author: Morrison, J., Heab, J.,

text:
    Hause, Appellant, v. Lehigh Valley Transit Company.

      Negligence — Street railways — Automobile—Contributory negligence— nonsuit.

    1. In an action against a street railway company to recover damages for injuries to an automobile, it appeared that the plaintiff in driving along a turnpike road in a country district, stopped his automobile to pay toll. The machine was stopped so close to the defendant railway company's track on the road, that a car could not pass without striking it. There was a clear space of highway about eight feet wide between the automobile and the toll gate. The machine was about seven feet wide. Plaintiff and his chauffeur both saw defendant's car stop about sixty feet in the rear of the automobile to take off and let on passengers. The electric car ran into the automobile without previously sounding a bell or blowing a whistle. The accident happened ■ in the daytime. Held, that a nonsuit was properly entered.
    2. A peremptory nonsuit is in the nature of a judgment for defendant on demurrer to evidence and hence, in testing the validity of such non-suit, the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them.
    Argued Dec. 10, 1908.
    Appeal, No. 129, Oct. T., 1908, by plaintiff, from order of C. P. Lehigh Co., Jan. T., 1908, No. 51, refusing to take off nonsuit in case of Charles G. Hause v. The Lehigh Valley Transit Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages to an automobile. Before Heydt, P. J., specially presiding.
    In addition to the facts stated in the opinion of the Superior Court it appeared that the accident happened between three and four o'clock on August 24, 1907.

      Error assigned was refusal to take off nonsuit.

      George M. Lutz, for appellant.
    It is the duty of street railway companies to see that their motormen shall be on the alert, not only at street crossings, but everywhere upon its tracks to see that citizens are not run down and injured: Ehrisman v. East Harrisburg City Passenger Railway Co., 150 Pa. 180; Schnur v. Citizens’ Traction Co., 153 Pa. 29; Gilmore v. Federal Street, etc., Pass. Ry. Co., 153 Pa. 31; Conner v. Pittsburg Railways Co., 216 Pa. 609; Evers v. Philadelphia Traction Co., 176 Pa. 376; Thompson v. United Traction Co., 193 Pa. 555; Distasio v. United Traction Co., 35 Pa. Superior Ct. 406; Barto v. Traction Co., 216 Pa. 328; Mortimer v. Traction Co., 216 Pa. 326.
    February 26, 1909:
    A court is warranted in saying there was contributory negligence only in clear cases where the facts and the inferences to be drawn from them are free from doubt: Iseminger v. York Haven Water & Power Co., 206 Pa. 591; McFarland v. Traction Co., 204 Pa. 423; Fenner v. Wilkes-Barre, etc., Traction Co., 202 Pa. 365; Ehrisman v. Ry. Co., 150 Pa. 180; Schnur v. Traction Co., 153 Pa. 29; Penna. R. R. Co. v. Ogier, 35 Pa. 60.
    We think the case should have been submitted to the jury under the ruling in the case of Doyle v. Traction Co., 214 Pa. 382.

      Arthur G. Dewalt, for appellee.
    Where a motorman testifies that he used the precautions that are necessary in stopping his car, or where from the facts it appears that he must have done so, viz.: that he stopped his car within eight feet and that the force of the' collision was only sufficient to move the auto a few inches, negligence cannot be imputed to the company because of the collision, and this is so, even where people, seeing the approach of the car, give notice to the motorman: Wagner v. Traction Company, 212 Pa. 132; Watts v. Stroudsburg Pass. Ry. Co., 34 Pa. C. C. Rep. 373.
   Opinion by

Morrison, J.,

We approach the consideration of this case with the full understanding that “In our practice, a peremptory nonsuit is in the nature of a judgment for defendant on demurrer to evidence and hence, in testing the validity of such nonsuit, the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them:” Hill v. Trust Co., 108 Pa. 1. At the close of the plaintiff’s case the court below entered a compulsory nonsuit and subsequently refused to take it off. Whereupon, the plaintiff excepted and appealed to this court. The assignments of error raise the question of the refusal of the court to take off the compulsory nonsuit.

On August 24, 1907, the plaintiff, accompanied by his chauffeur and four ladies, was traveling in his automobile from Philadelphia to Allentown. At Rock Hall, on the Coopersburg turnpike, on which the defendant was maintaining its track for the operation of trolley cars, the plaintiff stopped his automobile to pay toll. He left the machine evidently supposing it to be far enough from the trolley track to be safe, but in fact it was a few inches too near the track so that a car could not pass without striking it. The plaintiff had been traveling for some distance on the highway with the defendant’s track on his right. When he approached the tollhouse, the roadbed between the track and the tollhouse was fifteen feet wide, and it was entirely clear and unobstructed and the plaintiff and his chauffeur had their choice of stopping the car on any part of the roadbed and, as the car was only about seven feet wide, there was a clear space of the highway about eight feet wide between the plaintiff’s automobile and the tollgate. The plaintiff and his chauffeur both saw defendant’s car stop about sixty feet in the rear of the automobile to take on or let off passengers. The inference is irresistible and free from doubt that they must have anticipated that the trolley car would come along the track in the direction of the automobile. In our opinion, no reasonable inference can be drawn from the conduct of the plaintiff, except that he supposed he left his automobile far enough from the track to permit the trolley car to safely pass. It would be unreasonable to suppose that the plaintiff would leave his car standing too close to the track for safety, while it was occupied by his family, and we must conclude that he and his chauffeur made a mistake and were, therefore, guilty of negligence. In this record there is not the slightest reason disclosed justifying the.plaintiff in leaving his car standing a few inches too near the track for safety. Therefore, the proposition contended for by the learned counsel for the plaintiff that both the plaintiff and the traction company had the right to use the highway, is not involved in this case. It is true that when necessity or convenience is involved, a person using an automobile or a carriage upon a highway, may drive upon the track of the traction company. It was said in Mortimer v. Beaver Valley Traction Co., 216 Pa. 326, by Mr. Justice Fell: “Passenger railway companies have a superior, but not an exclusive, right to the use of the parts of the borough or city streets occupied by their tracks. It was the right of the plaintiff, subordinate to the superior right of the company to an unobstructed track for the passage of its cars, to drive on the track although he could have driven on the street on either side of it.” To the same effect is Barto v. Beaver Valley Traction Co., 216 Pa. 328.

We have already said that the doctrine of these cases, contended for by plaintiff, does not apply, because in the present case the plaintiff was not using the defendant’s track and it is perfectly clear that he intended to keep in the highway a safe distance from the track. The learned judge below in his opinion refusing to take off the nonsuit, said: “Neither the plaintiff nor his chauffeur looked for a car when they stopped. When they saw the car stopping sixty feet behind them they paid no attention to it and made no effort to get out of its way. There was nothing to prevent the plaintiff from leaving his automobile where it would clear the track in the first place, or from moving it when he saw the car. It is negligence per se to leave an automobile standing on the track of a street railway company, or so close to it that it will be struck by a passing car when there is no reason or excuse for it.

“ If the plaintiff thought the automobile would clear the car, and it was a case of mistaken judgment, and the motorman also thought the car would clear the automobile (and the court is of the opinion that this is what actually occurred) then the accident is the result of the concurrent negligence of the plaintiff and the defendant and the plaintiff cannot recover.”

We agree with both positions taken by the learned court below. To us the inference seems clear, and free from doubt, that the plaintiff must have supposed his automobile was at a safe distance from the track. But in this he was mistaken and now he blames the defendant because its motorman made the same mistake by assuming that the plaintiff had left his car at a safe distance from the track. It may be conceded that a very high degree of care on the part of the motorman would have avoided this accident. But that only convicts the defendant of negligence. But on the other hand very ordinary care would have led the plaintiff, before leaving his automobile, to have placed it on some portion of the eight feet of open highway between the automobile and the tollhouse. We consider this accident the result of the concurrent negligence of the plaintiff and his chauffeur and the motorman. But we consider that the plaintiff, by his negligent act, led the motorman into the mistake which he made.

The plaintiff contends, however, that the motorman should have given the parties in the automobile warning of his intention to start his car by sounding of bell or blowing of whistle. We cannot see much force in this argument. The plaintiff and his chauffeur saw the car stop to discharge or receive passengers and they must have expected that it would proceed on its way and they must have supposed that the automobile was clear of the track, and if the motorman had given warning, no jury ought to be permitted to infer that the plaintiff would have moved his automobile, because he evidently considered it in a safe place. But suppose the motorman was negligent in not sounding the bell or blowing a whistle, that will not excuse the plaintiff for his negligence to which we have already referred.

The plaintiff’s counsel xelies on Barto v. Beaver Valley Traction Co., 216 Pa. 328, and Mortimer v. Beaver Valley Traction Co., 216 Pa. 326, and also Sturgeon v. Beaver Valley Traction Co., 216 Pa. 322. In the Mortimer case, the plaintiff was riding at night in an open wagon on the track of the defendant’s road on a borough street. According to his testimony, he was looking for a car and was using care. Of course, that carried the case to the jury. In the Sturgeon case, the plaintiff was driving on the track of the defendant’s electric railway because the street on one side of the track was impassable, and on the other side was dangerous. He was looking for a car and made an effort to get off the track, but failed, and was injured. That case was for the jury because the plaintiff made out a case clear of contributory negligence. In the Barto case the plaintiffs were driving on the track with the top of the buggy down, and they looked back several times to see whether a car was coming. A car came at the rate of fifteen miles an hour without a headlight, and no signal of its approach was given. That case was for the jury. We do not consider those cases as sustaining the present plaintiff’s contention.

Where the facts and the inferences to be drawn from them are free from doubt, the court is warranted in saying that there was contributory negligence: Iseminger v. York Haven Water and Power Co., 206 Pa. 591. In the present case we think the facts and inferences which a jury could be permitted to draw from them, convicted the plaintiff of contributory negligence and, therefore, the court did not err in granting the nonsuit and refusing to take it off.

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

Heab, J.,

dissenting:

At the time of the accident the plaintiff was traveling along a public highway in a rural community. A portion of the road was occupied by the tracks of the defendant company, upon which it operated cars., with some interval of time between them as is customary in extra-urban traffic. The plaintiff had a right to travel upon any part of the highway, even upon that portion occupied by the defendant’s tracks. The right of the defendant upon its own tracks was superior but not exclusive. But that superiority could not be asserted without giving to anyone obstructing the track a reasonable opportunity to get out of the way of the car.

Wherever the plaintiff could lawfully travel upon the highway he could lawfully stop his automobile for a necessary or proper purpose and during a reasonable time. Whilst thus lawfully stopped his right to the portion of the highway occupied by his vehicle was exclusive. His momentary stop to pay toll was not only lawful but compulsory. He was returning to his car when the motorman of the defendant, in broad daylight, with the automobile standing in plain view, struck it with the street car. If while some distance from it he thought he could clear it, the use of his eyes when he came close to it would have warned him of his error. And his car, if under control, could have been stopped without doing any injury. But if it became material to draw from the conduct or declarations of either the plaintiff or motorman, any inference as to the state of mind, purpose or intent of either, such inference was one of fact to be drawn by a jury from pertinent evidence introduced at the trial.

I am unable to see how, under these circumstances, the learned trial court could declare, as matter of law, that the plaintiff was guilty of contributory negligence and could not recover. I would reverse the judgment and send the case to the jury-

President Judge Rice and Henderson, J., join in this dissent.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Durham, Appellant, v. Strauss.

      Negligence — Automobiles—Master and servant.

    In an action to recover damages for injuries to an automobile sustained in a collision with defendant’s automobile, a nonsuit is properly entered where the evidence shows that the defendant’s chauffeur, and another person, a stranger to the master, were in the machine at the time of the accident, that the stranger was operating the machine, that the chauffeur had taken the machine out contrary to the defendant’s general order not to take it out without defendant’s consent, and that the chauffeur’s excuse for taking out the machine to adjust the carburetor, is met by proof that it was not his duty to fix the carburetor, and that it was not necessary to take the machine out of the garage for that purpose.
    Argued Dec. 10, 1908.
    Appeal, No. 130, Oct. T., 1908, by plaintiff, from order of 0. P. Lehigh Co., Jan. T., 1908, No. 52, refusing to take off nonsuit in case of J. Edward Durham v. Martin H. Strauss.
    February 26, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages to an automobile. Before Trexler, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was order refusing to take off nonsuit.

      Arthur G. Dewalt, for appellant,
    cited: Davis v. Houghtelin, 50 N. W. Repr. 765; McClung v. Dearborne, 134 Pa. 396; Garretzen v. Duenckel, 50 Mo. 104; Quinn v. Ry. Co., 7 Pa. Superior Ct. 19; Corpies v. Sand Co., 31 Pa. Superior Ct. 107; Lotz v. Hanlon, 217 Pa. 339; Bennett v. Busch, 67 Atl. Repr. 188.

      Frank Jacobs, for appellee,
    cited: Lotz v. Hanlon, 217 Pa. 339; Sarver v. Mitchell, 35 Pa. Superior Ct. 69.
   Opinion by

Morrison, J.,

The learned court below granted a compulsory nonsuit and later refused to take it off, and the plaintiff excepted and appealed. The assignments of error challenge this action of the court. Our question is, therefore, did the plaintiff make a prima facie case for the jury under our rule of practice as stated in Hill v. Trust Co., 108 Pa. 1: “ In our practice, a peremptory non-suit is in the nature of a judgment for defendant on demurrer to evidence; and hence, in testing the validity of such nonsuit the plaintiff is entitled to the benefit of every inference of fact which might have been -drawn by the jury from the evidence before them. ”

The plaintiff proved that the defendant was the owner of the automobile which collided with plaintiff’s automobile' and seriously damaged it; that the defendant’s automobile was in the hands of Russel Merritt and Robert Ruch at the time of the accident, at a place four miles or more from the garage where defendant kept his machine; that Merritt was defendant’s chauffeur and had been such for four or more months; that Ruch was not in the employ of defendant for any purpose; that defendant had given general orders to Merritt not to take the automobile out of the garage without defendant’s order; that defendant did not order nor consent to his automobile being taken out on the day of the collision; that Merritt had not previously taken it out without orders from defendant; that Ruch was actually operating and running the automobile at the time of the collision; that the excuse given by Merritt for taking the machine out on that day was “to try it out ” and regulate the carburetor, but at the time of the accident they were not adjusting or fixing the carburetor and it was not shown that it was necessary to take the machine out of the garage to adjust or regulate that part of the machinery. It was also shown that it was no part of Merritt’s business to attempt to regulate or repair the carburetor. Upon this state of facts, the learned court below held: (1) “That the machine at the time the collision occurred had been taken out contrary to the general instructions of the master that the machine should not be taken out without his consent; (2) that to fix the carburetor was not the duty of the chauffeur; (3) that there was no proof that to fix the carburetor it was necessary to take the machine out of the shop; (4) that the machine was operated by one who was a stranger to the master. In my view, the elements that fix the liability of the master for the negligence of the servant were not present.” The learned court cited: Lotz v. Hanlon, 217 Pa. 339, the syllabus of which fairly states the principle as follows: “ In an action against an owner of an automobile to recover damages for personal injuries resulting from being run down by the machine, the plaintiff must show not only the fact that the person in charge was defendant’s servant, but the further fact that he was at the time engaged on the master’s business, with the master’s knowledge, and by the master’s direction. Evidence of the mere ownership of the machine is insufficient.” And also Sarver v. Mitchell, 35 Pa. Superior Ct. 69, the syllabus of which states the principle thus: “The owner of an automobile cannot be held liable for the killing of a child by his chauffeur, where it appears that the accident occurred when the chauffeur was not using the machine in the course of his employment, and on his master’s business, but, on the contrary, in practical opposition to the master’s instructions, and upon a pleasure trip in which the chauffeur’s personal friends or acquaintances were sharing the pleasure with him. In such a case evidence of the ownership of the machine is not sufficient in itself. The plaintiff must go further and show that the machine was being used in the course of the master’s business. If he fails to do this he may be properly nonsuited.” See also cases cited in Sarver v. Mitchell, 35 Pa. Superior Ct. 69.

Our conclusion is that the learned court below did not err in refusing to take off the compulsory nonsuit.

Judgment affirmed.


text:
    Snyder v. Globe Mutual Live Stock Insurance Company, Appellant.

      Insurance — Live stock insurance — Policy—Attaching by-laws to policy— Act of May 11, 1881, P. L. 20.
    1. An application by a member of a mutual live stock insurance company for insurance of an animal, and the indorsement of the application “approved,” without anything to indicate the amount of the insurance, is not a policy of insurance within the meaning of the Act of May 11, 1881, P. L. 20, even if that act applied to live stock insurance.
    2. The Act of May 11, 1881, P. L. 20, requiring the application and by-laws to be attached to a policy of insurance in order to make such papers admissible in evidence, has no application to policies of insurance issued by a live stock insurance company.
    Argued Dec. 8, 1908.
    Appeal, No. 241, Oct. T., 1908, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1907, No'. 53, on verdict for plaintiff in case of Lewis F. Snyder v. Globe Mutual Live Stock Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a contract of live stock insurance. Before Stewart, J.

      The facts are stated in the opinion of the Superior Court.
    At the trial the defendant offered in evidence the by-laws of the defendant company. Objection was made by the plaintiff, and the objection sustained. [8-12]
    Defendant presented the following points:
    1. Plaintiff having become a member of the mutual association defendant on November 28, 1904, is bound to comply with the by-laws adopted by the said association. Answer: That is true so far as his membership with the association is concerned; but it is refused so far as the special contract is concerned. [1]
    2. If the jury believe from the evidence that the plaintiff on October 8, 1905, had a black horse valued at $250 insured by the defendant association against death in class “B;” that on January 2, 1906, the board of directors of the defendant association laid assessment No. 41 of one per cent upon all the members of said class “B” to cover loss arising in the said class; that the plaintiff under said resolution was assessed the sum of $81.85 upon the different certificates held by him in said class; and that notice was mailed on February 19, 1906, of said assessment No. 41 to him, then it became his duty under the by-laws as a member of the said class to pay said assessment within thirty days from February 19, 1906. If the jury further believe from the evidence that the plaintiff did not pay the said assessment until March 24,1906, that is, more than thirty days after the sending of notice of the said assessment, then the plaintiff was in arrears and under the by-laws of the association insurance on the said black horse was suspended until April 6, 1906, that is, ten days after the payment of the assessment. Answer: That point is refused. I say that that ten days’ clause has no reference to this contract. [2]
    3. If the jury believe that the black horse for whose death indemnity is claimed in this suit became sick on March 24, 1906, and remained sick for a week or ten days and died of such sickness on April 2, 1906, then the plaintiff cannot under the by-laws recover and the verdict must be for the defendant. Answer: That point is refused. [3]
    4. Under all the evidence the verdict must be for the defendant. Answer: That point is refused. I submit the question as to whether he was guilty of fraud to you. [4]
    5. If the plaintiff on March 24, 1906, after the horse was sick with the disease from which he afterwards died, sent his check for the amount of his assessment, which was at that time known by him to be overdue, and his insurance lapsed, and the secretary of the company accepted his check, ignorant of the fact that the horse was sick at that time, the plaintiff was guilty of such an act of fraud upon the company that he cannot recover in this action. Answer: That point is refused. I submit the case to you. [5]
    Verdict and judgment for plaintiff for $204.37. Defendant appealed.

      Errors assigned among others were (1-5) above instructions, quoting them, and (8-12) rulings on evidence, quoting the bill of exceptions.

      James L. Schaadt, with him James T. Woodring, for appellant.
    There was no contract of insurance shown: Hamilton v. Lycoming Mut. Ins. Co., 5 Pa. 339; Schaffer v. Mutual Fire Ins. Co., 89 Pa. 296; Mutual Fire Ins. Co. v. Elkins, 124 Pa. 484; Mut. Live Stock Ins. Co. v. Dutton, 6 Del. Co. Rep. 148; Standard Life and Accident Ins. Co. v. Carroll, 86 Fed. Repr. 567.
    An oral contract of insurance ought to be proved clearly beyond a doubt; the full extent and limit of it ought to be ascertained by unexceptional evidence: Smith v. State Ins. Co., 58 Iowa, 487 (12 N. W. Repr. 542); Smith v. Odlin, 4 Yeates, 468; Keystone Mattress, etc., Co. v. Pittsburg Underwriters, 21 Pa. Superior Ct. 42.

      Edgar C. Nagle, for appellee.
    To grant indemnity or security against loss for a consideration, is not only the design and purpose of an insurance company, but is also the dominant characteristic feature of the contract of insurance: Com. v. Beneficial Association, 137 Pa. 412. Such a contract may be entirely in parol: Hamilton v. Lycoming Mutual Insurance Co., 5 Pa. 339. Or it may be a mere memorandum and receipt as in State Fire and Marine Insurance Co. v. Porter, 3 Grant, 123.
    March 8, 1909:
    As long as a contract.of insurance specifies the subject-matter, the risk insured against, either expressly or by implication, the amount insured, the duration of the risk and the consideration, it is such a contract of insurance as will entitle the plaintiff to recover: Keystone Mattress, etc., Co. v. Pittsburg Underwriters, 21 Pa. Superior Ct. 42.
    The court did not err in excluding the by-laws of the defendant company as evidence in this case: Mut. Live Stock Ins. Co. v. Dutton, 6 Del. Co. Rep. 148; Standard Life & Accident Co. v. Carroll, 86 Fed. Repr. 567; Zimmer v. Central Accident Ins. Co., 207 Pa. 472; New Era Life Assn. v. Musser, 120 Pa. 384; Pickett v. Pacific Mutual Life Ins. Co., 144 Pa. 79; Morris v. Life Assurance Co., 183 Pa. 563; Fisher v. Life Association, 188 Pa. 1; Norristown Title, etc., Co. v. John Hancock Mutual Life Ins. Co., 132 Pa. 385.
   Opinion by

Morrison, J.,

This case came into the court below by appeal from the judgment of a justice of the peace, in favor of the plaintiff. On trial before the court and a jury, there was a verdict in favor of the plaintiff for $204.37, and the court having discharged the rule for judgment in favor of the defendant non obstante veredicto, and refused a new trial, judgment was entered on the verdict and therefore this appeal.

The appellant’s statement of the questions involved brings at once before us the important and controlling points in the case: “ (a) Does an application by the member of a mutual live v,stock insurance company, for insurance of an animal and the indorsement of the application, ‘approved,’ constitute more than a parol contract of insurance? (b) The member in consideration of such acceptance agreeing to comply with the bylaws of the company adopted by himself and fellow members, do the by-laws become a necessary, essential part of such parol contract, to be received in evidence without being ‘ attached to and accompanying’ the application? (c) Is such an application, so accepted, a ‘ policy/ within the meaning of the Act of May 11, 1881, P. L. 20?”

It appears that the defendant company was incorporated on April 29,1887, for the insurance of horses and cattle against death, upon the mutual plan. The corporation has no capital stock; has made no profit; paid no dividends and levied only so much money in the twenty years of its existence as was required for the payment of the losses of its members.- The plaintiff became a member of the corporation on November 28,1904. From time to time he applied for and received insurance until at one time he had nearly 100 horses insured. At the annual meeting on January 7, 1905, the members of the corporation' adopted the following by-law: "The face of the assessment is to be paid in the home office within thirty days after the date of notice. If not paid at the expiration of thirty days, ten per cent will be added for the purpose of defraying expenses for collection and insurance shall be suspended and remain suspended for a period of ten days, after all assessments are paid. If not paid in ninety days, the tax shall be collected by legal process, and all interests in the company shall be. forfeited and membership and insurance may be canceled by action of the board of directors. An animal not in good health at the time of suspension cannot be reinstated until its health is reestablished.”

On October 8, 1905, the plaintiff applied for insurance of a black horse, with white star, paying fifty cents to the inspector taking the application. In his application plaintiff agreed that the application, with the statements made by him, should form the basis of the contract between him and the association, and further agreed that if any of the statements made by him should be untrue, or if he should neglect to pay the assessments on or before the day they fall due, or if he should fail to comply with the by-laws and regulations governing the company, that then the contract should become null and void. The application was approved the same day by the secretary and a duplicate of the application so indorsed and marked No. 93, whole number 4,693, sent to plaintiff. Following the custom of the association, no policy or other written evidence of the insurance was issued to plaintiff. On January 1, 1906, an assessment (No. 41) of $1.00 upon every $100 of insurance was laid by the board of directors to cover the losses which occurred during the preceding three months. Plaintiff’s assessment upon the insurance held by him was $81.85.' Notice of the assessment was mailed to him on February 19, 1906, and the thirty days allowed to him to pay said assessment expired on March 21, 1906, without his having paid it. On March 23, 1906, a black horse belonging to plaintiff, and which he claimed to be the animal insured under certificate No. 4,693, was taken sick with pneumonia. A veterinary was called in on the next day and he treated the horse until it died. On March 24, 1906, knowing that the horse was sick, and without notifying the association of its sickness, plaintiff mailed a check to the defendant’s office for $81.85 in payment of assessment No. 41, then three days overdue. A letter inclosing the check shows that plaintiff knew that he had not paid the assessment within the prescribed time. The check was received by the secretary of the association on March 26, 1906. The horse took sick on March 23, 1906, at a time when plaintiff’s insurance thereon was suspended by reason of his failure to pay assessment No. 41. The horse died on April 2, 1906, within the penalty period of ten days, from March 26, the day on which plaintiff paid the assessment.

An examination of plaintiff’s exhibit No. 2, being his application for insurance on the black horse, and which the learned court below construed to be an insurance policy, shows that it is merely an application for insurance, approved on October 8, 1905, by H. S. Funk, secretary. It is utterly impossible for us to construe this paper, standing alone, as an insurance policy or contract, which can be enforced without parol testimony. Nowhere within its four corners does it state the amount of insurance, nor when to be paid. It is not clear from this paper whether it is an insurance against loss by sickness and death or loss by theft, or both. There is on this paper an estimated value of the horse, in figures, $250. In this application the plaintiff agrees to be bound by the by-laws and regulations governing said company and in case he fails or neglects to comply with the same, the contract shall become null and void, On the back of this application there appears, along with the filing, th$ indorsement “Amount of Insurance $250.00.” But this is not signed by anybody, and there is absolutely nothing in or on the paper showing that the company undertook to pay $250 for the loss of the insured horse. But by the offer of parol testimony and the by-laws of the company in evidence, along with this application, the plaintiff could have shown that the company was obligated to pay to the plaintiff three-fourths of the true and actual market value of the horse if he died or was stolen, and not recovered, while the insurance was in force, but it is very clear that the plaintiff, a member of this mutual company, must comply with the by-laws, rules and regulations of his company in order to keep his insurance in force. The fundamental error running through the trial of this case was, in our opinion, the ruling of the court below that the by-laws and rules and regulations of the company could not go in evidence because they were not attached to and accompanying the application. The learned court necessarily took this view in order to bring the case within the provisions of the Act of May 11, 1881, P. L. 20. To accomplish this the court was compelled to treat this application as a contract or policy of insurance. But we have already seen that it is not a complete contract of insurance and that the plaintiff could not recover upon it without additional evidence to complete his insurance contract. The act of May 11,1881, provides: “That all life and fire insurance policies upon the lives or property of persons within this commonwealth, whether issued by companies organized under the laws of this state, or by foreign companies doing business therein, which contain any reference to the application of the insured or the constitution, by-laws or other rules of the company, either as forming part of the policy or contract between the parties thereto, or having any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application, as signed by the applicant, and the by-laws referred to; and, unless so attached and accompanying the policy, no such application, constitution or by-laws shall be received in evidence, in any controversy between the parties to, or interested in, the said policy, nor shall such application or by-laws be considered a part of the policy or contract between such parties.” The court below held that the application was an insurance policy or contract and refused to allow any bylaws, rules or regulations of the company to go in evidence because of the provisions of the act of 1881 above quoted.

The learned judge in his opinion refusing a new trial and discharging the rule for judgment in favor of the defendant non obstante veredicto, contends and cites ample authority for the proposition that an insurance contract may be in parol. There is no doubt about the soundness of this position. The difficulty in the present case is that the plaintiff could not make out his case without testimony outside of the written and printed application and, if he was relying on a parol contract, it is impossible for us to see why all of the evidence bearing on that contract was not competent. The plaintiff, in his application, referred to the by-laws and regulations governing the company, of which he was a member, and unless there was an insurance policy in this case, within the meaning of the act of 1881, it is not apparent how that act can be invoked to exclude the bylaws and regulations of the company which were confessedly made a part of the contract of insurance by the plaintiff, himself, in his application, treated by the court as a policy of insurance. Note the language of the act of 1881 with its title “Relating to life and fire insurance policies. That all life and fire insurance policies upon the lives or property of persons within this Commonwealth, etc.,” it seems to us that the legislative intent here embraces life insurance policies issued on human beings and fire insurance policies issued upon the property of persons within this commonwealth. The court below seems to understand the case of Zimmer v. Accident Ins. Co., 207 Pa. 472, to warrant him in holding that the act of 1881 applies in the present case. We do not so understand that decision, nor do we understand it to controvert Acheson, J., in Standard Life and Accident Ins. Co. v. Carroll, 86 Fed. Repr. 567, in which that judge says, referring to the act of 1881: “At the date of this act there was, and still is, in Pennsylvania, a legislative classification of insurance. The Act of May 1, 1876, P. L. 53, provides for the incorporation of four different kinds of insuranee corporations: first, to make insurance upon fire and marine risks; second, to make insurance upon lives; third, to make insurance upon health and against accidents; and fourth, to make insurance upon live stock. And the act contains distinctive provisions applicable to these several classes of insurance companies.” And Judge Acheson concludes that the act of May 11, 1881, applies only to the first two classes, fire and life insurance policies, and not to accident insurance companies. This was followed in the same court in 1899 by National Accident Society of New York v. Dolph, 94 Fed. Repr. 743. Now Zimmer v. Accident Ins. Co., 207 Pa. 472, does not refuse to follow the classification and conclusion of Judge’ Acheson, as we understand that case. The opinion of Mr. Justice Brown distinguishes his case by calling attention to it in this language: “And why is not the present policy a life insurance policy? It insures not only against accidents, but against loss of life as well, when caused by accident, and is it any less a life insurance policy because its indemnity for loss of life is confined to death from accident?” It is clear from Justice Brown’s language, that the Zimmer policy is controlled by the act of 1881 because it was insurance upon the life of a person. Mr. Justice Brown expressly says that the policy in that case insured not only against accidents, but against loss of life as well. This does not seem to disagree with Judge Acheson’s conclusion.

We do not understand the Supreme Court to decide that a purely accident insurance policy must have a copy of the application and by-laws attached to it to make them admissible in evidence. We do not think the Zimmer case sustains the learned court below in excluding the by-laws in the present case.

We have examined a large number of Supreme Court cases holding that the act of 1881 applied, but they are all either life or fire insurance policies. Among these cases are Pickett v. Ins. Co., 144 Pa. 79; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; New Era Life Assn. v. Musser, 120 Pa. 384; Hebb v. Ins. Co., 138 Pa. 174, and Norristown Title, Trust, etc., Co. v. Ins. Co., 132 Pa. 385.

After a somewhat thorough examination of the cases we find no controlling authority requiring us to hold that the act of 1881 warranted the court below in excluding the by-laws of the defendant corporation in the present case. This because there was no life or fire insurance policy within the meaning of that act, and, second, because the plaintiff did not have an insurance policy upon which he could recover without parol evidence, and the relevant, competent and best evidence ought to have been admitted.

The learned counsel for the plaintiff objected to and succeeded in having the learned court exclude material and competent evidence, the by-laws of the defendant company, and as the case stood when it went to the jury, the court ought to have affirmed the defendant’s fourth point (fourth assignment): “Under all the evidence the verdict must be for the defendant.” For this reason the learned judge erred in not granting judgment for the defendant non obstante veredicto on the reserved question, “Whether there is any evidence of facts under which the plaintiff is entitled to recover.” This view of the case renders it unnecessary for us to discuss the other assignments of error.

The judgment is reversed and we here enter judgment in favor of the defendant non obstante veredicto.


author: Beaver, J.,

text:
    Glauser v. Scofield, Appellant.

      Mechanic’s lien — Leasehold estate — Notice—Act of June 4, 1901, P. L. 431, sec. 10.
    Where a contractor who has furnished labor and materials for a building, has no knowledge that the apparent and record owner had executed a long lease of the land to a corporation before the labor and materials weréíurnished, and serves upon the apparent owner the notice provided by‘the Act of June 4, 1901, P. L. 431, before the expiration of the time to file a lien against the leasehold estate had expired, and the apparent owner takes no action in reference to the notice, and gives the plaintiff no information and makes no attempt at repudiation by notice or posting, as provided in the fourth section of the act of 1901, supra, the plaintiff may presume that the owner ratified the contract, and a lien filed three days after the right to file a lien against the leasehold estate had expired, will be valid.
    February 26, 1909:
    Argued Nov. 20, 1908.
    Appeal, No. 201, Oct. T., 1908, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1907, No. 2, for defendant on the whole record in case of Stacy G. Glauser and Edwin D. Glauser, trading as Stacy G. Glauser & Son, v. Glenn M. Scofield, owner or reputed owner, and the Scofield Company, contractors.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Johnson, P. J.
    The facts are stated in the opinion ofi'the Superior Court.

      Error assigned was in entering judgment for plaintiff on the whole record.

      Albert J. Williams, for appellant,
    cited: McClintock v. Criswell, 67 Pa. 183; Boteler v. Espen, 99 Pa. 313; McKown & Beatty v. Harris, 15 Pa. Dist. Rep. 611.

      George M. Booth, for appellee,
    cited: Paine v. Bank, 194 Pa. 403; Rhawn v. Edge Hill Furnace Co., 201 Pa. 637; Sensinger v. Boyer, 153 Pa. 628.
   Opinion by

Beaver, J.,

The plaintiffs furnished labor and materials for, and entering into, the construction of a building upon land belonging to the defendant, Glenn M. Scofield, and, so far as the public records showed, belonging to him alone, the deed to him individually being recorded March 15, 1907. On May 23, 1907, the Scofield company ordered certain materials for this building from the plaintiffs, and at sundry times subsequently the plaintiffs furnished materials upon the orders of the said, the Scofield company, up to and including August 30, 1907, amounting to $1,411.77, subject to credits of $86.47, leaving a balance on that date of $1,325.30.

On October 4, 1907, a notice in writing was served upon the defendant, Glenn M. Scofield, of the intention of the plaintiffs to “file a claim against your property for the sum of thirteen hundred and thirty-five dollars and thirty cents ($1,335.30) for material furnished and labor done in and about the erection of a certain building, with the appurtenances, on your premises, situate in the borough of Marcus Hook, in the county of Delaware and state of Pennsylvania aforesaid,” describing the premises at length; setting forth also that: “The annexed sworn statement sets forth the contract under which we claim the amount due and how made up, the kind of labor and material furnished and the date when the last work was done or materials furnished, which was on the thirtieth day of August, 1907,” to which was annexed an affidavit, setting forth in detail the time when the said materials were furnished and the value thereof. To this notice, no reply of any kind was made to the plaintiffs, nor was there any repudiation of the alleged contract attached to the building.

On December 3, 1907, a mechanic’s lien was filed against “Glenn M. Scofield, owner or reputed owner, and the Scofield Co., contractor.” A scire facias was issued upon the said lien January 15, 1908, and, on February 20 of the same year, an affidavit of defense was filed, in which it was alleged that Glenn M. Scofield was not the sole owner of the property upon which the building, to which the plaintiffs had contributed, was erected, but that he held the same in trust for his brother, Ed-son M. Scofield, to the extent of the one-half thereof, he having contributed the one-half of the purchase money. It was also alleged in the said affidavit that the owners of the fee had made a lease thereof to the Scofield company for the period of ninety-nine years and the said Scofield company of which Edson M. Scofield was the president and Glenn M. Scofield, the defendant, the secretafy, had authorized the said company to erect a building thereon, not as contractor for them individually or either of them, denying that the Scofield company was the contractor for the defendant, Glenn M. Scofield. So far as the record shows, this seems to have been the first information given to the plaintiffs in regard to the actual ownership of the land upon which the building was erected and the lease under which the Scofield company acted in the erection thereof. An answer to the affidavit of defense was filed by the plaintiff on April 11, 1908, and a motion made thereafter by the defendant “for judgment on the whole record.” On September 21, 1908, the court filed the following opinion: “Upon the whole record, I am of the opinion that the plaintiff is entitled to judgment,” and judgment was thereupon directed to be entered “ in favor of the plaintiff and against the defendant for the sum of $1,335.30, with interest from September 2, 1907,” the damages being assessed September 23, 1908, at $1,409.40. This opinion and the entry of the judgment, in pursuance of it, constitutes the basis of the several assignments of error, which, although varied in form, are practically the same in substance.

Under sec. 10 of the Act of June 4, 1901, P. L. 431, it is provided that: “In the case of tenancies or leasehold estates, of alterations and repairs, and of fitting up or equipping old structures with machinery, gearing, boilers, engines, cars or other useful appliances, the claim must be filed in the .court of common pleas of the county or counties in which the structure or other improvement is situate within three months after the claimant’s contract or agreement is completed; and in all other cases within six months thereafter; and when filed, it shall be entered and indexed in the mechanic’s lien docket.”

In the second section of this act, which describes the property subject to a lien and when not subject to lien, it is provided: “Nor shall any claim be valid against the estate of an owner, by reason of any consent given by him to his tenant to improve the leased property, unless it shall appear in writing, signed by such owner, that said improvement was in fact made for his immediate use and benefit.”

In the fourth section of this act, it is further provided: “Any owner not being a committee, guardian or trustee as aforesaid, who shall knowingly suffer or permit any person, acting as if he were the owner, to make a contract for which a claim could be filed, without objecting thereto at the time, shall be treated as ratifying the act of such person acting as if he were the owner and the claim may be filed against the real owner, with the same effect as if he himself had made the contract. Ratification shall also be presumed and a like subjection to lien shall follow, if the owner, not being a committee, guardian or trustee, as aforesaid, subsequently learning of such contract or of work being done upon his property, shall not, within ten days thereafter, repudiate the same, either by notice to the contractor and subcontractors or by posting such repudiation on the most public part of the structure or other improvement.”

Without determining whether or not the defendant, Glenn M. Scofield, did “knowingly suffer or permit any person, acting as if he were the owner, to make a contract” for the erection of the building upon the land, title to which was shown by the records of Delaware county to be in him, and, therefore, for which a claim could be filed, without objecting thereto at the time, and should be, therefore, “treated as ratifying the act of such person acting as if he were the owner,” and that, therefore, the claim might “ be filed against the real owner with the same effect as if he himself had made the contract,” it is admitted that a notice containing specific description of all the materials furnished and work done in and about the erection of the building upon his premises was given by the plaintiffs to the defendant prior to the time at which the right of the plaintiffs to file a lien against the leasehold estate had expired. Apparently, so far as the record shows, no action whatever was taken by the defendant in reference to this notice. The ten days, within which it was his right to repudiate a presumed ratification of the contract or work done upon his property which might follow, expired before the plaintiffs ’ right to file a lien against the leasehold estate of the Scofield company had been lost. Had the plaintiff, therefore, the right to presume the ratification of the contract made by the Scofield company, by reason of the absence of all repudiation by the defendant, either by notice or by posting upon the building erected upon his premises?

Recalling now the relation in which the parties stood to each other in regard to this transaction, the defendant, Glenn M. Scofield, had within his knowledge facts which it was essential for the plaintiffs to know, in order to exercise the rights which belonged to them, under the mechanic’s lien law. The plaintiffs did not know these facts and had no means of acquiring knowledge in regard to them. The declaration of trust made by the defendant and his wife, admitting that the one-half of the real estate, upon which the building was erected, belonged to his brother, and the lease for ninety-nine years to the Scofield company, of which the brother was the president and the defendant the secretary, were not upon record. Had the plaintiffs been informed of the real facts in the case within the ten days of the notice referred to, they could have filed their lien within the three months allowed by law for the filing of a lien against a leasehold estate, which would have given them a lien upon the estate held by the lessee here described as contractor, under the lease referred to. Relying upon the fact that the defendant gave no notice and presuming, as the law gives them the right to do, that he thereby ratified the contract, the plaintiffs did not file their lien, until December 3, 1907, which was three days after the right to file the lien against the leasehold estate belonging to the so-called contractors had expired.

The act of assembly in this respect, it seems to us, rests upon a general principle, clearly defined in Rhawn v. Edge Hill Furnace Co., 201 Pa. 637, in which it is held that: “Silence becomes a fraud and works an estoppel only when a party withholds information which the other party does not have or does not possess the means of obtaining, and which he should have to protect his rights. Where both parties know the facts or have equal means of knowledge of the facts, the silence of either in regard to them is not a fraud upon the other party:” Pittsburg Sheet Mfg. Co. v. Beale, 204 Pa. 85.

The appellant, in his argument, endeavors to establish the proposition that the fourth section of the mechanic’s lien act of 1901 does not apply in this case, because the second section provides, as already quoted, that the defendant, the owner of the land, had not given his consent in writing to his tenant to improve the leased property, and that, therefore, he was not bound, but we cannot see that the fourth section in any way interferes with, or makes nugatory, this part of the act, or that these sections are in any way dependent upon or to be construed with reference to each other. If the case' had been tried before a jury, the question as to whether or not the defendant, Glenn M. Scofield, had knowingly suffered or permitted any person acting as if he were the owner to make a contract for which a claim could be filed might well have been submitted to that tribunal, but we have purposely omitted the consideration of this part of the section, because we think the ratification of the contract may be fairly presumed, because of the defendant’s silence, which, as we have seen, tended to mislead the plaintiffs as to their rights in the premises.

The case seems to have been treated below as if the rights of Glenn M. Scofield alone were involved. The judgment was directed to be entered against the defendant and, on October 1, 1908, the defendant in the above case, Glenn M. Scofield, excepts to the ruling of the court entering judgment in favor of the plaintiffs. There were no exceptions, apparently, by the other defendant, and the case before us was argued as though the rights of the defendant, Glenn M. Scofield, alone were affected by the judgment. There being no appeal by the other defendant, the judgment is, therefore, affirmed generally.

Judgment affirmed.

Morrison, Henderson, and Porter, JJ., dissent.


author: Henderson, J.,

text:
    Kennedy v. Schwab, Appellant.

      Ejectment — Boundaries■—Deeds—Block of lots — Evidence.
    1. In an action of ejectment a verdict and judgment for plaintiff for a strip of land, four-tenths of a foot wide, will be sustained where the evidence tends to show that the plaintiff’s and defendant’s lots were adjoining lots in a block of lots in which each lot was intended to be forty feet wide, that defendant’s lot as occupied by him exceeded that measurement' by four-tenths of a foot, that plaintiff’s was deficient to that extent, and that a fence had formerly stood on the line claimed by plaintiff and had fallen down from dilapidation.
    2. In such a case where it appears that defendant’s lot was the last conveyed, it is not error to admit in evidence the conveyances of the several lots, in order to show the order of the conveyances, and the identification of particular lots.

      February 26, 1909:
    Argued Dec. 10, 1908.
    Appeal, No. 167, Oct. T., 1908, by-defendant, from judgment of C. P. Northampton Co., Nov. T., 1907, No. 19, on verdict for plaintiff in case of James Kennedy v. Henry M. Schwab.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for a strip of land in Easton, Pennsylvania. Before Stewart, J.
    Verdict and judgment for plaintiff.

      Errors assigned were (1, 2) in admitting in evidence the deeds referred to in the opinion of the Superior Court, and (3) in refusing binding instructions for defendant.

      George W. Geiser, for appellant.

      Parke H. Davis, for appellee.
   Opinion by

Henderson, J.,

The appellant’s complaint is that the plaintiff failed to establish the location of the line to which he claims, and that the court erred in not giving binding instructions for the defendant. While much of the evidence is indefinite and unsatisfactory we cannot say that the question at issue should not have been submitted to the jury. There is affirmative evidence from which a jury might conclude that the dividing line between the lots of the plaintiff and the defendant was that set forth in the declaration. The plaintiff’s title was prior in date, and he testified that in 1873 he built a stone wall on the west side of his lot on the line given him by the surveyor and that he had the east line, the line in dispute, marked according to the grantor’s survey. The lot now owned by the defendant was formerly owned by Hugh Reilly, the plaintiff’s father-in-law, who acquired title in October, 1873, and the plaintiff testified that he built a fence along the line now claimed by him while he and his father-in-law were adjoining owners and that the fence remained until it fell down from dilapidation. There is also evidence that a stone wall exists on the lot line on the east side of Center street, which was built about thirty years ago, and that it was recognized by the owner of lot No. 38, as his west boundary. A division fence existing for about twenty-seven years between lots Nos. 40 and 42 and a wall erected about two years later on the line between lots Nos. 44 and 46 correspond with the wall along Center street. On the plaintiff’s theory lots Nos. 48,50,52 and 54 should have a uniform width of forty feet, and the division line contended for gives each of them that measurement as shown by the plaintiff’s surveyors. The lots were laid out in a block by the Lehigh Coal and Navigation Company and were intended to have a uniform width of forty feet. The defendant’s lot, as occupied by him, exceeds that measurement by four-tenths of a foot and the plaintiff’s is deficient to that extent. On the plaintiff’s evidence we think there was a sufficient identification of the line to justify a submission of the question to the jury.

The allegation of a consentable line set up by the defendant was purely one of fact which was not made out to the satisfaction of the jury. The question was clearly and fairly submitted by the learned judge of the court below.

It was not error to admit the conveyances of the several lots contained in the block, for the defendant’s was last conveyed and the deeds were competent to show the order of conveyance and the identification of the particular lots. The descriptions were not sufficiently definite to throw much light on the case, but that did the defendant no harm.

The judgment is affirmed.


text:
    Sisters of the Blessed Sacrament.

      Taxation — Charitable corporation — Farm, land.

    A charitable corporation organized to promote the education of Indian and negro children and to train teachers for that service, is subject to taxation for land owned by it and used solely for tillage and pasturage in order to provide food for the inmates of the institution, if it appears that the endowment of the corporation is such that the food supplied by the farm could be procured from other sources of income.
    February 26, 1909:
    Argued Nov. 19, 1908.
    Appeal, No. 79, Oct. T., 1908, by the Sisters of the Blessed Sacrament, from order of C. P. Bucks Co., May T., 1907, No. 000, affirming assessment of land for taxation.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from tax assessment. Before Stout, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order sustaining the assessment.

      Walter George Smith and H. Yerkes, of Yerkes, Ross & Ross, for appellant.
    This case falls within the principle enunciated by the Supreme Court in Pennsylvania Hospital v. Delaware County, 169 Pa. 305, where it was held that: “Property which is used directly for the purposes and in the operation of the charity is exempt, though it may also be used in a manner to yield some return and thereby reduce the expenses.” See also Thiel College v. Mercer County, 101 Pa. 530; Haverford College v. Rhoads, 6 Pa. Superior Ct. 71.

      Hugh B. Eastburn, county solicitor, with him John C. Stuckert, for appellee,
    cited: Sisters of St. Francis v. Delaware County, 7 Del. Co. Rep. 214; Thiel College v. Mercer County, 101 Pa. 530; Pittsburg v. Third Presbyterian Church, 10 Pa. Superior Ct. 302; Sunday School Union v. Phila., 161 Pa. 307.
   Opinion by

Henderson, J.,

The appellant is a corporation organized to promote the education of Indian and negro children and to train teachers for that service. Its real estate in Bucks county consists of 124 acres with a convent, dormitory and other buildings adapted to the purposes of the organization. The land which is the subject of the assessment complained of is known as the Strickler farm, containing twenty-two acres, and was acquired several years after the organization of the institution. This farm is devoted to agricultural purposes: about ten acres to pasturage and the balance to tillage. The farmhouse is occupied by a gardener and farmhand, the latter of whom pays $4.00 a month for rent. The barn is used for the stabling of cattle and presumably for other purposes usual in such cases. The institution does not give any training to boys except in school work, and the farming operations are carried on by other persons than inmates. The Act of May 14, 1874, P. L. 158, passed pursuant to the provisions of sec. 1, art. IX, of the constitution, exempts from taxation all institutions endowed and maintained by public or private charity “with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same.” It is incumbent on the appellant to show that the land in question is necessary for the occupancy and enjoyment of the institution. This requirement is not met by proving that it is useful or convenient or profitable, for in that way land wholly disconnected with the immediate objects of the charity might be held and managed free from liability for the payment of tax. The use to which this land is put is the production of food for the teachers and pupils in the convent and school, from which there is a small annua-1 surplus of some kinds. The charity had existed for years before the land was purchased, and if the farm were sold its object could still be prosecuted without impairment of its efficiency. It would be necessary to procure the supplies obtained from the farm from some other source, but the school, the convent, the lawn, the orchard and all the appurtenances now or heretofore used for school purposes would remain. That the product of the farm operations is devoted to charity does not affect the result. It is a business enterprise carried on in aid of the institution and profitable to it. If the soil were peculiarly adapted to the growth of tobacco and appropriated to the cultivation of that crop and the proceeds thereof were applied to the purchase of food it could hardly be contended that such enterprise was necessary to the use and enjoyment of the school, and the legal distinction is not clear between the consumption of the crops directly and a similar use of provisions purchased with money derived from a sale of such crops. It is urged that milk and vegetables and other produce are essential to the subsistence of those connected with the school and that this brings the case within the exemption of the statute. This reasoning, however, would justify the prosecution of agricultural enterprises equal to the demands of the institution, and if these may be supplied land may in like manner be held for the maintenance of flocks for the production of wool to be converted into clothing for the children and herds of cattle to be converted into beef, and thus large bodies of land not used in any proper sense directly in connection with the objects of such an institution would be withdrawn from the operation of the tax laws. The constitution and statute do not admit of such liberal interpretation. Generally speaking, all land is subject to taxation, and an exception must be clearly established. Thiel College v. County of Mercer, 101 Pa. 530, we think, rules this case. It is true it was held that the college was not a public charity, but Mr. Justice Gordon also discusses the case on the assumption that it is a public charity and proceeds to say that land to be used as a farm in connection therewith is not a necessary use within the meaning of the statute. This case was reaflirmed in Northampton County v. Lafayette College, 128 Pa. 132, the court calling attention to the fact that the assessment in the former case was on “farm land, one horse and two cows.” It is well decided that a parsonage located on the grounds of a church and used by the minister of the congregation is not necessary for the occupancy and enjoyment of the church, and the language of the act with reference to churches and their grounds is identical with that used with reference to institutions of benevolence or charity. It is said, however, that this case falls within the principle announced in Penna. Hospital v. Delaware County, 169 Pa. 305. We observe a marked difference, however. In that case part of the land was worked for profit to reduce expenses, but it appeared in the evidence that it was bought as part of the hospital plant to be used as an open-air sanitarium and roaming ground for insane and convalescent patients. It was shown also that the farms in actual operation with the live stock and crops thereon were part of the attraction and usefulness of the premises for curative purposes, and the decision was placed on the ground that these premises were an integral part of the hospital scheme. It was accordingly held that the farming operations were incidental merely to the object for which the land was acquired and used. That the appellant is engaged in a benevolent and praiseworthy work is apparent from the evidence presented and is admitted by the appellee, but its authority to hold land free from taxation under the exemption of the statute has a limit which we think is exceeded when it carries on a farming enterprise in aid of its charity. It still has more than 100 acres not subjected to tax ana we do not find anything in the record which would warrant the conclusion that that is inadequate as grounds for the accommodation, recreation and comfort of those connected with the institution in the prosecution of its work.

The decree is affirmed.

Rice, P. J., and Beaver and Head, JJ., dissented.


author: POPOVICH, Judge:

text:
    550 A.2d 1333
    WILLIAMS STUDIO DIVISION OF PHOTOGRAPHY BY TALLAS, INC., Appellee, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1988.
    Filed Nov. 28, 1988.

      Joseph F. Leeson, Jr., Bethlehem, for appellant.
    Jay N. Abramowitch, Reading, for appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment entered on a jury verdict in favor of the appellee, Williams Studio Division of Photography by Tallas, Inc. (hereafter, Williams), and against the appellant, Nationwide Mutual Fire Insurance Company (hereafter, Nationwide), for breach of a fire insurance contract.

This appeal presents a case of first impression, requiring this court to determine and explain the effect of a voluntary nonsuit on the running of the statute of limitations. The trial court ruled that Williams, after entering a voluntary nonsuit, could commence a second action after the expiration of the one year contractual period of limitation mandated by 40 Pa.S.A. § 636. We reverse and enter judgment in favor of the appellant.

The record reveals the following facts: Williams was in the business of photography and maintained a studio which was insured by Nationwide for fire protection. On December 31,1979, the studio was destroyed by fire. Subsequently, Nationwide contested liability, and Williams instituted a suit against Nationwide on June 26, 1980, within the one-year period expressly stated in the insurance contract and prescribed by 40 Pa.S.A. § 636. On May 10, 1982, during the course of the trial, Williams elected to take a voluntary nonsuit pursuant to Pa.R.C.P. Rule 230, which the trial court granted over the objection of Nationwide.

On November 22, 1983, almost four years after the fire, Williams commenced a second action on the same issue of Nationwide’s liability under the fire insurance contract as permitted by Pa.R.C.P. Rule 231. Nationwide moved for summary judgment and then for directed verdict claiming that the second suit brought by Williams violated the one-year statute of limitations mandated by 40 Pa.S.A. § 636, and, thus, the action was time-barred. The trial court denied the motions and allowed the case to continue. On January 24, 1986, the jury returned a verdict in favor of Williams in the amount of $30,000.00.

In its post-trial motions, Nationwide again asserted that the second action was filed four years after the date of the loss and, therefore, could not be sustained. The trial court reasoned that Williams had a substantive duty, under 40 Pa.S.A. § 636, to file an action within the prescribed twelvemonth period and that Williams’ act of filing its initial action fulfilled that duty. Despite acknowledging that the limitations period had expired, the trial court opined that, procedurally, Rule 230 preserved Williams’ right to refile its action under Rule 231 as long as the period of time “between the granting of the nonsuit and the filing of the second action was not unreasonable.” (Trial court opinion, p. 5) This appeal followed.

The appellant presently asserts that the appellee, after entering a voluntary nonsuit in its first'action, was precluded by the statute of limitations from initiating its second action on the identical casualty. The appellant bases his argument on the provisions of 40 Pa.S.A. § 636(2) which, in part, states:

2. Except as provided else where in this section, no insurance company, association or exchange shall issue a policy affording fir^ insurance, as defined in this section, on property in this' Commonwealth, unless such policy contains the following provisions as to such insurance: * * * * # *
Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss, (emphasis added)

The legislature has determined that a twelve-month period represents the reasonable period of time within which suits for loss due to fire damage must be brought. Schreiber v. Pennsylvania Lumberman’s Mut Ins. Co., 498 Pa. 21, 444 A.2d 647 (1982). Clearly, the legislature has mandated that every fire insurance policy contain such a one-year limitation provision, and the validity of the one-year limitation of suit provision has been consistently upheld by Pennsylvania Courts. See, e.g., General State Auth. v. Planet Ins. Co., 464 Pa. 162, 346 A.2d 265 (1975); Schreiber, supra, 498 Pa. 21, 444 A.2d 647; Petraglia v. American Motorists Ins. Co., 284 Pa.Super. 1, 424 A.2d 1360 (1981), affirmed, 498 Pa. 32, 444 A.2d 653; Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa.Super. 287, 361 A.2d 375 (1976).

To determine what effect, if any, a voluntary nonsuit has upon the running of a statute of limitation, we must first determine the result of a voluntary nonsuit. Although this is a case of first impression under Pennsylvania law, Federal law is well settled, and numerous Federal cases hold that “dismissal without prejudice operates to leave the parties as if no action had been brought at all.” Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191, 1194 (8th Cir., 1976); Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 721 F.2d 68, 77 (3rd Cir., 1983). Accord Le Compte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir., 1976); Bomer v. Ribicoff, 304 F.2d 427, 428 (6th Cir., 1962). See also Butler v. Sinn, 423 F.2d 1116 (3rd Cir., 1970) (per curiam). While not expressly stating that a voluntary non-suit or discontinuance operates to leave the parties as if no action had been filed, Pennsylvania case law reflects a similar result. In Deigan v. Deigan, 210 Pa.Super. 240, 232 A.2d 227 (1967), this court held that the issues raised in an action which is dismissed without prejudice are not res judicata in a subsequent action. Similarly, in Scharf v. Richard De Cou Co., 320 Pa. 552, 183 A. 41 (1936), our Supreme Court held that, when the merits of the action are not passed upon in the first action, dismissal is without prejudice, and a subsequent suit between the same parties based on the same action is not “res adjudicata.” Additionally, the language of Rule 231 supports our conclusion by expressly stating that the suit initiated after a voluntary nonsuit is a “second action,” not merely a continuation of the initial action.

Based upon the foregone discussion, we conclude that, when a plaintiff takes a voluntary nonsuit, it is as if the original suit was never initiated. Logically, since the original complaint is treated as if it never existed, the “statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice.” Cardio-Medical Associates, Ltd., 721 F.2d at 77; Moore, 539 F.2d at 1194; Bomer, 304 F.2d at 428-429.

In Scharf, supra, 183 A. 41, our Supreme Court expressly noted that, after a nonsuit was entered, a second suit based on the same accident could be instituted “within the statutory period.” In Scharf, supra, the plaintiff filed his second action prior to the expiration of the statute of limitations period related to the filing of his initial suit. Therefor, the issue before us was not directly addressed by Scharf, supra. However, the Court specifically noted the second suit was filed within the statutory period which suggests that the Court presumed the statute was not tolled by the complaint subsequently nonsuited.

In Doner v. Jowitt and Rodgers Co., 299 Pa.Super. 492, 445 A.2d 1237 (1982), the facts are fairly similar to those now before us. Therein, the appellants filed a second suit based on the identical cause of action raised in their initial suit against which a judgment of non pros was entered. Upon the appellee’s motion alleging that the statute of limitations had expired prior to filing the second suit, summary judgment was granted, and the appeal followed. Ruling upon those facts, we stated:

The legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations. Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770 (1976); Bucci v. Detroit Fire and Marine Insurance Co., 109 Pa.Super. 167, 167 A. 425 (1933). Appellants, of course have not done so. At the time the judgment of non pros was entered in the prior case, the applicable statute of limitations had long since expired, (emphasis added)
# sft * * # *
Therefore, the judgment of non pros must stand and the order of the Common Pleas Court entering judgment on the pleadings in favor of the appellee is hereby affirmed.

Doner, supra, 299 Pa.Superior Ct. at 497-498, 445 A.2d at 1239-1240.

The holdings of Doner, supra, and Scharf supra, intimate that the filing of the original complaint which subsequently suffers a voluntary nonsuit does not toll the statute of limitations.

In addition, direct support for our present holding is found in Royal-Globe Insurance Co. v. Hauck Manufacturing Co., 233 Pa.Super. 248, 335 A.2d 460 (1975) which held that: 1) Commencement of an action in. federal court does not toll the running of the statute of limitations against the action in state court; 2) action in state court does not toll the running of the statute of limitations against subsequent action in federal court; and 3) action in one state does not toll statute of limitations against action in another state. Therein, we adopted the general rule in respect of limitations set forth by the United States Supreme Court in Willard v. Wood, 164 U.S. 502, 523,17 S.Ct. 176, 181, 41 L.Ed 531 (1896) as follows:

The general rule in respect of limitations must also be borne in mind, that if a plaintiff mistakes his remedy, in the absence of any statutory provision saving his right, or where, from any cause, a plaintiff becomes nonsuit, or the action abates or is dismissed, and during the pend-ency of the action, the limitation runs, the remedy is barred, (emphasis added)

Royal-Globe Insurance Co., supra, 335 A.2d at 462; See also Sabo v. Parisi, 583 F.Supp. 1468 (E.D.Pa., 1984).

Accordingly, we hold that the statute of limitations is not tolled by the commencement of a suit subsequently dismissed without prejudice through a plaintiffs entry of a voluntary nonsuit. Consequently, we find that a plaintiff must file his second suit prior to the running of the applicable statute of limitations or his second suit will be time-barred despite his procedural right to refile under Rule 231. Instantly, Williams had to nonsuit and then commence his second suit pursuant to Rule 231 prior to December 31, 1980, in order to comply with the contractual and statutory limitations period. The appellee failed to do so, and we must rule that the appellee’s second action was time-barred. If we held otherwise, the appellant, who endured the burden of litigating the initial suit for over two years, would again be subjected to the same litigation; the appellee, however, would benefit immeasurably by the additional one and one-half years it had to prepare its case for a second time.

Finally, we express our concern over the trial judge’s almost cavalier regard for the statute of limitations. The trial judge stated:

... If we were to adopt the defendant’s position that once the case was dismissed by a voluntary non-suit, the plaintiff would be barred from filing a second action. A procedural rule [Rule 231] adopted by the judiciary would be rendered useless in this situation. This would result in an unacceptable intrusion by the legislature into the province of the judiciary.
We realize that a plaintiff who avails himself of the procedural benefits of Rule 230 and 231 may buy more' time to prove his case than if he had not used these rules____
The plaintiffs use of Rule 231 does not substantially enlarge the plaintiffs right to sue. Rather, it has only a collateral effect, since the plaintiff must still file his initial action within the one year period. Trial Court Opinion, p. 3-4.

In Laudenberger v. Port Auth. of Allegheny Cty., 496 Pa. 52, 436 A.2d 147 (1981), our Supreme Court, ruling upon the propriety of Pa.R.C.P. Rule 238, stated: “We certainly do not intend to, and will not, promulgate rules in contravention of the constitutional prohibition against abridging, enlarging or modifying substantive rights.” Laudenberger, supra, 436 A.2d at 155. Instantly, we find that the trial court's application of Rule 231 does precisely that which is forbidden; it effectually enlarges the statute of limitations period within which Williams may commence its action. Clearly, under the trial court's analysis, the plaintiff, not the legislature, determines the length of the statutory period. Instantly, Williams could unilaterally extend the statute of limitations by simply filing within one year of the casualty, then entering a voluntary nonsuit and subsequently filing a second action within a reasonable period of time. We will not allow such a result to occur.

In Schmucker v. Naugle, 426 Pa. 203, 231 A.2d 121 (1967), our Supreme Court unequivocally expressed the value of a definite statute of limitations, as follows:

‘Statutes of limitation are vital to the welfare of society and are favored in the law. They are found in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extended to the limit prescribed, is itself a conclusive bar. The bane and the antidote go together[.]’

Schmucker, supra, 231 A.2d at 123, quoting United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 102, 67 L.Ed. 261 (1922). See also Huss v. Comm., Dept. of Transp., 99 Cmnwlth.Ct. 386, 512 A.2d 1356, 1359 (1986).

Accordingly, we will enforce the statute of limitations with the effect which the legislature intended and time-honored jurisprudence mandates. In sum, we hold that a voluntary nonsuit operates to leave the parties as if no action had been filed at all. We also hold that the statute of limitations is not tolled by the filing of a suit subsequently nonsuited voluntarily. Consequently, we rule that the second action of a plaintiff commenced after expiration of the limitations period pursuant to Rule 231 is time-barred. Accordingly, we reverse the judgment of the lower court and enter judgment in favor of the appellant, Nationwide.

JUDGMENT REVERSED.

      . Rule 230. Voluntary Nonsuit
      (a) A voluntary nonsuit shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff during the trial.

        (b) After a plaintiff has rested his case in chief he may not suffer a voluntary nonsuit without leave of court and cannot do so after the close of all the evidence.

      . Rule 231. Second Action
      (a) After a discontinuance or voluntary non-suit the plaintiff may commence a second action upon the same cause of action upon payment of the costs of the former action.
      (b) After the entry of a compulsory non-suit the plaintiff may not commence a second action upon the same cause of action.

      . We note that a judgment of non pros is not identical to a voluntary nonsuit. However, after satisfying the proper criteria, a plaintiff may open a judgment of non pros and may institute another suit based on the same cause of action. Pa.R.C.P. Rule 1037; Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983). Similarly, after entering a voluntary nonsuit, a plaintiff may institute a new suit based on the identical cause of action. Pa.R.C.P. Rule 231. Thus, the judgment of non pros and a voluntary nonsuit are analogous for the purposes of this appeal.

      . Similarly, in Com., Dept. of Public Welfare v. Flowers, 46 Cmnwlth.Ct. 326, 407 A.2d 896 (1979), our Commonwealth Court, quoting the lower court opinion, stated:
      In this respect, we find that Rule 1901 compels a result different from that which obtains after a court order refusing to take off a voluntary nonsuit, or remove a judgment of non pros, becomes final. In these latter situations, a final and unappealed court order does not destroy the underlying cause of action, and the plaintiff, if within the statute of limitations, can commerce [sic] and prosecute a new proceeding upon the same cause of action, (emphasis added)

        Flowers, supra, 407 A.2d at 898.

      . We note that Pennsylvania does in fact have a savings clause. However, we also note that the savings clause does not apply to actions terminated by a voluntary nonsuit. 42 Pa.C.S.A. § 5535, in pertinent part, reads as follows:
      (a) Termination of prior matter.—
      (1) If a civil action or proceeding is timely commenced and is terminated, a party, or his successor in interest, may notwithstanding any other provision of this subchapter, commence a new action or proceeding upon the same cause of action within one year after the termination and any other party may interpose any defense or claim which might have been interposed in the original action or proceeding.
      (2) Paragraph (1) does not apply to:
      ******
      (ii) An action or proceeding terminated by a voluntary nonsuit, a discontinuance, a dismissal for neglect to prosecute the action or proceeding, or a final judgment upon the merits.
      It is also worth noting that, even if the appellant’s second cause of action had the benefit of the savings clause, the suit would still be time-barred since the second suit was filed well over a year after the voluntary nonsuit was entered.


text:
    550 A.2d 1338
    Marlene KNORR, Appellee, v. Michael KNORR, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 31, 1988.
    Filed Nov. 23, 1988.

      James E. Miscavage, Pittsburgh, for appellant.
    Philip Fabiano, Pittsburgh, for appellee.
    Before WIEAND, WATKINS and CERCONE, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether a court may reduce the amount of a prior order for the support of two children because of changed circumstances where the amount of the initial order was based upon an agreement between the children’s mother and father. We hold that a court can modify its own order. Therefore, we reverse and remand to permit the trial court to receive evidence and determine whether appellant’s changed financial circumstances warrant a reduction in the amount of the order.

Marlene and Michael Knorr were married on April 26, 1978. They had two children: Crystal, bom January 25, 1979; and Melissa, born August 6, 1980. Subsequently, Marlene and Michael were separated. On June 2, 1986, they entered into a marital settlement agreement which provided, inter alia, that Marlene was to have primary custody of the children. The agreement also provided as follows:

5. SUPPORT. Husband shall pay Wife the sum of Two Hundred ($200.00) Dollars per month support until such time as Husband is employed. When Husband becomes employed, he shall pay support according to the then current support guidelines of the Court of Common Pleas of Allegheny County, Pennsylvania.
9. PRESENTATION TO COURT. This Agreement shall be presented to a Court of competent jurisdiction in any action between the parties sounding in divorce with the request it be adjudicated to be fair, just and proper, and that it be incorporated by said Court as a part of the Order of said Court in the final decree (but not merged with the final decree) entered in said proceeding.

When a decree in divorce was entered on August 11, 1986, the decree contained language providing that “[t]he Agreement of the parties is attached hereto and made a part hereof.”

On February 11, 1987, Marlene filed a complaint for support in the Court of Common Pleas of Allegheny County, Family Division. As a result, on March 11,1987, a court order was entered by consent of the parties which provided, in pertinent part, as follows:

AND NOW, March 11, 1987, it is hereby ordered that the Payor pay to the Family Division, Court of Common Pleas TWO HUNDRED Dollars ($200.00) a month payable as follows: One half thereof on the 26th day of MARCH and the other half thereof on the 11th day of APRIL and like and equal amounts on the 11th and 26th days of each and every month thereafter for the support of [two children].

The order also provided specifically that it was enforceable by the court’s contempt power and that a failure to comply with the order could result in arrest and garnishment of wages. The court also directed Michael to apply for work and to report regularly to the Bureau of Employment Security.

In December, 1987, Marlene filed a petition to increase the order. She alleged that Michael “had obtained employment with Trumbell Trucking Company at a substantial raise in pay.” Shortly thereafter, Michael filed a petition to reduce the order. He alleged that he had been laid off from work in November, 1987, and was not eligible for unemployment compensation. A single hearing date was set for both petitions. That date was February 10, 1988.

Prior to the hearing date, Marlene moved to vacate the order which had set a hearing date on Michael’s petition to reduce the order. She argued that the support order was not subject to reduction because the parties’ marital settlement agreement had set the amount of child support at two hundred ($200) dollars per week. The trial court agreed and summarily denied Michael’s petition to reduce the order of support. Michael appealed.

In Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), the Superior Court, sitting en banc, considered “whether a property settlement agreement providing for the payment of support and incorporated into a divorce decree merged with the decree thereby becoming modifiable by the courts upon a showing of a material change in circumstances.” There, the parties had entered into a marital property settlement agreement providing that husband would pay to wife $800 per week for support of the parties’ two minor children. Subsequently, a decree in divorce had been entered which provided that the private agreement was to be incorporated into the decree without merging into it. Wife then brought an equity action on the contract to enforce the agreement. Husband was later found in contempt of the equity court’s order specifically enforcing the contract. The court ordered that he be imprisoned. Meanwhile, husband had filed a petition in the divorce action to reduce the amount of support on the grounds that his financial circumstances had changed.

The majority of the court in Sonder announced:

We, therefore, hold that any agreement which speaks of incorporation but rejects merger was intended by the parties not to be brought under the provisions of sections 401, 501(e) and (f) and 503 for the enforcement of separation agreements. Only by an Order which does not reject merger, or requires court enforcement of the agreement, does it become part of the decree and have the effect of an Order. By renouncing merger and failing to have language in the decree requiring enforcement as a court Order, the contract survives. In doing so, the parties reject the benefit of the provisions developed under the Divorce Code and the divorce procedures enunciated in the Civil Procedural Rules for contempt, attachment and payment of alimony on divorce. They do, however, avoid the law relating to recision [sic] of arrears or modification based on need, whether there be a need for an increase in the support Order or a modification downward as the circumstances would require.
Therefore, should the parties desire to have the agreement inflexible and binding only as a contract, merger is not the proper procedure. However, such contracts and agreements, in addition to actions in assumpsit, are still enforceable in equity by specific performance although they do not have the remedies available for enforcement of support Orders.

Id., 378 Pa.Superior Ct. at 494, 549 A.2d at 165. Because the Sonder court determined that the contract had survived, it held that the trial court had properly dismissed husband’s petition for a reduction on grounds that the court lacked jurisdiction to modify the agreement. The Court also held that the trial court had erred in ordering the husband imprisoned for violating its order in the contract action. To order imprisonment after a contempt finding for failure to pay a private support agreement, it found, would violate the constitutional prohibition against imprisonment for debt. Id., 378 Pa.Superior Ct. at 503-505, 549 A.2d at 170-171, overruling Hopkinson v. Hopkinson, 323 Pa.Super. 404, 470 A.2d 981 (1984).

In the companion case of Dechter v. Kaskey, 379 Pa.Super. 45, 549 A.2d 588 (1988), the trial court had reduced an order for the support of minor children because of changed circumstances despite the existence of a private agreement establishing the amount of such support. On appeal by the children’s mother, the Superior Court, en banc, affirmed. The Court said:

Pursuant to Sonder, we held both agreements and support Orders under certain circumstances could be given independent effect. Obviously, double recovery cannot be allowed on both the agreement and the support Order. To the extent the agreement is not completely satisfied by giving credit for the amount paid pursuant to the support Order, a debt is accumulated which may be recovered in an action of assumpsit or in equity. However, as we stated in Sonder, the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible. In this respect, by retaining the validity of the agreement, we do not offend Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983) (an agreement for child support may not be reduced by the court, although an Order to increase support is permissible when circumstances warrant) and Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981) (unless an agreement is merged into the divorce decree, it may not be modified by the court)____ Appellee is incorrect in alleging incorporation of an agreement requires enforcement as a support Order but does not permit modification. To do so would permit attachment of the person for a debt arising out of contract, which is impermissible. See, Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969); Silvestri v. Slatowski, 423 Pa. 498, 224 A.2d 212 (1966); Colburn v. Colburn, 279 Pa. 249, 123 A. 775 (1924); Pierce’s Appeal, 103 Pa. 27 (1883).

Id., 379 Pa.Superior Ct. at 49-50, 549 A.2d at 590.

In the instant case, Michael did not seek to modify the agreement into which he had entered with his wife. He sought only to reduce the amount of the support order which the court, in response to a separate petition by Marlene, had entered requiring him to pay the sum of two hundred ($200) dollars per month for his children. This order specifically had been made enforceable by the court’s contempt powers. Such an order may be modified. It may be modified upwards or downwards as the circumstances require. This is essential if the order is to be enforced by attachment of the payor’s person. A debtor will not be imprisoned merely for nonpayment of contractual obligations. Dechter v. Kaskey, supra, 379 Pa.Superior Ct. at 49-50, 549 A.2d at 590. Neither can an obligor be imprisoned for contempt because of failure to comply with a court order with which he or she is unable to comply. Sonder v. Sonder, supra. In order for a support order to be enforced by the contempt powers of the court, therefore, the court must necessarily have the power to modify its order as circumstances require. See: Sonder v. Sonder, supra (Concurring and Dissenting Opinion by Wieand, J.).

The notion that the parties’ agreement would establish a nonmodifiable floor for an order of child support first appeared in Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983). It can have validity only if an obligor can be imprisoned to enforce a decree specifically enforcing a private support agreement. Sonder, however, overruled Hopkinson v. Hopkinson, supra, and held that a private agreement is not enforceable by attachment of the person. Moreover, in Dechter v. Kaskey, supra, the notion that a private agreement established a nonmodifiable floor for a support order was specifically rejected. Although a private agreement cannot be modified by the courts, such an agreement is not enforceable by attachment of the person. A court order, which is enforceable by a court’s contempt powers, on the other hand, is always modifiable, upwards or downwards, as the circumstances may require.

It follows that in the instant case the appellant was entitled to have his petition to reduce the support order considered on its merits. Therefore, the order summarily dismissing his petition must be reversed. In view of our decision to reverse and remand for further proceedings, the order awarding counsel fees is also vacated. Appellee’s right to counsel fees is better determined as part of the proceedings to modify the order of support. Counsel fees cannot be awarded merely because appellant did not give notice of an intent to seek a reduction prior to the filing of his petition therefor.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . The Superior Court, however, reversed that portion of the trial court’s order which attempted to modify the amount of support set forth in the parties’ private agreement.