil down in front of the mill and thus contributed to its burning — whether without that there would have been no burning of the mill, and whether that was an intervening, independent cause which the defendant could not reasonably and is not called upon to foresee.
    This is the great point in this case so far as the mill and machinery is concerned. We will go to the lot afterwards. If you find from all the evidence in this case that this oil flowed out of the pipe — that is not denied — and that the burning of this mill was the natural and probable consequence of that act, and that there was no intervening cause except natural causes — no intervening cause without the happening of which it would not have occurred — -then this plaintiff cannot recover so far as the mill is concerned; but if you find that it was the natural and probable consequence of that break in the pipe and the flow of the oil from it, and that there was no intervening cause without which the burning would not have taken place, then they are liable, under this act, and must pay whatever damage this plaintiff suffered.] [1]
    [If you find that this breaking of this pipe, that the burning of this mill was the natural and probable consequence of that break in the pipe, and the flow of the oil, and there was no intervening cause between this break and the fire, without the happening of which the fire would not have taken place, then award to the plaintiff whatever the value of the property burned, that is, the mill and machinery, will be. If you do not find that — find that this was not — we repeat it, because these terms are probably new to you — not the natural and probable consequences, that is, the burning — find there was an intervening cause, without the happening of which there would have been no fire, then they are not entitled.] [2]
    [There is no doubt the pipe leaked; there is no doubt it ran down the road; no doubt that the boy fired it by throwing a match into it; no doubt that it burned the mill, and the only question is, so far as this verdict is concerned, and recovery for the burning of the mill — was there an intervening, independent cause without the happening of which there would have been no fire? If there was, this plaintiff cannot recover. If there was not, in the judgment of the jury, and it was the natural and probable consequence, the burning was the natural and probable consequence of this break, then you may find for the plaintiff.]

    Plaintiff presented these points:
    5. If the jury find that the fire which damaged the plaintiff’s property was caused by a stranger negligently or accidentally striking a match on the highway, at a time and place when oil was escaping from the defendant’s pipe, and flowing in such quantities as to make a conflagration from such cause possible or probable, and that the presence of oil on the highway was due to the negligence of the defendant, and that this negligence of the defendant in permitting the escape of the oil, concurring with the act of the match lighter, was necessary to and did cause the conflagration, then the defendant is responsible for the damages thus caused. Answer: That is affirmed; unless you find that this burning was not the natural and probable cause, and there was no independent intervening cause without which this fire would not have happened. [4]
    7. If the jury find that the fire was caused by a stranger negligently or accidentally striking a match on the highway, at a time and place when and where oil was escaping from the defendant’s pipe and flowing along the highway and into the creek in such quantities as to make an accidental conflagration from such cause, and the destruction thereby of the plaintiff’s property possible or probable, and that in consequence of such fire the plaintiff’s mill was consumed, and that the escape of the oil, concurring with the act of the match lighter, was necessary to and did cause the conflagration, then the defendant is responsible for the plaintiff’s damage, even although the oil did not escape through the defendant’s neglect. Answer: That is affirmed, with the remarks that we have repeated over and over again relative to the natural and probable consequence and the intervening cause. [5]
    8. The escaping oil was the proximate cause of the injuries complained of in this case, if they were its natural and probable consequences, and as such ought to have been foreseen by the defendant as likely to result from the escape of its oil. Answer:
      We decline to say that it was the proximate cause; but we submit to the jury the question whether it was or not. [6]
    Verdict and judgment for plaintiff for $300. Plaintiff appealed.

      Errors assigned among others were (1-6) above instructions, quoting them.

      George P. Rich, with him George B. Lindsay, William B. Harvey and Frank R. Shattuck, for appellant.
    The defendant company is liable for the damages caused by escaping oil from its pipe, in the absence of proof that the escape of such oil was due to its negligence: Denniston v. Phila. Co., 161 Pa. 41; Hauck v. Pipe Line Co., 153 Pa. 366; Rogers v. Traction Co., 182 Pa. 473.
    The court below erred in leaving the question of proximate cause to the jury: Wood v. R. R. Co., 177 Pa. 306; Gudfelder v. Ry. Co., 207 Pa. 629; Douglas v. R. R. Co., 209 Pa. 128; West Mahanoy Township v. Watson, 116 Pa. 344; Behling v. Pipe Lines, 160 Pa. 359; Penna. R. R. Co. v. Hope, 80 Pa. 373; Haverly v. R. R. Co., 135 Pa. 50; Sturgis v. Kountz, 165 Pa. 358; Scott v. Ry. Co., 172 Pa. 646; Burrell Twp. v. Uncapher, 117 Pa. 353; Cohn v. May, 210 Pa. 615; Bannon v. R. R. Co., 29 Pa. Superior Ct. 231.
    So far as the act of the stranger in starting the fire may be considered as the proximate cause of the injury, this uase, it is conceived, is settled by Koelsch v. Philadelphia Co., 152 Pa. 355. Either that case is not good law, or the instructions to the jury in this case were erroneous: Oil City Gas Co. v. Robinson, 99 Pa. 1.
    In submitting to the jury the question whether the water of the creek was not an intervening cause, totally unlooked for and not to be expected, which by permitting the burning oil to float across its narrow width to the mill on the opposite side, and thus set it on fire, became the proximate cause of the accident, the court followed the law as it understood it to be laid down in Pennsylvania R. R. Co. v. Kerr, 62 Pa. 353, and Hoag v. Railroad Co., 85 Pa. 293.

      The first of these cases has been repeatedly discredited and practically overruled. The facts of the second are so totally dissimilar to the facts in this case, that it is difficult to see how it can be applied as a ruling decision here: Penna. R. R. Co. v. Hope, 80 Pa. 373; Haverly v. R. R. Co., 135 Pa. 50; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122.

      O. B. Dickinson, for appellee.
    The court did not err in submitting the question of proximate cause to the jury: R. R. Co. v. Kerr, 62 Pa. 353; Hoag v. R. R. Co., 85 Pa. 293; Douglass v. R. R. Co., 209 Pa. 128; R. R. Co. v. Hope, 80 Pa. 373; Haverly v. R. R. Co., 135 Pa. 50; Scott v. Ry. Co., 172 Pa. 646.
    July 14, 1909:
   Opinion by

Head, J.,

The appellant does not contend that the learned trial court improperly admitted or rejected any evidence on the question of the alleged negligence of the defendant; nor that the existence of such negligence should have been declared as a matter of law; nor that, in submitting this question to the jury, any erroneous instructions were given. In so far, therefore, as the plaintiff rested its case on the proposition that the defendant was negligent it is concluded by the -verdict, which establishes there was no negligence either in the construction, maintenance or operation of the defendant’s pipe line.

The plaintiff, however, contends its right to recover exists independent of any act of negligence by the defendant because the company was incorporated in 1890, as an oil pipe line company, under the provisions of the act of 1874, and its supplements. That the Act of June 2, 1883, P. L. 61, which is a supplement to the act of 1874, contains this proviso: “And provided further that any company laying a pipe line under the provisions of this act, shall be liable for all damages occasioned by leakage, breaking of pipes or tanks, etc.”

That, as a result of this enactment, there was imposed on the defendant the liability of an insurer against all injuries to person or property that would follow or be caused by a leak in its line.

Inasmuch as the learned court below held with the plaintiff on this question, and the defendant has not appealed, the correctness of this conclusion is not now before us for review and we express no opinion concerning it.

In so holding, however, the court confined the liability of the defendant to such injuries as were the natural and probable consequences of the leakage in its line; in other words, to the results of which the leakage could be legally said to be the proximate cause. To the correctness of this the learned counsel for appellant frankly assents.

But the court submitted to the jury, as a matter for their determination under all the evidence in the case, the question whether or not the break in the defendant’s pipe line and the consequent escape of the oil, was the proximate cause of the burning of the plaintiff’s mill. If this action of the learned trial court was correct this appeal presents but little else on which we could be asked to reverse the judgment.

Our books of reports exhibit a multitude of cases in which our courts have pointed out how the proximate cause — legally speaking — of the last of a chain of events, may be distinguished from an intervening or independent cause. Most if not all of these cases were actions founded on negligence. In Hoag v. Railroad Co., 85 Pa. 293, Mr. Justice Paxson, speaking for the court, said: “In determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” This language has been frequently cited with approval: South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Morford v. Sharpsville Borough, 28 Pa. Superior Ct. 544,—and leaves nothing further to be said on the subject.

Now we think it must be conceded that if, in the disposition of a cause, it becomes necessary to ascertain what is reasonable, ordinary, natural or probable, our only recourse is to the common experience of average men and, under our system of jurisprudence, the jury has long been thought to be the tribunal best qualified to determine and declare the result. We may grant that courts not infrequently have to deal with situations of such constant recurrence that the rule of the reasonable and ordinary has become so manifest and so generally recognized that it may be properly formulated into a rule- of law. But, as we said in Portland Ice Co. v. Connor, 32 Pa. Superior Ct. 428, “ When conditions group themselves into unusual or varying forms; when the inference to be drawn established facts may change with the personality of him who makes them; when the mind hesitates to affirm just what a reasonable man would likely do under the circumstances, then the ascertainment of the legal duty becomes a mixed question of law and fact and must be submitted to a jury.”

The important facts in the case, and they may be fairly said to be without dispute — as we gather them from the record and from a detailed plan, drawn to a scale and conceded to be correct, may be thus stated: The pipe line of defendant, buried in the ground, crossed the Chester pike at a point about 700 feet west of Crum Creek. This stream is shown on the plan to be from eighty to 100 feet wide. It is said by the appellee, in its paper-book, that it is a tidal stream. The evidence is silent on the subject, but, if it be a fact, it is such a physical fact of nature, that a court could properly take judicial notice of it without evidence. The highway is carried across this stream by a tight bridge. Just below the bridge and a few feet back from the east bank of the creek stood the mill of the plaintiff. There is-shown a narrow channel probably at one time a mill race, through which the waters of the creek, when at a sufficient stage, could flow to the walls of the mill building. The distance from pipe line to mill was 807 feet. The ground gradually sloped from line to stream, the fall to the water surface being sixteen feet in the distance mentioned. The break probably occurred about eight o’clock in the morning, and the oil began to flow, first in the water tables, then gradually spreading over the road itself and finally upon and over the flat land adjoining on both sides. The map shows that on the north side of the road,’ where the bulk of the escaping oil was carried, the ground for about 300 feet west of the creek is a dead level.

A number of people quickly gathered. One of these, a stranger to the defendant, in no way under its control, a mere idler on the scene, ignorant or heedless of the manifest danger of such an act lighted a cigar and threw the blazing match on the ground. Instantly the oil was aflame. By this time a considerable quantity of it had evidently reached the creek and spread over its surface. One witness, describing the swift, almost instantaneous, spread of the flames, said: “When it struck the creek this arch over the road formed the furnace for it, like, and it ran both ways.” The condition of the water was such that the blazing oil was carried right up to the walls of the plaintiff's mill and it was destroyed. As soon as the oil that had escaped, before it was fired, had been consumed, the flames naturally receded to the immediate locality of the break and there continued to burn until the flow of oil in the line was stopped.

It seems clear enough to us that the destruction of the mill, under these circumstances, was in no sense the necessary or inevitable consequence of the break in the pipe. It was not even within that domain of imminence or probability that would have existed had the defendant, in the prosecution of its own business, maintained a fire near its line from which the flames were communicated to the escaping oil. We must now concede the possibility that a grown up man, through ignorance, curiosity, or general heedlessness might cast a burning match practically into a stream of flowing oil; but it is not too much to say that such an act would be about the last to be expected from a rational human being.

The Deshong house, which stood about halfway between the break and the creek and within, perhaps, fifty feet of the point where the fire started, escaped, while the mill was destroyed. Had the match come a little sooner, before any body of oil had reached the water, the oil would have been consumed, the mill saved. If the stream be a tidal stream, one stage of the tide would have carried the oil away from the mill until the flames had expended themselves. Under certain conditions of wind and current the burning oil might have been carried downstream close to its west bank, passing the mill but destroying some other building lower down.

Under the facts we have recited and the possible — and more or less probable — conditions to which we have adverted, the learned trial court did not undertake to declare, as matter of law, that the plaintiff’s loss was due to the intervention of an independent cause, thus relieving the defendant from responsibility. Conversely, to have instructed the jury that the break in the line was the proximate cause of the burning of the mill, leaving to them merely the assessment of the damages, would have been, in our opinion, a stretch of judicial power beyond the limits of established precedents. The submission of the question to the sound discretion of the jury, under proper instructions, was a disposition of the case in harmony with the long line of authorities cited by counsel on both sides.

The case of Koelsch v. Phila. Co., 152 Pa. 355, we cannot regard as authority for the appellant’s contention that the court below should have disposed of the question of proximate cause as a matter of law. There the defendant had negligently permitted gas from its line to fill plaintiff’s cellar. It sent an employee, Householder, to find or repair the leak. One Walters went with him. He was either a fellow servant or .a volunteer. One of them struck a match in the cellar and the explosion followed. The court below submitted the case to the jury, saying: “In our opinion it makes no difference whether Walters struck the match or the agent of the company, they were both together in a common employment.” A verdict and judgment for the plaintiff followed. But neither in the facts of the case, nor in the opinion of the Supreme Court affirming the judgment, can we discover any foundation broad enough to support the conclusion which the able counsel for appellant seek to rest thereon.

In a portion of the considerable excerpt from the charge, which is made the subject of the first assignment, there is undeniably some confusion or obscurity probably due to haste incident to a trial. Reading part of it by itself might leave the impression the court regarded the existence of the water in the creek, even under normal conditions, as measuring up to the standard of an independent cause. If so, this was almost immediately corrected, and we think when the charge is regarded as a whole, the jury must have correctly understood the nature of the question submitted to them.

Being of the opinion the case was tried along proper lines and that the record exhibits no reversible error, the assignments are all dismissed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Geiser Manufacturing Company, Appellant, v. Frankford Township.

      Evidence — Writings—Minutes of township supervisors — Parol evidence.

    1. The minutes of township supervisors duly entered in the minute book of the township clerk and allowed to remain without question for a considerable period of time, are conclusive of the fact that a meeting therein described was held, and cannot, in the absence of any allegation or proof of fraud, be contradicted by parol evidence on the trial of a collateral issue.

      Practice, C. P. — Trial—Withdrawal of testimony.

    2. It is reversible error for a trial judge after having excluded certain testimony and directed the jury to disregard it, to refer to such testimony again in answering a point.
    Argued March 8, 1909.
    Appeal, No. 2, March T., 1909, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1905, No. 175, on verdict for defendant in case of The Geiser Manufacturing Company v. Frankford Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover for value of a traction engine. See 34 Pa. Superior Ct. 146. Before Sadler, P. J.
    At the trial when G. H. Fry was on the stand the following offer was made:
    It is intended to prove by the witness on the stand that the minutes as set forth on the pages named do not truly represent what occurred at any meeting on September 1, 1904. It is intended to prove that there never was such a meeting as set forth by these minutes; for the purpose of contradicting these minutes.

      Mr. Biddle: Objected to. That it having been admitted that the book in question is the regular Township Book, kept by the township clerk, in accordance with the act of assembly, it is the best evidence of what took place, and that in the absence of an allegation of fraud or collusion in making it up, no testimony to contradict it is admissible; the proposed evidence is incompetent for the purpose offered.
    Discussion.
    Mr. Sadler: The defendant proposes to prove by the witness on the stand that the minute of September 1, 1904, which purports to be a minute passed at a meeting held by the supervisors of the said township, and recorded in the Minute Book, does not show the action of the supervisors on that date, or on any other date, and what purports to be the record, is not, as a matter of fact, truly recorded.
    Mr. Biddle: Your purpose?
    Mr. Sadler: For the purpose of showing that no such action was taken on that date.
    Mr. Biddle: We renew our objections.
    The Court: Objections overruled; plaintiff excepts and the bill is sealed. [3]
    “A. Yes; two years ago.”
    Mr. Berg: “Q. A few weeks before the other trial? A. Yes. Q. That is the first time that you knew these minutes were in the book? A. Yes; that is the first I saw them. Q. That is the first you knew of them? A. Yes.”
    Fourth assignment. The learned court below erred in admitting over plaintiff's objection, the evidence of J. E. Mininch to contradict the record of the Township Minute Book, said offer, ruling and evidence being as follows:
    When J. E. Mininch was on the stand Township Book No. 2, pages 2-2 was shown witness.
    It is intended to prove by the witness on the stand that in 1904 he was township clerk; that he put these minutes on the Township Book at the request of one of the then supervisors, who told him that he had received the same from his attorney, and wanted these minutes put on the book; further, that these minutes had never been seen or read or heard read by Mr. Fry, one of the then supervisors, for the purpose of showing that they do not represent a meeting of the township supervisors.
    Mr. Biddle: Objected to.
    That it is an effort to contradict a record by parol evidence, without any allegation of fraud or collusion in the entry of minutes, it being admitted that there was a meeting of the supervisors at the residence of the witness at or about the time the minute was entered in the book; the evidence is incompetent for the purpose offered, or for any purpose.
    The Court: The witness may state the circumstances under which the minute was made, and when it was made, if he can; he may also state that it was never read or heard read by Fry, or not entered-by his direction, or with his assent, if he can; the plaintiff excepts and the bill is sealed. [4]
    Plaintiff presented these points:
    4. Until the time for the payment of the engine arrived, the supervisors never made any complaint as to the fairness of the transaction, and never to the time of the trial, of the right of Mentzer to hold the new engine in ratification of their contract. Answer: Affirmed. There certainly is no evidence of any dissatisfaction, unless it would appear from the interview between Fry and young Kutz. We, however, affirm this point without qualification. [2]
    8. There is sufficient evidence in this case to warrant the jury in treating the order of the supervisors for the engine and the acceptance of it by delivering it to Mentzer as a joint ratification of their former consultations and deliberations so as to make the township liable for their action. Answer: Refused as stated; we leave this for your determination. [8]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (2, 8) above instructions, quoting them; (3, 4) rulings on evidence, quoting the bill of exceptions, and (5) that the court erred in not instructing the jury as to the character of the evidence of a record, such as the Township Minute Book, and the quality of parol evidence that is necessary to contradict such a record.

      E. M. Biddle, Jr., with him C. C. Bashore, for appellant.
    The admission of incompetent evidence even if accompanied by instructions to the jury to disregard it as entitled to no weight is reversible error. “Impressions once made are not easily erased:” Shaeffer v. Kreitzer, 6 Binn. 430; R. R. Co. v. Baxter, 32 Vt. 805; Fisher v. Penna. Co., 34 Pa. Superior Ct. 500.
    Admission of parol evidence to contradict township records was error: Weir v. State, 96 Ind. 311; State v. Main, 69 Conn. 123 (37 Atl. Repr. 80); People v. Madison County, 125 Ill. 334; Morrison v. City of Lawrence, 98 Mass. 219; Andrews v. Boylston, 110 Mass. 214; Halleck v. Boylston, 117 Mass. 469; Com. v. King, 17 Pa. Dist. Rep. 785; Avoca Boro. v. St. Ry. Co., 7 Kulp, 470; Roland v. School Dist., 161 Pa. 102; Whitehead v. School Dist., 145 Pa. 418; McCrea v. School Dist., 145 Pa. 550.

      S. B. Sadler, with him Herman Berg, Jr., for appellee.
    Where incompetent evidence is withdrawn before argument it does not cast such a taint upon the relevant testimony as will justify a reversal of the judgment: Sidney School Furniture Co. v. School Dist., 158 Pa. 35; Beard v. Heck, 13 Pa. Superior Ct. 390; Com. v. Crossmire, 156 Pa. 304.
    Parol evidence was admissible to contradict the minutes: Altoona City v. Bowman, 171 Pa. 307; Gearhart v. Dixon, 1 Pa. 224; Sidney School Furniture Co. v. School Dist., 158 Pa. 35; Thompson v. Chase, 2 Grant, 367; Thorne v. Ins. Co., 80 Pa. 15; Poindexter v. McDowell, 84 S. W. Repr. 1133; Hopkins v. Danby School Dist., 27 Vt. 281; Miller v. Fichthorn, 31 Pa. 252; Johnson v. Smith, 165 Pa. 195; McDermott v. Ins. Co., 3 S. & R. 604.
    July 14, 1909:
   Opinion by

Head, J.,

When this case was formerly before this court its material facts were fully reviewed by our Brother Oklady. We see no necessity to restate them here. The plaintiff in support of its claim had offered, inter alia, the regular minute book in which the official actions of the supervisors were recorded by the township clerk in accordance with the statutory requirement. To overcome the effect of this record evidence, the defendant placed upon the witness stand one of the two supervisors at the time the minutes were made and offered to prove the following: “It is intended to prove by the witness on the stand that the minutes as set forth on the pages named do not truly represent what occurred at any meeting on September 1, 1904. It is intended to prove that there never was such a meeting as set forth by these minutes; for the purpose of contradicting these minutes.” The objection being taken that the minutes were the best evidence of what had transpired, and that in the absence of any allegation of fraud or collusion in making them up, it was not competent to contradict them by parol testimony; the defendant then supplemented the offer thus: “The defendant proposes to prove that what purports to be a minute .... recorded in the minute book, does not show the action of the supervisors on that day, or on any other day and what purports to be the record is not as a matter of fact truly recorded, for the purpose of showing that no such action was taken on that day.” The objection was then overruled, the offer admitted, and a bill of exceptions sealed.

By the Act of April 15,1834, P. L. 537 it is provided “that the town clerk in each township shall be clerk to the supervisors of the same township, and as such shall keep a record of the proceedings of said officers, .... and the book or books, so to be provided by the town clerk, shall be kept by him and shall be open for the inspection of any person who may have occasion to search therein.” The evils which flow from a failure to obey this statute, thus leaving the future investigation of important township affairs to be conducted only in the light of the uncertain memories of former officials, have been more than once pointed out by this court. It is not denied that the book which was produced and offered in evidence was the regular minute book of the supervisors of Frankford township. It was in the custody of the proper officer, and the minutes there appearing had been recorded and duly certified by him. They covered two separate meetings of the board, one on September 1,1904, relating particularly to the purchase of the new engine, the subject-matter of the present dispute, and the subsequent meeting of September 17, from which it appears that on that day the minutes of the previous meeting were read and approved and other important business of the township transacted. These minutes have remained on the record without any attempt on the part of the supervisors, or either of them, to correct, amend, or otherwise change them. Under such circumstances, what was their true- evidential value? The act of 1834, already quoted, declares they shall constitute the official record, and no reason is apparent to us why they should not stand in the same category as the minutes of the proceedings of a school board, which likewise are required to be kept under the provisions of an act of assembly.

In Whitehead v. School District, 145 Pa. 418, where the question was the regularity of the discharge of a school teacher, Mr. Justice Clark said: “ But the action of the board in effecting the dismissal of a teacher must be set forth upon the minutes as required by the statute. The minutes are therefore the best evidence of the teacher’s dismissal, and are conclusive, unless the board may be shown to have acted corruptly or in bad faith, and to have clearly abused its powers. The admission of evidence on the part of the defendant as to the circumstances of cruelty alleged, was therefore erroneous.” This language was cited with approval in McCrea v. School District, 145 Pa. 550.

The general rule throughout the several states of the union is thus declared in 24 Am. & Eng. Ency. of Law (2d ed.), 197: “The doctrine that such records (other than legislative and judicial) are conclusive, receives much support from a large number of cases in which it is laid down that they cannot be contradicted by parol or other extrinsic evidence, while there are very few cases in which it has been held admissible to contradict directly such records by evidence of this character. That such records may be aided or explained by parol ox-other extrinsic evidence is undisputed.”

In the printed brief of the learned counsel for appellant we find the following excerpts from three of the many cases cited in the Encyclopedia in support of the rule stated: “In a collateral inquiry, a record of the boax’d of county commissioners showing an act done on a day certain, cannot be questioned by proof that on that day the board was not in session:” Weir v. State, 96 Ind. 311. “The record of a public board cannot be collaterally attacked by the oral impeaching testimony of its secretary:” State v. Main, 69 Conn. 123. To the same effect are People v. Madison County, 125 Ill. 334; Morrison v. City of Lawrence, 98 Mass. 219, and others.

We do not by the citation of these authorities intend to carry the doctrine a step beyond the limits defined in Whitehead v. School District, 145 Pa. 418. Fraud vitiates everything it touches, and it would be unreasonable to hold that any record possesses such a character that no means are left by which it may be made to speak the truth where the finger of fraud has written falsehood into it. In the present case the minutes were prepared by counsel for at least one of the supervisors in accordance with the facts as stated by him. They were sent to the clerk of the board. The supervisors met at his house. After the meeting the clerk transcribed the minutes into the book, and in due course those of the following meeting certifying to their formal approval. He does not allege that he was corruptly induced to do this by the plaintiff, or by anybody else; nor is it alleged, much less proven, that the plaintiff had anything whatever to do with the preparation or recording of these minutes. The most that is said, by way of attack upon the minutes, is that one of the supervisors declined to look at them or read them. There is no evidence that he protested against the recording of them, or alleged that they untruly set forth what the supervisors had done. Nor did the supervisors, at any time after this dispute had arisen, take ’ any steps to correct, in a proper way, the mistake, if any, in the history of their transaction as it had been officially recorded.

Under these circumstances, to permit the township officers to come into court, on the trial of a collateral issue, and swear away the record which had been officially made and permitted to remain without question for a considerable period of time, would seem to us to be a practical nullification of the provisions of the act of 1834 requiring such record to be kept. In such event, the record would be worse than useless, because in many cases one who relied on it might find himself in a worse position than if it had never been made. We think the learned trial judge should have explained to the jury that these minutes constituted the official record of the township’s acts; that such record was kept in obedience to a positive legislative enactment, the wisdom of which is manifest, and that it was conclusive, in a collateral proceeding, as to what had transpired unless it could be successfully attacked and overthrown by showing that it was a record .of fraud and collusion. The third, fourth and fifth assignments of error are sustained.

When one of the supervisors was on the witness stand, the court permitted him to testify to a conversation he had with a son of the agent of the plaintiff as to the extent of the damage which had been done to the engine of Mentzer when it went through the township bridge. This testimony was without doubt damaging to the plaintiff’s case. It was admitted over the objection of the plaintiff’s counsel. It was afterwards excluded and the jury directed to disregard it. In its fourth point, the plaintiff asked the court to say to the jury, “Until the time for the payment of the engine arrived, the supervisors never made any complaint as to the fairness of the transaction, and, never to the time of the trial, of the right of Mentzer to hold the new engine in ratification of their contract.” The court answered, “Affirmed. There certainly is no evidence of dissatisfaction unless it would appear from the interview between Fry and young Kutz. (This being, as we understand, the testimony which was stricken out.) We, however, affirm this point without qualification.” With the record in this condition, we do not feel able to say that the jury may not have been prejudiced against the plaintiff’s case by the admission of the incompetent evidence. After evidence has been improperly received, it is always a grave question whether striking it out and directing the jury to disregard it, completely obliterates the effect of it. Why the court after having thus undertaken to repair the error in admitting the testimony, saw fit to refer to the conversation in the answer to the point, we are unable to say. We think the point should have been affirmed without any qualification, and under the circumstances stated, we feel obliged to sustain the second assignment.

By its eighth point (eighth assignment), the court was asked to instruct the jury that “there is sufficient evidence in this case to warrant the jury in treating the order of the supervisors for the engine, and the acceptance of it by delivering it to Mentzer, as a joint ratification of their former consultations and deliberations, so as to make the township liable for their action.” The court answered: “Refused as stated; we leave this for your determination.” On the former appeal this court had stated, in the exact language of the point, its opinion that there was sufficient evidence to carry the case to the jury. This was intended, of course, as a direction to guide the court below in the new trial which was the result of that appeal. The learned court, in submitting the case to the jury, obeyed the direction thus given. We are not prepared to say, however, that any reversible error was committed in declining to affirm the point as a proper instruction to the jury, for the reason that, if affirmed as presented, without qualification or explanation, the jury might have been led to think that there was no other course open to them except to find for the plaintiff. The sufficiency of the evidence offered was a question of law for the court, and not one of fact for the jury. The learned court below, in submitting the case to the jury, affirmed in the most practical way the proposition that the evidence was sufficient, and we cannot see in what way the plaintiff was injured by the refusal to affirm the point as part of the court’s instructions to the jury. The eighth assignment is overruled.

We have carefully gone over the numerous remaining assignments, and, without discussing them, we think it sufficient to say that we discover no error in any of them that would justify a judgment of reversal.

The whole marrow of the case, and the legal principles applicable to the facts of it, are so clearly set forth in the former opinion of our Brother Orlady, that we conclude by quoting from it: “Independent of the record made in the township book, a jury would be clearly warranted in finding from the testimony that the question of the liability of the township to Mentzer was carefully considered by the two supervisors, and that liability was properly adjusted by their securing for him a new engine in payment of his claim for the injuries to the old one, and that in furtherance of this settlement of a claim against the township, they signed the order for the engine, directing that it should be consigned to themselves and delivered to Mentzer, after they provided for payment of the freight. Until the time for the payment of the engine arrived they never made any complaint as to the fairness of the transaction, and never to the time of the trial, of the right of Mentzer to hold the new engine in ratification of their contract. . . . There is sufficient in this record to warrant a jury in treating their order for the engine and the acceptance of it, by delivering it to Mentzer, as a joint ratification of their former consultations and deliberation as so to make the township liable for their action. The debt due to Mentzer by the township is paid, the only question now is who should be the paymaster, the plaintiff or the real debtor?”

Judgment reversed and a venire facias de novo awarded.


author: Rice, P. J.,

text:
    Yeingst, Appellant, v. Philadelphia, Harrisburg & Pittsburg Railroad Company.

      Railroads — Widening road — Consolidation and merger — Acts of February 19, 1849, P. L. 79, and March 17, 1869, P. L. 12.
    1. The Act of March 17, 1869, P. L. 12, relating to the widening and straightening of railroads applies to a railroad company formed by the merger and consolidation of two railroad companies having powers conferred upon railroad companies by the Act of February, 19, 1849, P. L. 79.
    2. Where a railroad company is formed by the consolidation and merger of two other companies, a private suit cannot attack the validity of a special act incorporating one of the companies, because of a deficiency in the title of the act. Such a question can only be raised by the commonwealth in a direct proceeding for that purpose.

      Argued March 8, 1909.
    Appeal, No. 8, March T., 1909, by plaintiff, from decree of C. P. Cumberland Co., March T., 1907, No. 2, dismissing bill in equity in case of William Yeingst v. The Philadelphia, Harrisburg & Pittsburg Railroad Company.
    Before Rice, P. J.', Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain condemnation of land by a railroad company for widening its right of way. Before Sadler, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the bill.

      B. W. Woods, for appellant.

      Conrad Hambleton, with him John W. Wetzel, for appellee.
    July 14, 1909:
   Opinion by

Rice, P. J.,

The Act of March 17,^1869, P. L. 12, provides “that it shall and may be lawful for any railroad .... company, now or hereafter incorporated by or under any law of this commonwealth, to widen, .... enlarge and otherwise improve the whole or portions of their lines of railroads .... whenever in the opinion of the board of directors of any such company the same may be necessary for the better securing the safety of persons and property, and increasing the facilities and capacity for the transportation of traffic thereon and for such purpose to purchase, hold and use or enter upon, take and appropriate land and materials.” The act then provides for compensation to the owner, and, in case of inability to agree with him, for ascertainment and payment of the same in the manner provided in the eleventh section of the act of February 19, 1849. In Dryden v. Pittsburg, Virginia and Charleston Railway Co., 208 Pa. 316, the act of March 17, 1869, was applied to a railroad company incorporated in 1867 by a special act, which by its charter was granted all the powers and made subject to all the provisions of the general railroad act of 1849. We entertain no doubt of its applicability to a railroad company formed by the merger and consolidation of two railroad companies having those powers.

In the written agreement as to the facts- of the present case, which was submitted to the court upon the trial, appears the following: “The defendant is a corporation of the state c.c Pennsylvania incorporated under the following acts of assembly, charters, mergers and other proceedings.” Then follows a recital of the acts, mergers and other proceedings, a pretty full abstract of which is set forth in Commonwealth v. Philadelphia, Harrisburg and Pittsburg Railroad Co., 23 Pa. Superior Ct. 235. As will be seen by reference thereto, the defendant company was formed by the consolidation and merger of the Harrisburg Terminal Railroad Company and the Harrisburg and Shipensburg Railroad Company, which latter company had acquired all the rights, powers, privileges, franchises and immunities of the Harrisburg and Potomac Railroad Company, originally, in name,. the Miramar Iron Company. The Harrisburg Terminal Railroad Company was incorporated under the act of 1868, and by virtue of the fifth section of that act was entitled to exercise all the rights, powers and privileges, and was subject to all the restrictions and liabilities of the act regulating railroad companies approved February 19, 1849, and the supplements thereto, as fully and as effectually as if the said powers were specially incorporated in its charter. But it is contended that by reason of the provisions of the act of April 30, 1869, the Miramar Iron Company had “ the rights not of a railroad company but of a transportation company” (we quote from brief of appellant’s counsel) and that we so held in the case cited. The deduction which counsel draws is, that it was the clear intention of the legislature that the act of March 17, 1869, should not apply to that company, and hence does not apply to the defendant company. The argument is based on false premises. As shown by the recital of the provisions of the act of April 30, 1869, in that case and our comments on the same, the clear legislative intent was, that in the construction and operation of its railroad or railroads the company should enjoy all the rights, powers and privileges of the general act of 1849 regulating railroad companies, also all the rights, powers and privileges of a general transportation company, and that its railroad when completed should not be restricted in its use to the carriage of the company’s products to market, but should be a public highway for the conveyance of passengers and the transportation of freight.- The contention that such a corporation is not a railroad company within the meaning of the merger acts or the act of March 17, 1869, cannot be sustained.

The other ground upon which the appellant relies is that the act of 1869 incorporating the Miramar Iron Company is unconstitutional because notice is not given in its title that it related to anything but an iron company. This ground of objection to the validity of the charter of the consolidated company, the defendant in the case, was considered at length in the case cited, and the conclusion was reached, after full deliberation, that even if the validity of its charter could be attacked by the commonwealth notwithstanding its unequivocal acts recognizing it — a point we do not admit — it cannot be questioned by anyone except the commonwealth, nor by the commonwealth except in a direct proceeding instituted for that purpose. Upon full reconsideration of the question we adhere to that conclusion. It is not in conflict with either of the cases cited by the appellant’s counsel when it is considered in the light of the facts set forth in the agreement of facts upon which the case was tried, and is supported by many other cases.

It may be that the words of the agreement under which the defendant was permitted to enter and to make the improvements the use of which is now sought to be restrained, were broad enough to reserve to the plaintiff the right to compel the removal of them from his land, but it is doubtful whether such was the intention of the parties. If it was not, the learned judge below has shown conclusively that the plaintiff was barred by his laches. We do not say that his construction of the agreement was not the correct one. But in view of our conclusion of the main question it is unnecessary to express a more decided opinion upon the effect of the agreement.

The decree is affirmed at the costs of the appellant.


text:
    Martin, Appellant, v. Philadelphia, Harrisburg & Pittsburg Railroad Company.
    Argued March 8, 1909.
    Appeal, No. 9, March T., 1909, by plaintiffs, from decree of C. P. Cumberland Co., March T., 1907, No. 3, dismissing bill in equity in case of Anna M. Martin et al., children and heirs at law of Reuben Martin, deceased, v. The Philadelphia, Harrisburg, & Pittsburg Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    July 14, 1909:
   Opinion by

Rice, P. J.,

As stated by the learned president judge of the common pleas there is no difference between this case and that of Yeingst against the same defendant, excepting that here all the land taken borders on the old right of way and was devoted to the mere widening of the same, while in the Yeingst case it appears to have been used for straightening the former road and is not wholly immediately along that theretofore appropriated and occupied by it. The material questions, however, are the same, and for the reasons given in the opinion in the Yeingst case, ante, p. 106, the same decree must be entered.

The decree is affirmed at the costs of the appellant.


author: Morrison, J.,

text:
    Donnelly v. Buffalo & Lake Erie Traction Company, Appellant.

      Negligence — Street railways — Getting on car — Sudden start of car — Case for jury.

    1. In an action by a woman against a street railway company to recover damages for personal injuries sustained while getting on a car, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained where the plaintiff and her two witnesses testify in effect that the car had stopped at a street whore she was standing, at a place where cars usually stop; that the plaintiff was there waiting to become a passenger on that car; and that when she took hold of the hand rail the conductor suddenly started the car, and she was thrown to the ground and injured.
    2. If a proposed passenger takes a stand at a point where a street car usually stops for passengers, and the car stops there, it is the duty of the conductor to give the passenger a reasonable time to get on the car safely.
    3. Where three witnesses testify that a street car stopped and six witnesses testify that it did not stop, and the trial judge calls the attention of the jury to the testimony of all of these witnesses, it is not necessary for the trial judge to go further and enumerate the exact number of witnesses arrayed on the two sides against each other.

      Practice, C. P.- — Trial—Improper remarks of counsel.

    4. The appellate court will not reverse a judgment on a verdict for plaintiff in an accident case because the trial court refused to withdraw a juror and continue the case after counsel for the plaintiff had said to the jury: “ How much would you take to be in the same condition as the plaintiff?”
    Argued April 12, 1909.
    Appeal, No. 60, April T., 1909, by defendant, from judgment of C. P. Erie Co., Nov. T., 1907, No. 128, on verdict for plaintiff in case of Susan Donnelly v. Buffalo & Lake Erie Traction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Walling, P. J.
    At the trial the court refused binding instructions for defendant.
    Before verdict and before the jury retired defendant’s counsel excepted to the charge of the court generally, also for the reason that the court did not comment upon the greater number and disinterestedness of the witnesses for the defendant over those of the plaintiff, on the subject of alleged stopping of the car and the circumstances attending the alleged injury. [4]
    In his argument to the jury plaintiff’s counsel, in discussing the question of damages, stated to the jury as follows:

      “ Now, gentlemen, how much would you take and be in the same condition that Mrs. Donnelly is in? ” to which defendant’s counsel objected, and requested the court to withdraw a juror and continue the case and also asks for an exception; objection and request overruled and exception sealed for the defendant. [5]
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Errors assigned were (1, 4, 5) above rulings.

      J. M. Sherwin, with him S. A. Davenport, for appellants.
    No negligence was shown on part of defendant: Pitcher v. People’s St. Ry., 154 Pa. 560; Blair v. Transit Co., 36 Pa. Superior Ct. 319; Hatch v. Ry. Co., 212 Pa. 29; Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. 70; Gardner v. New Haven, etc., Co., 18 Am. & Eng. R. R. Cases, 170.
    Defendant submits, that the plaintiff was clearly guilty of contributory negligence: Blair v. Rapid Transit Co., 36 Pa. Superior Ct. 319; Reddington v. Traction Co., 132 Pa. 154; Bendon v. Traction Co., 26 Pa. Superior Ct. 539.
    Defendant submits that this failure on the part of the trial judge to call the attention of the jury to the numerical strength of defendant’s witnesses, six to three, was error: Hodder v. Transit Co., 217 Pa. 110; Lingle v. Ry. Co., 214 Pa. 500.
    Counsel for plaintiff is an officer of the court and defendant submits that he should no more be permitted than the court, to give to the jury an improper standard for estimating damages: Saxton v. Ry. Co., 219 Pa. 492; Wagner v. Hazle Twp., 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226; Freeman v. Traction Co., 36 Pa. Superior Ct. 166.

      John B. Brooks, with him Paul A. Benson, for appellee.
    Where the car stops to receive a passenger it is the duty of the company to allow a passenger a reasonable time in which to get on the car in safety and in the event of injury resulting to such passenger by premature starting of the car, the question of negligence is properly for the jury: Shuart v. Traction Co., 15 Pa. Superior Ct. 26; McCurdy v. Traction Co., 15 Pa. Superior Ct. 29; Rea v. Ry. Co., 221 Pa. 129.

      The remark of counsel was not improper: McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. 493; Com. v. Sarves, 17 Pa. Superior Ct. 407; Phœnix Brewing Co. v. Weiss, 23 Pa. Superior Ct. 519; Schaffer v. Coleman, 35 Pa. Superior Ct. 386.
    July 14, 1909:
   Opinion by

Morrison, J.,

The first and second assignments of error were argued together by appellant’s counsel. To sustain either of them we must hold that there was not sufficient evidence to carry the case to the jury on the question of the negligence of the defendant, or that under all of the evidence, the plaintiff was, as a matter of law, guilty of contributory negligence. We cannot agree with the contention of the appellant’s counsel on either of those questions.

If the plaintiff and her two witnesses were believed by the jury, the car had stopped at Wayne street, where she was standing at a place where the cars usually stopped; that the plaintiff was there waiting to become a passenger on that car; and that when she took hold of the hand-rail, the conductor suddenly started the car and she was thrown to the ground and injured. The testimony of the plaintiff and her two witnesses brings the case squarely within the rule found in Rea v. Media, etc., Electric Ry. Co., 221 Pa. 129. There the Supreme Court said: “The plaintiff testified that the car had stopped and she had put her left foot on the step and was reaching with her right hand for the hand-rail, when the conductor suddenly started the car and she was thrown to the ground. This made a prima facie case for the jury.” It does not appear in that case that the conductor saw the plaintiff at all or that she gave any’signal or indication that she intended to board the car. It was contended in that case that the plaintiff was guilty of contributory negligence. The court said on that point: “It was certainly evidence of it, but did not establish the fact so clearly that the court could take the question from the jury.” As we understand the present case we cannot sustain the first and second assignments, or either of them, without practically overruling the above cited case.

The learned counsel for appellant asks us to place a certain construction on the plaintiff’s testimony as to how she was trying to get on the car and then to say, as a matter of law, that she was injured by her own awkwardness in taking hold of the hand-rail at her left with her right hand. We do not think the plaintiff’s evidence clearly warrants the inference drawn from it by the learned counsel. The probability is that the proper inference to be drawn from the testimony is that she took hold of the hand-rail near the rear of the car at her right and was in the act of getting on the car when it started. Surely the fact that the counsel and the court cannot agree as to the meaning of her testimony on this point justified the submission of the question of her contributory negligence to the jury.

It may be difficult to distinguish the present case, on its facts, from Pitcher v. People’s St. Ry. Co., 154 Pa. 560. All we care to say about that and kindred cases, cited by appellant’s counsel, is that they were close cases and in the Pitcher case two of the judges of the Supreme Court dissented on the ground that the case was for the jury, and later cases, especially Rea v. Media, etc., Electric Ry. Co. seem to us to require a court to submit such a case as the present one to a jury.

The learned counsel cites and relies on Blair v. Phila. Rapid Transit Co., 36 Pa. Superior Ct. 319, but that case is readily distinguished from the present one. There it was not shown that the car had come to a stop and it was not at a regular stopping place. The plaintiff testified: “I never wanted a car to stop for me altogether. I thought I could get on a car better when it was running — it just gently swings you on.” That case rightly understood does not support the appellant’s contention. The first and second assignments are not sustained.

In support of the third assignment it is argued that the defendant could not be guilty of negligence, even if the car stopped at Wayne street, until the plaintiff did or said something to indicate to the conductor that she desired to become a passenger. We think the learned court below took the correct view of the law, under the evidence on that point. If the plaintiff was standing at a point where the car usually stopped for passengers, and it did stop there, it was the duty of the conductor to give her reasonable time to get on the car safely: Redington v. Harrisburg Traction Co., 210 Pa. 648; Shuart v. Traction Co., 15 Pa. Superior Ct. 26; McCurdy v. Traction Co., 15 Pa. Superior Ct. 29. The third assignment is not sustained.

We discover no merit in the fourth assignment. The learned court carefully called the attention of the jury to the testimony of all of the witnesses on the question of whether or not the car stopped at Wayne street. It is true that the court did not, in words, say that three persons testified that the car stopped and six that it did not stop. But reading the charge of the court on this question leads us to the conclusion that it would have been a very stupid juror who did not discover, from the charge, that the witnesses were two to one against the plaintiff’s contention as to the stopping of the car. The appellant’s counsel, on this point, cites and relies on Hodder v. Phila. Transit Co., 217 Pa. 110, but there the plaintiff alone testified that the car stopped and she was pointedly contradicted by six witnesses and the court below failed to call the attention of the jury to this striking circumstance. For that failure the Supreme Court sustained an assignment of error. But in the present case the learned judge in his charge did practically all that was required by the Hodder case. The fourth assignment is not sustained.

As to the fifth and sixth assignments, we remark that the counsel was out of order in his remarks to the jury and he merited a rebuke. But we cannot say that “these remarks were so prejudicial to the defendant as to require us to take notice of them as reversible error:” McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. 493-504; see also Phœnix Brewing Co. v. Weiss, 23 Pa. Superior Ct. 519; Shaffer v. Coleman, 35 Pa. Superior Ct. 386.

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


text:
    Commonwealth v. Donnelly, Appellant.

      Criminal law — Conspiracy—Corporations—Illegal dividends — Statute of limitations.

    1. The officers of a corporation may be convicted of conspiracy to declare illegal dividends, where it appears that during the period of the payment of such dividends, the expenses of the corporation were more than double the dividends paid, and that the total receipts from sales were less than the dividends, and that the latter were paid out of the sales of the stock of the company. Where the commonwealth alleges a continuing conspiracy, evidence of acts which might otherwise be barred by the statute of limitations is admissible as tending to show the scheme and plan of the alleged conspirators.
    2. A conspiracy formed by certain persons may be considered as adopted by others who come into the transaction at a later stage of the performance.
    3. On the trial of a conspiracy of the officers of two corporations to create a lease of the lands of one of the corporations to the other corporation at an exorbitant and excessive rate to the injury of the stockholders of the second corporation, a deed of the lands to the lessor company is admissible in evidence to show the value of the property. In such a case the consideration named in the deed is prima facie evidence of value, and in the absence of testimony showing the contrary, it may be presumed to represent the value of the property.

      Practice, C. P. — Trial—Evidence—Failure to follow up offer — Motion to strike out.

    4. Where in a criminal trial evidence is admitted upon condition that the commonwealth follows it up with certain other evidence, and the commonwealth fails to make good its offer, it is the duty of the defendant to move the court to strike out the evidence admitted, and withdraw it from the consideration of the jury. Where such a motion is not made, the objection to the testimony will be considered as waived.

      Criminal law — Conspiracy—Declarations—Coconspirators.
    5. To make the declarations of an alleged conspirator admissible in evidence against his coconspirators, there must be preliminary proof of the joint purpose a,nd'action, not necessarily conclusive, but sufficient to submit to the jury on that fact; and the declarations so admissible must have been made during the pendency of the conspiracy.

      Criminal law — Conspiracy—Improper remarks of district attorney— Comment on failure of defendants to testify — Pleading.
    6. Where on the trial of several defendants for conspiracy, the district attorney says to the jury that only two óf the defendants had taken the witness stand, and one of the defendants who was acquitted objects to the remark, and requests that a juror be withdrawn, and this request is refused and none of the other defendants make any such objection or request, the two defendants who went upon the stand and were convicted cannot, upon appeal, complain of the words of the district attorney, or of the action of the court in refusing to withdraw a juror and continue the case.
    7. A prisoner convicted of conspiracy cannot after his conviction ask the court to strike off a plea of not guilty, on the ground that he had never entered such a plea, where the record shows that the prisoner with his counsel was present when, by direction of the court and without objection by anyone, the plea of not guilty was entered for all of the defendants present, and that the prisoner and his counsel remained in court and participated in the trial without raising any question as to the plea.
    Argued April 19, 1909.
    Appeal, No. 249, Oct. T., 1908, by ■defendants, from judgment of Q. S. Phila. Co., Feb. T., 1908, No. 288, on verdict of guilty in case of Commonwealth v. William A. Donnelly et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Indictment for conspiracy. Before Wiltbank, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.
    On a rule for a new trial Wiltbank, J., filed the following opinion:
    This was an indictment for conspiracy. Ten defendants appeared for trial. Of these the bill was submitted as to four, to wit: William S. Darnell, Mahlon Van Booskirk, Howard W. Bush, Edmund S. Fritz; the jury found a verdict of not guilty as to C. A. Conrad and H. U. Hollenbach, and after presentation of the proofs and charge of the court the jury found guilty Paul Morris, William J. Darnell, M. W. Watkinson and H. H. Missimer. Rules for a new trial were granted on the motion of Morris, Darnell, Watkinson and Missimer.
    Three points were made at the argument of the rule for a new trial which merit consideration.

      The first point which I shall take up is also involved in a rule taken by certain of the defendants to show cause why the verdict should not be set aside and the plea of guilty entered of record should not be struck off. This point is founded upon the contention that, although a plea of guilty has been entered by the court on the several bills of indictment and on the part of all of the defendants now before the court, yet in point of fact the plea was not made by all of them before the trial. This point, however, is not well taken. When the case was called, as there was a large number of counsel engaged, the several defendants were summoned by the crier, and notation made of their professional representatives. Thus with respect to each of them an appearance was duly entered. The district attorney then announced that, unless it was desired that each defendant should be arraigned, it would be considered that they pleaded not guilty. This suggestion was acceded to, and the plea of not guilty was accordingly entered by the court through the clerk and the trial proceeded. The trial judge reports this to be an account of what then happened. After thus proceeding to trial without objection, it is not competent for the defendants to avail themselves of a silence which they allege they maintained, in order that upon the failure of their defense to acquit them they might complain of a situation which they had produced.
    The second point rested upon the ruling of the trial judge at the opening of the address of the district attorney.
    The minutes of the trial show that at a stage of the summing up of the district attorney that officer said: “ Only two of the defendants had taken the witness stand; that those who did merely repeated, in effect, their plea of not guilty, and that this was all of the defendants' case.”
    Whereupon C. A. Conrad by C. J. Hepburn, Esq., his attorney, moved the court that a juror be withdrawn.
    This motion was made in behalf of the defendant Conrad, and was overruled by the court. An exception was asked for and refused. The defendant Conrad was acquitted.
    It was not competent to withdraw a juror at the trial. Many defendants were involved, and each had his interest in desiring a verdict of acquittal, by which he should be exonerated from the grave charge of conspiracy to defraud. As it resulted the defendant Conrad, in whose behalf the objection was made, was as has been stated himself acquitted, together with one other defendant; and accordingly, it is not to be considered that the objector was prejudiced before the jury by the expression of the district attorney.
    No other plaintiff having excepted to the words referred to, it is not their privilege to secure a new trial on this ground: Com. v. Clark, 10 Pa. Dist. Rep. 641; Com. v. Dorman, 22 Pa. Superior Ct. 20.
    An examination of the statement of the district attorney makes it clear that there was no reference to defendants other than the two who took the stand. As to these the language was that they had merely repeated, in effect, their plea of not guilty, and this was all of the defendants' case.
    The third point presented on the argument for a new trial had relation to the instruction of the court, as follows:
    You will find that new men from time to time have come into a relation with the United States Graphite Company, and that some of these are defendants here. Within the scope of this case it may be said that a conspiracy may, as it were, be made up of continuing acts. The original combination may advance to a combination for further action, thus giving life to a combination adapted to change in circumstances, or adapted to a new stage of the conspiracy reached in the development of the plan. In such a case a new impluse is given to the men engaged, and the continued action or new action necessitated by lapse of time in working out the original scheme, must be regarded as a consequence involved in the plan at the beginning, and therefore as anticipated by the actors, upon the principle that when they conspired they not only contemplated present action but prepared for new decisions for action in the future. Should a conspiracy of this continuing character be found by you as a fact in the case, you might, if the proofs justified it under this charge, find any defendant a party to it, even although he entered into a relation with the original offenders at some later stage of the case, when renewed action was unlawfully agreed upon by all of them. In other words, a man may adopt and enter into a continuing conspiracy after its life has begun, and thus became a party to it and its consequences and liable to prosecution. Some of these defendants, it may be, appear to stand close to the transactions which were unlawful and which they deliberately inaugurated or advanced. This may not be your view of the situation, and you must follow your view. You will studiously examine what has been presented to you, with care in sifting the evidence, and with the intention to convict if the proofs require it, no matter what might follow, but with an equally urgent intention to acquit if that course is required of you under your oaths.
    We do not discover error in this instruction. It is consistent with, and according to, the authorities as we find them.
    It is to be noted at the outset, however, that the defendants found guilty were shown by the proofs to have been of the party creating the conspiracy in its origin. Paul Morris, William J. Donnelly, M. W. Watkinson and H. H. Missimer were active from the commencement of the scheme and in the formation of the combination at that time, which the jury has found to have been criminal.
    In Com. v. Wishart and others, in this court, reported in 8 Legal Gazette, 137, there was an indictment for conspiracy, and among other defenses the statute of limitations was set up, In consideration of this point the trial judge — the present chief justice of Pennsylvania — instructed the jury in a manner regarded as a guide to us in our disposition of the case at bar. He said: “Now, as to the law relating to the statute of limitations, counsel claim that the substantive offense charged in this indictment is the agreement to do an unlawful act, and at the moment such agreement was made,'the running of the act began, and that if the prosecution was not instituted for more than two years after such an agreement was formed, the defendants could not be convicted, no matter how guilty they might be. But I instruct you that the agreement is not the end of the offense, and that the statute does not begin to run until the end of the conspiracy. If an act in the conspiracy is shown, the presumption is that all subsequent acts based on it and in pursuance of the same plan, were done with the consent and participation of the original conspirators. No doubt a man may repent and retire from a conspiracy, but when it goes on from step to step, and there is no break and no new start, a connection shown at any point may be presumed to continue through the subsequent steps of the conspiracy.”
    The rule for a new trial is discharged.

      Errors assigned were various rulings and instructions set forth in the opinion of the Superior Court.

      Horace L. Henderson, with him William T. Aldrich, Jr., and Michael J. Ryan, for appellant.
    Evidence of the value of land must relate and be confined to the time of the transaction in controversy: Zerbe v. Miller, 16 Pa. 488.
    The general and established rule is that recitals of consideration in a deed are no evidence whatever as against strangers, and even as to parties are of insignificant value, always being open to explanation and attack: Dean v. Connelly, 6 Pa. 239; Garwood v. Dennis, 4 Binney, 314; Lloyd v. Lynch, 28 Pa. 419; Depew v. Clark, 1 Phila. 432; Goodspeed v. Fuller, 46 Me. 141; Rose v. Taunton, 119 Mass. 99; Lake Roland El. Ry. Co. v. Frick, 86 Md. 259 (37 Atl. Repr. 650).
    There was nothing in the evidence submitted by the commonwealth that met the condition undertaken by the district at-' torney to connect the evidence of the purchase by McLearn from McIntyre with the conspiracy charged in the indictment, and under the circumstances, it is submitted that it was the duty of the court, before submitting the case to the jury, and upon its own motion, to have stricken from the record all the evidence relating to that subject, and the failure to do so was reversible error: People v. Stephenson, 91 Hun, 613; Albert v. Miller, 7 W. N. C. 477; Jenkins v. State, 35 Fla. 737 (18 So. Repr. 182); Berford v. Sanner, 40 Pa. 9.
    The refusal of the defendants' motion in arrest of judgment for remark of the district attorney to the jury, as set forth in the fourteenth assignment of error, is submitted as such error on the part of the court as to require a reversal and new trial: Com. v. Foley, 24 Pa. Superior Ct. 414; Com. v. Bell, 7 Pa. Dist. Rep. 54; Com. v. Holtham, 5 Pa. Dist. Rep. 24; Com. v. Bruner, 1 Pa. Dist. Rep. 641; Wilson v. United States, 149 U. S. 60 (13 Sup. Ct. Repr. 765); Com. v. Scott, 123 Mass. 239.

      William A. Grey, assistant district attorney, with him John H. Maurer, assistant district attorney, and Samuel P. Rotan, district attorney, for appellee.
    The conspiracy was a continuing one, and evidence of acts, which might otherwise be barred by the statute of limitations, was admissible: Com. v. Bell, 166 Pa. 405; Com. v. Wishart, 8 Legal Gazette, 137.
    The declarations and acts of any of the conspirators may be offered in evidence as against all: Com. v. Crossmire, 156 Pa. 304.
    When a motion to strike out is not made, the objection to the testimony is considered as waived: United States v. Gardner, 42 Fed. Repr. 832; McCarney v. People, 83 N. Y. 408; Com. v. Zappe, 153 Pa. 498.
    The defendant should not be permitted to contradict the record in the case, especially in view of the fact that the testimony taken in support of his rule to amend shows that the proceedings had with reference to the entry of the plea were regular: United States v. Molloy, 31 Fed. Repr. 19; Tarver v. State, 95 Ga. 222 (21 S. E. Repr. 381); Feriter v. State, 33 Ind. 283; Stewart v. State, 111 Ind. 554 (13 N. E. Repr. 59).
    July 14, 1909:
   Opinion by

Morrison, J.,

This is an appeal of William A. Donnelly from a conviction and sentence on a charge of a conspiracy to cheat and defraud. The indictment charged two of the defendants, Darnell and Van Booskirk, as officers of two corporations, the Pennsylvania Graphite Company and the United States Graphite Company, and the remaining ten defendants (two of whom, Hess and Welsh, were not at the trial), as officers of the United States Graphite Company, of conspiring together to cheat and defraud the United States Graphite Company and its stockholders, by means of fraudulently procuring the incorporation, under the laws of the state of New Jersey, of the United States Graphite Company, and by means of procuring the leasing by the latter company of certain land in Chester county, Pennsylvania, owned by the Pennsylvania Graphite Company, and the leasing of other land in the same county owned by H. H. Missimer, Paul Morris, Wm. A. Donnelly, H. W. Bush, Wm. S. Darnell, defendants, and one George C. Hollenbach, upon terms and for considerations that were excessive and exorbitant; and also by means of the falsification of the books of account of the United States Graphite Company, of making and publishing false statements and accounts of earnings, profits and financial condition of the latter company, and of causing unlawful dividends to be declared and paid upon the capital stock of the same company.

Upon the trial of the case, Darnell and Van Booskirk, the two defendants indicted as officers of both companies, and Bush, an officer of the United States Graphite Company, were discharged by reason of the court directing a verdict of not guilty as to them at the close of the commonwealth’s case, and the same action was taken as to defendant Fritz at the close of defendant’s case; the jury rendered a verdict of not guilty as to two defendants, Conrad and H. W. Hollenbach, and a verdict of guilty as to the remaining defendants, Morris, Donnelly, Missimer and Watkinson.

It is difficult for us to see how any disinterested person can carefully read the record and escape the conclusion that the appellant was guilty of a conspiracy to cheat and defraud. Therefore, his conviction ought to stand, unless reversible error appears in the record. In our opinion, the charge of the court below and his opinion refusing the appellant a new trial, indicate that the case was carefully tried and that the learned judge sought to guard the interests of the defendant so that he might not be illegally convicted.

Upon the question of declaring illegal dividends, the testimony shows that from October, 1904, until the failure of the United States Graphite Company, in August, 1906, the total dividends declared and paid amounted to $67,706.25; the total expenses during that time to $146,540.09, and the total sales to only $61,186.08, which was $85,354.01, less than the expenses to that date. During all this time the stock which was held by the trustee was being sold at various prices and the money received therefrom used for the payment of dividends. If the evidence in regard to the payment of dividends, which was practically uncontradicted, was not sufficient to convict the defendants of palpable fraud and conspiracy, then it would be difficult to imagine what would be necessary to make out a case of conspiracy.

The first seven assignments of error relate to the overruling of objections to the admission of testimony, and in determining whether the learned court erred in this regard, it is well to recollect that the indictment charges a conspiracy to cheat and defraud. From the evidence we learn that the United States Graphite Company was organized on February 16, 1904. At that time the defendants took over 590,000- shares of stock of said company, out of a total number of 600,000 shares for certain leases which they transferred together with a lease to be acquired from the Pennsylvania Graphite Company. At that time the Pennsylvania Graphite Company did not own the land which was to be the subject of the lease and did not take title to the same until April 25, 1904. There was evidence to that effect, and it was contended that the defendants never took any steps to secure the lease which was to be acquired from the Pennsylvania Graphite Company and which was a part of the consideration of the transfer to them of the 590,000 shares of stock. Of this stock which the defendants received, they turned back to a trustee, for the purpose of sale, all but 125,340 shares, which they retained for their own purposes. It was not until June 20, 1904, that the United States Graphite Company secured the lease from the Pennsylvania Graphite Company, and this was as a result of negotiations conducted between the two companies.

The first three assignments of error relate to the admission of the deed from John P. McLearn to the Pennsylvania Graphite Company in evidence and the consideration for the transfer of the property. The fourth, fifth and sixth assignments of error relate to the admission of the deed from one S. Maxwell McIntyre to John P. McLearn, and the consideration therefor. The seventh assignment relates to the admission of the before-mentioned deeds, the lease between the Pennsylvania Graphite Company and the United States Graphite Company, and the charter and the amended charter of the Pennsylvania Graphite Company. On the part of the defendants, a general objection was made to the admission of these papers and the evidence with reference thereto, on the ground that they were immaterial and irrelevant and related to matters that occurred so long ago as to be barred by the statute of limitations.

The indictment was found on February 13, 1908. The commonwealth alleged the first act in the conspiracy was the securing of title to the property by John P. McLearn on March 25, 1903, which was followed by the formation of the Pennsylvania Graphite Company on April 6, 1903, and thereafter by the formation of the United States Graphite Company on February 16, 1904; the lease of the property to the latter company on June 20, 1904, and the subsequent declarations of unlawful dividends and other acts, as the commonwealth contended was shown by the testimony, which continued until the fall of 1906. Here it is well to note that the appellant was a stockholder, treasurer and an active man in the United States Graphite Company.

In our opinion, the evidence and the papers admitted and complained of in said seven assignments of error were material and relevant for the purpose of showing the foundation and history of the entire transaction, and even if some of the things complained of occurred more than two years before the finding of the bill, they were not therefore necessarily incompetent. The commonwealth alleged a continuing conspiracy, and evidence of acts which might otherwise be barred by the statute of limitations was admissible as tending to show the scheme and plan of the alleged conspirators. We think the principle is ruled by Com. v. Bell, 166 Pa. 405, and cases therein cited. But we have no doubt upon this question when we consider Com. v. Wishart, 8 Legal Gazette, 137, which was tried in Philadelphia by Chief Justice Mitchell when he was on the common pleas bench. That was a conspiracy cáse and the statute of limitations was set up and that learned judge said to the jury: “Now, as to the law relating to the statute of limitations, counsel claim that the substantive offense charged in this indictment is the agreement to do an unlawful act and at the moment such agreement was made,, the running of the act began, and if the prosecution was not instituted for more than two years after such an agreement was formed, the defendants could not be convicted no matter how guilty they might be. But I instruct you that the agreement is not the end of the offense, and that the statute does not begin to run until the end of the conspiracy. If an act in the conspiracy is shown, the presumption is that all subsequent acts based on it and in pursuance of the same plan, were done with the consent and participation of the original conspirators. No doubt a man may repent and retire from a conspiracy. But when it goes on from step to step, and there is no break and no new start, a connection shown at any point may be presumed to continue through the subsequent steps of the conspiracy.”

The jury evidently found that the appellant was actively connected with the conspiracy within two years of the finding of the bill of indictment, and we think there' was sufficient evidence from which this could be found.

The title of the United States Graphite Company to the land in question was under a lease from the Pennsylvania Graphite Company, which was predicated upon the prior title of John P. McLearn. The consideration paid to McLearn by the Pennsylvania Graphite Company for the property was material and so was the consideration paid by McLearn to McIntyre. The appellant being a stockholder and an officer of the United States Graphite Company, can hardly be said to be a stranger to the title under which his company claimed. Undoubtedly the general rule is that a recital in a deed is not evidence except as against the party claiming under it. But the lease of the United States Graphite Company and the title of their lessors, the Pennsylvania Graphite Company, rested upon and arose out of the prior title to John P. McLearn.

The consideration named in a deed is prima facie evidence of the fair value of the property conveyed thereby, and in the absence of testimony showing the contrary it may be presumed to represent the value of the property: Britton v. Stanley, 4 Wharton, 113. In the present case, under all of the evidence the value of the property was a question for the consideration of the jury. If the prima facie showing of the commonwealth on this question was not correct, it could easily have been rebutted by the defendants. The first seven assignments are overruled.

The eighth assignment is that the court erred in not striking from the record all the evidence relating to. the purchase of land by John P. McLearn from McIntyre, following and conditioned upon the promise of the district attorney to follow it up with other evidence as set forth in the record. But there was no motion made to strike out the evidence complained of in this assignment, and it has been frequently held that in such case it was the duty of the appellant to request the court to strike it out and withdraw it from the consideration of the jury: McCarney v. People, 83 N. Y. 408. Where a motion to strike out is not made, the objection to the testimony is considered as waived: U. S. v. Gardner, 42 Fed. Repr. 832.

In Com. v. Craig, 19 Pa. Superior Ct. 81, President Judge Rice, speaking for the court (p. 96), said: “The failure of the commonwealth to make good its offer would more probably operate with the jury in the defendant’s favor. Moreover, no motion was made to strike it out, nor was the court asked to instruct the jury to disregard it, as might have been-done on the ground that it did not come up to the offer.” The eighth assignment is overruled.

The- ninth and tenth assignments complain that the court refused to discharge the appellant at the close of the commonwealth’s case and also refused a binding instruction in his favor in the charge to the jury. It is sufficient to say in regard to these assignments that the question of the appellant’s guilt was for the jury, and we think it was carefully and fairly submitted to that body by the learned judge below. The ninth and tenth assignments are not sustained.

The eleventh, twelfth and thirteenth assignments complain of the admission in evidence of a letter of Paul Morris & Company and of certain identified letters called market letters; of an article published in the “North American,” a newspaper of Philadelphia. In view of the appellant’s active connection with the alleged conspiracy and his official position in the United States Graphite Company and the evidence in the case relating to the subjects of these assignments, we think the court below did not err in admitting the evidence, and, therefore, we overrule the eleventh, twelfth and thirteenth assignments. There was evidence of conspiracy and confederation of the defendants who were found guilty by the jury. “To make the declarations of an alleged conspirator admissible in evidence against his co-conspirators, there must be preliminary proof of the joint purpose and action, not necessarily conclusive, but sufficient to submit to the jury on that fact; and the declarations so admissible must have been made during the pendency of the conspiracy:” Marshall v. Faddis, 199 Pa. 397; 1 Greenleaf on Ev., secs. 110, 111.

The fourteenth assignment complains that the district attorney said to the jury that only two of the defendants had taken the witness stand, to the prejudice of the defendants and against the statutes of the commonwealth of Pennsylvania made and in such cases provided. There is no merit in this assignment for two reasons. First: The appellant took the stand and testified in his own behalf and the district attorney had a right 'to comment on his testimony and it does not appear that he drew'any inferences or made any improper remarks as to the other defendants who did not testify. He certainly had a right to call attention to the fact that two defendants had testified and to comment on their testimony. Second: Neither the defendant nor his counsel excepted to the alleged improper remark of the district attorney and the only way it was brought on the record was by an objection by Mr. Gillespie, counsel for C. A. Conrad (who was acquitted), and the court-was requested to have the language of the district attorney taken down and that a juror be withdrawn. But the court refused the motion and declined to grant Mr. Gillespie an exception, and, therefore, the language of the district attorney does not properly appear in the record and we cannot review it. It does not appear that counsel for any other defendant asked to have this language brought upon the record nor did any other defendant secure an exception. The defendant had not exhausted his remedy in the lower court, and if he were in a position to complain of the court for not granting him an exception, the way was open to him by securing and serving a special writ, setting forth the circumstances of the case, and commanding the judges, if they be true, to affix their seal: Drexel v. Mann, 6 W. & S. 386; Conrow v. Schloss, 55 Pa. 28. If the appellant made no objection to the language of the district attorney at the trial, took no exception and had no bill sealed, he is in no position to have the matter now reviewed: Com. v. Weber, 167 Pa. 153; Com. v. Dorman, 22 Pa. Superior Ct. 20. The fourteenth assignment is overruled.

The fifteenth assignment complains of the refusal of the court to amend the record by striking therefrom the appellant’s plea of not guilty. There is no merit in this assignment. The record shows that the appellant, with his counsel, was present when, by direction of the court and without objection by anyone, the plea of not guilty was entered for all of the defendants present, and that the appellant and his counsel remained in court and participated in the trial, without raising any question as to the plea. The appellant took his chance of getting a verdict of not guilty, and then when disappointed in this respect, he urges that he never pleaded. This is an attempt to juggle with the records of a judicial trial in a manner that cannot be approved. The fifteenth assignment of error is overruled.

Judgment affirmed, and the record is remitted to the court below to the end that the appellant may be committed to serve the unexpired portion of his sentence, at the time this appeal was made a supersedeas.