author: Wickham, J.,

text:
    In re Application of H. C. Snyder for Distiller’s License.

      Liquor law — Refusal of distiller's license — Legal reason.

    A refusal to grant a distiller’s license must be sustained, where one of the reasonable inferences, to be drawn from the opinion of the court below, is that the court was satisfied that the application was not made bona fide, and that the license was to be used, mainly, as a cover for the illegal sales of liquors, to be bought from other persons. This is equivalent to holding that the applicant was unfit.

      Refusal of license — Appellate jurisdiction.

    Ordinarily, whether a distillery can be “ successfully or profitably operated” is not a matter of inquiry.
    This court will not retry a license case on the evidence, nor look beyond the reasons for refusal, assigned by the court below.

      Decision in Lauck's appeal, limited.

    Effect of decision in Lauck’s Appeal, 2 Pa. Superior Ct. 53. limited.

      Argued March. 12, 1897.
    Appeal, No. 48, March T., 1897, by petitioner, from decree of Q. S. Cumberland Co., refusing a distiller’s license.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Petition for distiller’s license under the provisions of the Act of Assembly approved June 9, 1891, P. L. 257. Before E. W. Biddle, P. J.
    The petition was filed in due form applying for a distiller’s license to which a remonstrance was filed alleging that the petitioner was not a fit person to have such a license; that his petitioners could not truthfully say that he was a person of good moral character; that if granted the distillery would virtually be under the same proprietorship and management which it had been through all the past years when it was not run as a distillery, but as a place where liquors manufactured elsewhere were brought there and sold by the gallon. On which account and because of a want of confidence in the parties concerned in it, and for the reasons set forth and suggested in the opinion of the court below in Lauek’s Appeal, 2 Pa. Superior Ct. 53, license was refused.
    The court below filed the following opinion and decree:
    Among the papers in this case is a certificate dated January 23, 1897, and signed by R. E. Shearer, Collector of Internal Revenue, setting forth “that the distillery located at Newville, Pennsylvania, is now in full and complete operation by Henry C. Snyder, who has leased the property from E. P. Huntsberger, the owner, and complied with all the requirements of the U. S. Treasury Department.” Notwithstanding this certificate we are not satisfied that the property can be and will be operated as a distillery. E. P. Huntsberger, the present owner of the premises, received from this court a distiller’s license in February, 1893, and again in February, 1894, yet during the two years covered by these licenses he did not manufacture any liquor. Under the guise of a distiller, however, he carried on a large •wholesale trade in whisky which was made elsewhere and brought by him to Newville. In 1895 the court refused to again grant a license to him, and in 1896 refused to grant one to his lessee, Levi M. Lauck. The last mentioned refusal was based upon the

      fact that a grave doubt existed whether the plant could be successfully or profitably operated. See Lauck’s Appeal, 2 Pa. Superior Ct. 53. That doubt has not been in the least degree removed, for the certificate by the revenue collector is dated only three days ago and does not refer to any time prior to said date. Why was the property permitted to lie idle for several years (during two of which it was licensed) and only started into activity a few days before the present license court? The applicant in this case well knows the whole history of the plant, for he has been the intimate friend of E. P. Huntsberger for the past four years, has come with him to each license court, and has manifested such a great interest in the matter of license that many people believed him to be the owner of the premises. No one knows better than he that a strong presumption exists against the bona fides of any attempt to get another license from this court for the “so-called- distillery.” It is needless to enlarge further upon the subject, for we believe that it would be a direct violation of the spirit of the law to grant a distiller’s license in this case. The reason which induced a refusal of license one year ago is still operative.
    And now, January 26, 1897, after careful consideration of the evidence in this case and a full hearing of the parties interested by their counsel, a license is refused.
    And now, January 26, 1897, an exception to above decree is noted on behalf of petitioner.

      Errors assigned were (1) In refusing to grant the prayer of the petitioner. The prayer is : “ He prays your honorable court to grant him a license to sell and deal in spirituous, vinous or malt liquors, or any admixture thereof, in quantities not less than one gallon, agreeably to the act of assembly in such case made and provided.” (2) In not approving the bond and sureties of the applicant filed in this case. (3) In filing the opinion and decree, reciting same. (4) In filing and entering decree, reciting same. (5) In refusing the license as prayed for.

      A. G-. Miller and E. E. Beltzhoover, with him John R. Miller, for appellant.
    — The appellant rests his case on the summary of the present state of the law found in Schlaudecker v. Marshall, 72 Pa. 200; Johnson’s License, 156 Pa. 322; Gemas’s License, 169 Pa. 44, and Doberneck’s License, 1 Pa. Superior Ct. 99, and the cases therein cited.
    May 17, 1897:

      G-eo. Edward Mills and R. M. Henderson, for appellee.
    — Relied upon Lauck’s Appeal, 2 Pa. Superior Ct. 58.
   Opinion by

Wickham, J.,

The facts of this case, so far as we can consider them, are so similar to those of Lauck’s Appeal, 2 Pa. Superior Ct. 53, wherein was involved the refusal of license for the same distillery, that we are led to follow our decision in the latter case.

The reasons given and suggested by the learned judge of the court below, for refusing license to the appellant here, sufficiently show that he was satisfied, on the evidence before him, that the application was not made in good faith, and that the applicant intended to use the license mainly as a cloak to cover illegal sales of liquors bought from others. This, of course, would demonstrate unfitness on the part of the applicant.

What conclusion we might have reached, on the evidence, is not material, as we cannot retry the case on the facts, or look beyond the reasons for the refusal, assigned by the court below.

We do not commit ourselves to every conclusion that might be inferred from the language of the court below. For instance, it is not ordinarily a matter of inquiry whether a distillery can be “successfully or profitably operated.” The law does not require an applicant to offer, or meet, proof in regard to such a matter.

While adhering to our decision in Lauck’s Appeal, supra, that case and the one in hand should be considered as resting on their own facts.

The order of the court below is affirmed at the costs of the appellant.

Reeder, Orlady and Smith, JJ., dissent from conclusion reached by the majority of the court.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    Moyer v. Phillips, Appellant.

      Practice, C. P. — New trial — Appeals—Paper-books—Quashing appeal.

      1. When on application for a new trial the court below, on a review of the whole case, concludes, in the exercise of its judicial discretion, to let the verdict stand as the judgment of the court, nothing but a manifest abuse of this discretion will justify the appellate court in disturbing the conclusion.
    2. The power of the appellate court to grant a new trial is exceptional in character and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied.
    3. An appeal will be quashed when the reasons upon which a motion for a new trial were based are not printed in the appellant’s paper-book, when no exception was allowed to the refusal of a new trial, and when evidence was not certified by the trial judge in compliance with rule VI,
    Argued May 11, 1909.
    Appeal, No. 29, April T., 1909, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1906, No. 145, on verdict for plaintiff in case of W. L. Moyer v. John J. Phillips.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Assumpsit to recover a balance alleged to be due on a building contract. Before Holt, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in refusing a new trial.

      W. M. Potter, for appellant.

      J. Frank Reed, for appellee.
    July 14, 1909:
   Per Curiam

When on application for a new trial the court below, on a review of the whole case, concludes, in the exercise of its judicial discretion, to let the verdict stand as the judgment of the court, nothing but a manifest abuse of this discretion will justify the appellate court in disturbing the conclusion: Reno v. Shallenberger, 8 Pa. Superior Ct. 436; Halahan v. Cassidy, 12 Pa. Superior Ct. 227. The power of the appellate court to grant a new trial is exceptional in character and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied: Schenkel v. Pittsburg, etc., Trac. Co., 194 Pa. 182, Neff v. Penna. R. R. Co., 202 Pa. 371. It is needless to multiply authorities in support of propositions so well settled. The argument addressed to us by appellant’s counsel has not convinced us that there was such manifest abuse of discretion as would justify us in interfering. But, apart from this consideration, the appeal must be dismissed. The reasons upon which the motion for a new trial was based, if any were filed in the court below, are not printed in the appellant’s paper-book. Nor does it appear in the assignment of error or elsewhere in the paper-book that an exception was taken to the action of the court, Moreover, the paper-book fails to show that what is alleged to have been the evidence adduced at the trial has been certified by the trial judge either in the manner prescribed by rule VI, or by the statute. And, upon examination of the record itself, we find that it was not so certified. It was absolutely essential that this should be done in order to bring into review the action of the court here assigned for error.

The appeal is quashed at the costs of the appellant.


author: Beaver, J.,

text:
    Sollinger’s Estate
    (No. 1).

      Parent and child — Illegitimates—Legitimation by marriage — Cohabitation — Act of May 14,1857. P, L. 507-
    1- Where a child is born out of lawful wedlock, the mere fact that the parents were subsequently duly married, will not legitimate such a child, if the marriage was not followed by cohabitation.
    2, The object of the Act of May 14, 1857, P. L. 507, was intended not only to legitimate offspring otherwise illegitimate but to establish the family relation, so that the public would be relieved from the burden of the care of children for whom no legitimate caretakers had been provided.
    Argued April 27, 1909.
    Appeal, No. 177, April T., 1909, by Frank Sollinger, from decree of O. C. Allegheny Co., May T., 1908, No. 99, dismissing exceptions to adjudication in Estate of Mary Sollinger, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions .to adjudication.

      Daniel Harrison, for appellant, cited:
    McConnell’s App., 97 Pa. 31; Barnett v. Kimmell, 35 Pa. 13.
    J, M. Nevin and J. M. Morrison, for appellee, cited:
    Yardley’s Est., 75 Pa. 207.
    July 14, 1909:
   Opinion by

Beaver, J.,

The appellant, confessedly born out of wedlock, sought a share in the distribution of the estate of Mary Sollinger, a sister of his reputed father. He claims to be legitimated under the provisions of the Act of May 14, 1857, P. L. 507, which are as follows: “That in any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents."

The adjudicating judge found as a matter of fact, upon abundant evidence, that the father and mother of the appellant were duly married subsequent to his birth, the certificate of marriage being produced and the testimony of witnesses who were present at the ceremony being taken with much particularity. The court, however, also finds, upon testimony quite as voluminous and exact, that the parties to this marriage ceremony never cohabited thereafter and the court reaches the legal conclusion, based upon the act of assembly, that the mere marriage ceremony was not of itself sufficient to entitle the appellant to share in the estate of the sister of his father, which was in the hands of the court for distribution.

The force of the findings of fact by the adjudicating judge, affirmed by the court in banc, is practically admitted, but it is argued for the appellant that the provision in the Act of May 14, 1857, P. L. 507, which provides for cohabitation of those who shall enter the marriage relation for the purpose of legitimating their offspring is directory and not mandatory and that the act is to be liberally construed in favor of those claiming the benefit of its provisions.

The provisions of the act are very simple. They are embraced within a single sentence. Precisely the same words which require wedlock require cohabitation. They cannot be separated, and the one is as essential to the legal attainment of the object in view as the other. The reasons for the law are obvious. It was intended not only to legitimate offspring otherwise illegitimate but to establish the family relation, so that the public would be relieved from the burden of the care of children for whom no legitimate caretakers had been provided.

No question is raised as to the fact of the birth of the appellant prior to the act of assembly referred to, for the reason that, by the Act of April 21,1858, P. L. 413, it was provided that the former act “shall be taken to apply to all cases within the terms of that act prior to its date, as well as those subsequent thereto: Provided, That no estate already vested shall be divested by this act.”

The testimony shows that the marriage in this case was designed to avoid a threatened prosecution and the obligation growing out of the support of a bastard child. It is clear to our mind that the reason for the act contemplated no such result, and hence, in order to avoid it, the necessity for cohabitation.

The establishment of the family relation was made an essential element of the act, in order to reach the beneficent results for the unfortunate children and society contemplated by its provisions. The facts having been found upon abundant evidence, we think the conclusion reached by the orphans’ court was correct.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Sollinger’s Estate
    (No. 2).
    Argued April 27, 1909.
    Appeal, No. 154, April T., 1909, by Susie I. Wylie, from decree of O. C. Allegheny Co., May T., 1908, No. 99, dismissing exceptions to adjudication in Estate of Mary Sollinger, deceased. ■
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.

      Errors assigned were in dismissing exceptions to adjudication.

      John S. Ferguson, with him John F. Calhoun, for appellants.

      J. M. Nevin, with him J. M. Morrison, for appellee.

      July 14, 1909:
   Opinion by

Beaver, J.,

In Sollinger’s Estate, ante. p. 3, we held that the marriage of Andrew Sollinger and Mary Maxwell, December 23, 1848, although legally performed and valid as a marriage, did not legitimate their previous offspring, born out of wedlock, because of their failure to cohabit subsequently to the marriage.

Several years subsequent to the marriage, Andrew Sollinger married Louise Bean, by whom he had two children, one of whom is the present appellant. He died in 1890. His first wife, Mary Maxwell, with whom he had never cohabited, also remarried and died in 1908.

It was also shown by the evidence and found as a fact that, although Andrew Sollinger and his wife, Mary Maxwell, lived all of their lives either in Allegheny county or Westmoreland county, Pennsylvania, certificates from the records of the court of common pleas of each county being introduced for that purpose, neither of them had applied for, nor been decreed, a divorce from the bonds of their first marriage.

That being the case, as found by the adjudicating judge of the court below and affirmed by the orphans’ court in banc, based upon abundant evidence, we feel bound by the conclusion reached by the court that the present appellant had not inheritable blood and, therefore, could not share in the estate of Mary Sollinger, the decedent, the sister of her father, which was in the hands of the court for distribution. The distribution made by the orphans’ court, as excepted to in the fourth assignment of error, is, therefore, confirmed.

This practically disposes of the case, and the assignments of error are all overruled.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Sollinger’s Estate
    (No. 3).
    Argued April 27, 1909.
    Appeal, No. 154, April T., 1909, by Annie B. Stevens, from decree of O. C. Allegheny Co., May T., 1908, No. 99, dismissing exceptions to adjudication in Estate of Mary Sollinger, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    July 14, 1909:
   Opinion by

Beaver, J.,

This is an appeal from the decree of the orphans’ court of Allegheny county, from which the appellant’s sister, Susie I. Wylie, also appealed in No. 154 of April Term, 1909, in which an opinion has this day been filed, ante, p. 5.

But a single paper-book was prepared, the assignments of error are similar in all respects and the cases were argued together.

For the reasons given in Sollinger’s Estate (No. 2), ante, p. 5, we reach a like conclusion.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Rice, P. J.,

text:
    Foehr v. New York Short Line Railroad Company, Appellant.

      Negligence — Trespass—Obstruction of private road — Bridge—Railroad —Evidence—Question for jury.

    1. In an action of trespass against a railroad company to recover for the obstruction of a private road by the alleged construction thereon of a permanent pier of a railroad bridge, the case is for the jury where the testimony of the plaintiff, although somewhat uncertain, was in effect that such a pier encroached on his right of way, and this testimony is corroborated by another witness who testified more clearly to the same fact. In such a case a verdict and judgment for the plaintiff will be sustained although the appellate court may deem that the evidence adduced by the defendant was more satisfactory and convincing than that adduced by the plaintiff.

      Practice, C. P. — Trial—Pleading—Review—Negligence—Obstruction of private road.

    2. After a trial judge has submitted a question to a jury 'from the standpoint from which both parties to the issue manifestly have tried it, the one against whom the verdict is rendered should not- ordinarily be permitted on appeal to question the correctness of the submission, except in cases where manifest injustice results from it.
    3. Where a case is tried by both parties on the theory that a particular fact is a material and relevant fact, although not mentioned in the statement of claim, the appellate court will not reverse a judgment on a verdict in favor of one of the parties, because the trial judge submitted to the jury the evidence as to such fact.
    4. Where a landowner claims in an action of trespass against a railroad company damages for injuries to a private road, and at the trial introduces evidence not only as to temporary obstruction of the road during the construction of a bridge, but also evidence to the effect that a pier of the bridge was built upon a portion of the right of way, evidence as to the construction of the pier is a relevant fact, although not mentioned in the statement of claim, because it materially aids the jury in determining the proximity and extent of the encroachment upon and obstruction of the road by the other branches of the work incidental to the construction of the bridge, including the excavation for the pier, the erection of the false work and the like.

      Negligence — Obstruction of private road — Independent contractor — Trespass — ■Evidence.
    5. Where an act which causes an injury is one which the contractor was employed to do, and the injury results not from the manner of doing the work, but from the doing of it at all, the employer is liable for the acts of his independent contractor.
    6. Where a railroad company lets out a contract for the construction of a bridge, but reserves to itself the right to supervise the construction by its chief engineer, who is given authority to direct the work as it progresses, to make any alterations, and to demand that the contractor’s employees should be discharged under certain circumstances, and the work is actually carried out under the chief engineer’s direction, the railroad company is responsible for any temporary or permanent obstruction of a private way resulting from the chief engineer’s direction, and necessarily involved in the construction of the bridge.
    7. In such a case the declarations of the contractor as to the removal of the obstructions and the admissions of the plaintiff’s tenant are inadmissible in evidence.

      Negligence — Obstruction of highway — Damages.
    8. In an action by a landowner against a railroad company for an obstruction of a private road, and the consequent inability of the plaintiff to market more than one-half of his crops, if the defendant offers evidence that the plaintiff had access to the public highway by another road, and this is denied by the plaintiff, the question of fact arising from such evidence is for the jury.
    9. In such a case the plaintiff testified that he had but two market days a week for his vegetables which were chiefly perishable; that owing to the distance he could make but one trip on each of these days; and that owing to the narrowing of his roadway by the obstruction, he was unable to use his large wagon and two horses to haul his vegetables to market. He admitted, however, that he could and did use a small wagon drawn by one horse and never was prevented from getting out with his load. There was no evidence that he tried to hire an additional small wagon, or that he had not the means to do so, or that he made any effort to sell the crops he could not haul to another who could haul them. Held, that the evidence was not sufficient to sustain a finding by the jury, that he could not have marketed his entire crops by the exercise of reasonable diligence, and that therefore evidence of the value of the crops that went to waste was not admissible.
    10. Where a recovery is allowed for the loss of anticipated profits as an element or measure of damages, such profits must be susceptible of accurate estimation; they must not be speculative, contingent or uncertain, and the loss of such profits must be the proximate result of the wrong.
    11. It is incumbent in every case upon an injured party to do whatever he reasonably can to lessen the injury. He cannot stand idly by and permit the loss to increase, and-then hold the wrongdoer liable for the loss which he might have prevented by reasonable exertion and reasonable expense.
    Argued Oct. 14, 1908.
    Appeal, No. 1, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1906, No. 931, on verdict for plaintiff in case of William Foehr v. New York Short Line Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries alleged to have been sustained by the obstruction of a private road by reason of the building of a railroad bridge. Before Kinsey, J.
    At the trial when plaintiff was on the stand he was asked this question:
    “Q. How much of your produce were you able to get out in that summer compared with the total bulk?”
    Mr. Lamb: I object on the ground that although he has shown that he could not get out with a heavy wagon he has also shown that he could get out with the light wagon.
    Defendant's objection overruled. Exception for defendant. [1]
    Mr. Hepburn: “ Q. How much of your produce were you able to get out in that summer compared with the total bulk? A. Why, I could only get out about half, sometimes not that, because I could not get through with my big truck wagon to haul my loads that I wanted to haul to the city. Q. Now, what was the produce you could not get out? A. That was hay. Q. How much of that were you unable to get out, how much hay? A: Well, I had about twenty or twenty-one ton; that is, I count on the sand being so deep and I had to have leaders every time to pull the guts out to get out, and I just stopped hauling because it did not pay me to haul it out, and I got away with about twelve ton, and seven or eight ton I had to leave there. Q. What became of that seven or eight tons? A. Well, some of it molded and the roof was bad and it got bad and I lost some of it. Q. How much did you lose? A. Well, about four ton. Q. About four tons? A. Yes, sir. Q. And its value was how much a ton?”
    Objected to by counsel for defendant.
    Mr. Lamb: To save my continual objections, I think if your honor will allow me — you see the evident purpose is to show how many crops he was unable to get out and what he would have obtained for these crops, so if your honor will allow me to enter a general objection to this line of questioning it will save my objections.
    The Court: Enter a general objection by counsel for the defendant to this line of questioning. Also his objection overruled and exception for the defendant. [2]
    Mr. Lamb: If the court please, I move to strike out the testimony of Mr. Foehr so far as it relates to the quantity of crops that he lost and the prices that he would have obtained for them had he sold them, on the ground that that is not the measure of damages, and that it has been shown by his own testimony that he could have gotten out through that railroad with a lighter wagon.

      The Court: Just make your reason a little clearer, will you, counsel?
    Mr. Lamb: I said that the measure of damage in a case of this kind, supposing that his road had been obstructed, would have been the cost of removing such an obstruction or if he could have used it in another way as he stated before with a lighter wagon, would have been the expense of hiring another wagon so that he could have used two and carried the same quantity of truck to market that he said he was deprived of, because he could not carry it in a particular kind of wagon. The rule of law is, that a man must minimize his damage. He must do that. He can minimize his damages and he cannot sit down and recover here for one-half of the crop which he said himself he could not use, because he could not get through with the market wagon, but he did get through there with an ordinary wagon, and so, I say, it is an improper measure of damages when he is allowed to put in evidence not the extra expense to which he was put to, but the loss of crops which he did not take to market.
    The Court: In cross-examination, he replied to your questions that he could only take — or at least it was his cross-examination in chief, first he could only get half of his crops out by reason of the size of the wagon that he was obliged to use on account of obstructions in the roadway. In cross-examination upon that statement he said to you when you asked him why, then, he did not engage another wagon of the same size, so as to take the other half, he was prevented from taking out, he said he was unable to get such a wagon, and you asked him why he did not hire, as I recollect the testimony, another wagon, and he said he could not hire “none.” That is the way he put it as I remember that, “none.” Now, isn’t that a question for this jury to pass on, whether he was derelict in his effort to reduce these damages. Of course, as a principle of law, and I will so say to the jury, he was bound to do all that was possible to avoid and lessen these damages, everything in reason. There is no question about that. That is a very simple principle of law in this case of which there can be no question. The question will come whether or not he could have done something to have saved the crop that was rotting in the ground. I shall permit the whole case on the evidence to go to the jury. I refuse your motion to strike out. Exception for defendant. [3]
    Defendant presented these points:
    1. The evidence in this case shows that the plaintiff was granted by deed the use of a roadway as then laid out about fifty feet in width leading from his land to the Krewstown road. That where the bridge was erected over the defendant's railroad, the roadway was along the northerly side of the Penny-pack creek, the only visible indication of a roadway at that point being a wagon road of about ten or twelve feet in width; the southerly side of this wagon road being about five or six feet from an old stone wall along the creek. The said roadway being of varying widths at other points. Where there are material and visible boundaries of the roadway on the ground they will control in such a grant as this over the width in feet mentioned in the deed. Answer: Portions of this point I would affirm, but as it is drawn here it involves too many questions of fact which belong exclusively to you for judgment, and as a whole I refuse it. [4]
    5. There is no evidence in this case from which the jury can find that any part of the permanent structure of the pier is built upon the traveled roadway, the use of which was granted to the defendant. Answer: Refused; that is a fact, for you, gentlemen. [5]
    7. The evidence in this case shows that the bridge over the road in question was constructed for the defendant partly by the Smith Construction Company and partly by H. S. Kerbaugh, Incorporated, under certain contracts, and the specifications therein set out, under the supervision of the engineers of the defendant company; the said contracts providing that the contractors should be responsible for any damages that might be done by them during the performance of the work to the property adjacent thereto in consequence of their unskillfulness or negligence, and that whenever any public or private roads should be interfered with the contractor should keep a temporary road, during such interference, at all times unobstructed and safe for travel. Under the terms of these contracts the defendant company is not responsible for any wrongful. acts of the contractors, or for any obstruction of plaintiff’s roadway by them during the construction of the said bridge caused by the manner in which they did the said work. Answer: That I refuse. The chief engineer of the defendant company was there supervising the whole of this work. [6]
    8. Because of the contracts offered in evidence the defendants are not responsible for the acts of the contractors in depositing dirt, stones, or material in the right of way claimed by the plaintiff, or for allowing engines or machinery to remain thereon. Answer: Refused. [7]
    9. Even if the jury should find that there has been at times unreasonable obstructions of the plaintiff’s roadway for which the defendants are responsible, he can only recover nominal damages therefor; unless he shows an actual loss resulting to him by reason of these obstructions; and then only to the amount of such actual loss shown by the evidence. This is not a case for the imposition of exemplary or vindictive damages. Answer: Refused. [8]
    13. Under all the evidence in this cause your verdict should be for the defendant. Answer: The last point I decline to read and refuse. [9]
    Verdict and judgment for plaintiff for $1,100. Defendant appealed.

      Errors assigned were (1-3, 10) rulings on evidence, quoting the bill of exceptions; (4-9) above instructions, quoting them, and (11) in overruling defendant’s motion for judgment non obstante veredicto.

      John G. Lamb, for appellant.
    Under this evidence it was clearly error to leave to the jury the question whether any portion of the pier was upon the traveled roadway. That it might have been within the fifty feet mentioned in the grant was not material: Stevenson v. Stewart, 7 Phila. 293.
    As the space left for the use of the appellee for the passage of wagons while the false work and temporary trestle were there, was twenty-five feet wide, and twenty feet high for sixteen feet in the center, and twelve feet high at the sides, it is idle to contend that a wagon could not get through. The appellee himself states that six or seven feet is sufficient on a straight road.
    It is only for an unreasonable interference in these respects that a claimant can recover. The use of the roadway for free and unobstructed passage was the same use that the public is entitled to on its highways.
    It is submitted that even assuming a right to recover, the court below was clearly wrong as to the measure of damages.
    For an injurious trespass, the measure of damages is the cost of remedying the injury, unless that equals or exceeds the value of the thing injured, when such value becomes the measure: Lentz v. Carnegie Bros. & Co., 145 Pa. 612; Robb v. Carnegie Bros. & Co., 145 Pa. 324; Mellick v. R. R. Co., 203 Pa. 457; Irwin v. Nolde, 164 Pa. 205; Taylor v. Canton Twp., 30 Pa. Superior Ct. 305.
    Moreover, it was the duty of the appellee to do what he could to minimize his damages.

      Fred Taylor Pusey, with him C. J. Hepburn and Wendell P. Bowman, for appellee.
    Defendant was a trespasser: Keil v. Gas Co., 131 Pa. 466; Railroad Co. v. Cooper, 105 Pa. 239; Gilmore v. Pittsburg, etc., R. R. Co., 104 Pa. 275; Justice v. Railroad Co., 87 Pa. 28; Dimmick v. Brodhead, 75 Pa. 464; Union Pet. Co. v. Bliven Pet. Co., 72 Pa. 173; Hall v. Mc-Caughey, 51 Pa. 43; Williams v. Esling, 4 Pa. 486.
    Defendant could not escape liability by contract: McCloskey v. Powell, 138 Pa. 383; Reynolds v. Braithwaite, 131 Pa. 416.
    A person or corporation on whom positive duties are im- ' posed by law, cannot avoid liability for injury resulting from failure to perform such duties, by employing a contractor for the purpose; nor, in such a case, is the fact that the injuries resulted from the contractor’s negligence a defense: Wallace v. New Castle & Shenango R. R. Co., 11 Pa. C. C. Rep. 347; Minnick v. Ry. Co., 203 Pa. 632; McNamee v. Hunt, 87 Fed. Repr. 298; Gray v. Pullen, 5 Best & Smith, 970; Robbins v. Chicago, 71 U. S. 657.
    The defendant is liable for the acts of the contractor incidental to his contract. The work was not done by independent contractors. The defendant both reserved in its contracts, and also actually exercised the right to control and direct the work, not only as to its results, but as to the manner of performing it as well. The evidence submitted supports this contention: Sadler v. Henlock, 4 Ellis & Blackburn, 570; Congregation v. Smith, 163 Pa. 561.
    So-called “profits” are a proper measure of damage: St. John v. N. Y., 6 Duer, 315; Park v. Ry. Co., 43 Iowa, 636; Francis v. Schoellkopf, 53 N. Y. 152; Stetson v. Faxon, 36 Mass. 147; R. R. Co. v. Capps, 67 Ill. 607; Terre Haute v. Hudnut, 112 Ind. 542; Chandler v. Allison, 10 Mich. 460; La Cour v. N. Y., 3 Duer, 406; Chapman v. Kirby, 49 Ill. 211; U. S. v. Behan, 110 U. S. 338; French v. Lumber Co., 145 Mass. 261.
    It was proper to admit all evidence showing the circumstances as a basis for estimating the damage: Simmons v. Brown, 5 R. I. 299; White v. Morseley, 25 Mass. 356; Bucknam v. Nash, 12 Me. 474; St. John v. Mayor, 6 Duer, 315; Park v. R. R. Co., 43 Iowa, 636; Shafer v. Wilson, 44 Md. 268; Stetson v. Faxon, 36 Mass. 147; R. R. Co. v. Capps, 67 Ill. 607.
    July 14, 1909:
   Opinion by

Rice, P. J.,

The plaintiff’s right of way, which he claims was the only available way he had for hauling the products of his farm to the public highway and thence to market, was derived by grant from Clara Murray of “the free use and privilege of a roadway as now laid out about fifty feet wide between and from the farm land of said William Foehr,” beginning at the plaintiff’s land at a point on the north side of Pennypack creek, “thence up the said creek the several courses on the brink thereof” to a certain mill ?ace and thence “up the several courses thereof” to the public highway known as the Krewstown road. This private road had been used by the owners and occupiers of the plaintiff’s farm for a number of years prior to his purchase. Several years after he became owner of the farm and received the grant above referred to, the defendant company acquired title to the Murray farm over which the private road was laid, and constructed a railroad and a bridge therefor which crossed Penny-pack creek and the private road. The plaintiff brought this action to recover damages for alleged obstructions of his right of way, and on the trial claimed that part of the permanent pier encroaches thereon; that part of the temporary trestle and other temporary structures were erected and maintained thereon and materially obstructed it; and that it was further obstructed by the temporary deposit thereon of sand, lumber, stone and other materials used in the construction of the bridge.

We cannot agree with the defendant’s counsel in his contention that there was no evidence that any part of the permanent pier of the railroad bridge was built upon the traveled roadway, the use of which was granted to the plaintiff. Throughout his testimony the plaintiff persisted in his claim that the pier encroaches somewhat upon his right of way. It is true, some expressions in his testimony upon that subject, taken by themselves, tend to show that this claim was based on his erroneous supposition that irrespective of the width to which the roadway was actually laid out, as indicated by the travel and other marks on the ground, his grant gave him a right of way over the entire strip of ground fifty feet wide along the brink of the creek, yet the court would scarcely have been warranted in charging the jury that his testimony taken as a whole would not support a finding that the pier encroaches upon the roadway as actually laid out and existing at the time of the grant to him. Furthermore, that allegation of fact does not rest on his unsatisfactory testimony alone. Another witness testified moré clearly that it encroaches on the traveled roadway about five or six feet, as near as he could judge. The question was one of fact, and although the evidence adduced by the defendant seems to us more satisfactory and convincing than that adduced by the plaintiff, it was the province of the jury to decide it under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if it should deem the verdict contrary to the weight of the evidence: Reel v. Elder, 62 Pa. 308; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641. The fourth and fifth assignments of error are overruled.

The objection that the fact above considered was not relevant under the pleadings, because no mention is made in the statement of claim of the encroachment of the pier, was not raised in the court below, so far as the record shows, and is not distinctly raised here by any assignment of error. Moreover, a perusal of the defendant’s points and the report of the trial shows very clearly, we think, that the case was tried on the theory that it was a material and relevant fact. The defendant not only did not object to the evidence upon the subject adduced by the plaintiff, but on its own part introduced much evidence upon the same subject. Its counsel did not specifically request instructions to the jury that there could be no recovery on the ground of the encroachment of the pier, if the jury should find that fact, but did request the court to charge that if the jury found that fact, the plaintiff could only recover for the actual loss shown by him to have been caused by the encroachment from the time it was placed there to the date of bringing suit. The learned judge affirmed the point, and could not have gone further without being more zealous than counsel. He might well have inferred that the defendant deemed the statement of claim broad enough to sustain recovery for en-. croachment of the pier, or did not desire to raise the technical objection that it was not. After a trial judge has submitted a question to a jury from the standpoint from which both parties to the issue manifestly have tried it, the one against whom the verdict is rendered should not ordinarily be permitted on appeal to question the correctness of the submission, except in cases where manifest injustice results from it: Carpenter v. Lancaster, 212 Pa. 581. See also Hartley v. Decker, 89 Pa. 470; Taylor v. Sattler, 6 Pa. Superior Ct. 229.

But apart from the question of the sufficiency of the declaration to sustain a recovery of nominal or actual damage the encroachment of the pier may have caused, the plaintiff’s counsel are right in saying that it was a relevant fact, because it would materially aid the jury in determining the proximity and extent of the encroachment upon and obstruction of the road by the other branches of the work incidental to the construction of the bridge, including the excavation for the pier, the erection of the false work and the like.

The next question to be considered is as to the applicability of the rule relative to the immunity of an employer from responsibility for the acts of his independent contractor. The bridge was constructed for the defendant by certain construction companies under written contracts, and the court was requested to charge that under the terms of these contracts the defendant was not responsible for any obstruction of plaintiff’s highway by the contractors during the construction of the bridge, caused by the manner in which they did the work, or, as expressed in another point, for the acts of the contractors in depositing dirt, stone or materials in the right of way claimed by the plaintiff, or for allowing engines or machinery to remain thereon. The refusal of these points is the subject of the sixth and seventh assignments of error. Wherever the contract prescribes the manner in which the work is to be done, or wherever the building or other structure contracted for cannot be erected at the place designated without actionable injury to the property of third persons, the other party to the contract is responsible for the acts of the contractor, thus injurious to others, which compliance with the provisions of the contract renders necessary. The general proposition, which scarcely needs the citation of decisions for its support, has been thus stated: “Where the act which causes the injury is one which the contractor was employed to do and the injury results, not from the manner of doing the work but from the doing of it at all, the employer is liable for the acts of his independent contractor: ” 26 Cyc. of Law & Proc. 1557. The subject is elaborately treated in the notes to Thomas v. Harrington, 72 N. H. 45; s. c., 65 L. R. A. 742. Having regard to sound principle, the saíne rule must be held to apply where the injury results from the doing of the work in the manner expressed in the contract, or directed by the employer or by one acting for him who has authority under the contract to direct it. In First Presbyterian Congregation v. Smith, 163 Pa. 561, Mr. Justice Dean said: “All the authorities cited by appellants, determining the liability of an independent contractor, are to the effect that if the power to direct is only as to the results of the work, without any control over the manner of performing it, the liability of the contractor remains. But this contract reserved far larger powers than mere direction as to results; as to many items of the specifications, the right to direct the manner in which the work should be done was retained. In very few of the many specifications, was the method of carrying them out left to the skill and judgment of the contractors. Even the right to discharge incompetent workmen was reserved to the city engineer.” As will be seen later, this description of the nature and extent of the right to control the doing of the work might well have been written for the present case. In the recent case of Sipe v. Penna. R. R. Co., 222 Pa. 400, it was held that in an action against a railroad company to recover damages for the alleged negligent deposit of debris in plaintiff's dam, resulting from the construction of bridges in the stream above the dam, the defendant cannot claim immunity on the ground that the construction of the bridges had been done by an independent contractor, where it appears that the company had accepted the work of the contractor with full knowledge of the condition in which he had left the bed and banks of the stream. While the decision was put upon the ground thus stated, there is the following significant language in the opinion of Mr. Justice Potter relative to the effect of the control retained by the defendant upon the question of its responsibility for the negligence of the contractor : “The negligence consisted in placing the loose material in or near the stream where it would in the natural course of events be washed down by the ordinary flow of the water, aggravated no doubt by floods or high water. In the present instance the work was entered upon and prosecuted by the defendant company under the right of eminent domain, and its agreement with the contractor retained the right of supervision in its own engineer, with power to annul and forfeit the contract at his discretion if the work was not being done to his satisfaction under the plans and specifications of the defendant company. If it were necessary to rest the case upon that point, we would be inclined to hold that the control retained by the defendant company over the manner of performing the work was so close and complete as to render it responsible.” Reynolds v. Braithwaite, 131 Pa. 416, is also a pertinent case. And Washington Natural Gas Co. v. Wilkinson, 1 Sadl. 263; Allen v. Willard, 57 Pa. 374 at p. 381, and Stork v. Philadelphia, 199 Pa. 462, may be appropriately cited. The control retained by the defendant in the contract involved in the present case was very extensive, but before reviewing its provisions in that regard it is worthy of note that owing to its ownership of the land where the alleged injurious acts were committed the defendant had absolute control of it when the contract was made, subject to the plaintiff’s right of way. The contract provided, inter alia, that the right of way and use of such lands as were necessary to enable the contractor to conform to the requirements of the specifications should be furnished for the construction of the railway by the defendant; that the work should be executed under the direction of the defendant’s chief engineer who should designate the portion of the line upon which work should be begun and performed, and should, at all proper times, furnish plans, measurements, stakes and “directions for doing the work;” that the contractor should discharge any foreman or employee who should, in the judgment of the engineer, be unfaithful, unskillful or remiss in the performance of his work; that the chief engineer should have the right to make any alterations that should be determined upon by him as necessary or desirable in the location, line, grade, plan, form or dimensions of the work; that the trestle work, which included all wooden structures, commonly used as substitutes for abutments and piers and for farm passes, etc., should be built according to the plans furnished and directions given by him; that the defendant could suspend or terminate the work for reasons not specified in the contract, without liability to the contractor for consequential damages, or anticipated damages, or damages of any kind resulting from such suspension or termination; that all questions, differences or controversies which should arise between the parties, in any way whatever pertaining to or connected with the work, should be referred to the chief engineer, and his decision should be final and conclusive; that whenever any work embraced in the contract should in any manner interfere with ' a public or private traveled road, the contractor should keep a temporary roadway, during such interference, at all times unobstructed and safe for travel, and any damages which should result from failure so to do might be settled by the chief engineer and held until paid by the contractor. We do not say that the reservation to the employer of the right to discharge the contractor at any time, or of the right to demand the discharge of the contractor’s servants under certain circumstances, will of itself prevent the creation of the relationship of independent contractor; it is, however, an important fact to be considered in connection with others in determining that question, as the above quotations from Pennsylvania cases clearly show. But apart from the reservation to the defendant of these rights, the other provisions to which we have referred reserved to the defendant far larger powers than mere direction as to results; in very many particulars the right to direct the manner in which the work should be done was retained. Not only so, but the evidence adduced by the plaintiff shows that the defendant’s chief engineer was present almost daily giving directions as to the manner of performing the work, and particularly as to the location of the temporary trestle and false work, the excavating, and even in some instances the deposit of materials. His own testimony bears this out. In short, the defendant not only retained the right to control the work in many of its details, but actually exercised control in some, if not all, of the matters from which the injuries complained of arose. It is not necessary in this case to decide the question whether under such a contract as this the principal would be responsible for every trespass or negligent act of the contractor, but certainly for such injurious acts complained of in this case as were performed pursuant to the chief engineer’s direction, and for such unreasonable occupation and obstruction of the plaintiff’s right of way, temporary or permanent, as were necessarily involved in the performance of the contract, the defendant was responsible. It follows that the instructions requested by the defendant in its seventh and eighth points were too broad. The sixth and seventh assignments of error are overruled.

From what has been said it follows also, that the ninth and thirteenth assignments, in which complaint is made of the refusal of the defendant’s point for binding instructions and motion for judgment non obstante, must be overruled. The eighth assignment is dismissed for the reason that it mistakenly alleges the refusal of the defendant’s ninth point, whereas the record shows that the point as modified by its counsel was affirmed.

The admission in evidence of the letter of November 17,1904, would not have helped the defendant’s case except by bringing before the jury the hearsay declaration of the contractor as to the removal of the obstructions and as to the admission of the plaintiff’s tenant, and clearly the defendant was not entitled to have this brought into the case. The tenth assignment is overruled.

The remaining assignments to be considered are the first, second and third. They relate, principally, to the admission of and refusal to strike out evidence offered by the plaintiff to show the pecuniary loss he suffered in consequence of his roadway being so obstructed that he could not get more than one-half of certain crops, principally perishable vegetables, to market, and was compelled to permit them to go to waste. One of the objections urged against the admission of this evidence is that he had access to the highway by another road. But this allegation was disputed by the plaintiff and the question of fact arising upon the evidence was properly submitted to the jury. The other objection is that the evidence would not sustain a finding by the jury that he could not have marketed his entire crops by the exercise of reasonable diligence and therefore evidence of the value of the crops that went to waste was not admissible. We are of opinion that this objection is well taken. In any view of the general subject of the loss of anticipated profits as an element or measure of damages, this seems to be clear, that in the exceptional cases where recovery therefor is allowed, the profits must be susceptible of accurate estimation, they must not be speculative, contingent or uncertain and the loss of such profits must be the proximate result of the wrong: Coyle v. Pittsburg, Bessemer, etc., R. R. Co., 18 Pa. Superior Ct. 235. See also McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. 493. Another principle to be kept in view is, that it is incumbent in every case upon an injured party to do whatever he reasonably can to lessen the injury: Chamberlin v. Morgan, 68 Pa. 168; Taylor v. Canton Twp., 30 Pa. Superior Ct. 305. He cannot stand idly by and permit the loss to increase, and then hold the wrongdoer liable for the loss which he might have prevented by reasonable exertion, and reasonable expense: 13 Cyc. of Law & Proc. 71. The plaintiff claims that he had but two market days a week; that owing to the distance he could make but one trip on each of these days; and that owing to the narrowing of his roadway at a sharp curve therein by the temporary trestle he was unable to use his large wagon and two horses to haul his vegetables to market. He says: “And by taking a double team, even two horses with a big wagon I could not make the turn without I would strike the other side of the trestle and get stuck, or my horses would get scared and back into the creek and get killed.” He admits, however, that he could and did use a small wagon drawn by one horse and never was prevented from getting out with his load. But he claims that thereby he could haul only about half as large a load as he could if it had been possible to use his large wagon, and as a consequence fully one-half of his crop of vegetables went to waste. If there were nothing further in the case, the obvious answer to this claim would be that if he had used two small wagons he could have marketed his entire crops. The only reason assigned for urging that it is not a complete answer is based on this extract from his testimony: “Q. If you had taken two light wagons you could have gone there? A. I had no two. Q. If you had hired another wagon you could have gone there with all the stuff by making two trips? A. I could not hire none.” There was no evidence that he tried to hire one, or that he had not the means to do so, or that he made any effort to sell the crops he could not haul to another who could haul them. Grant that there is every element of proof necessary to enable the jury to determine with reasonable certainty what profits the plaintiff would have made if he had marketed the crops that went to waste, did he lay sufficient grounds for the introduction of such proof? Viewing his testimony in the light of the legal principles above referred to we are constrained to hold that he did not. So far as the loss of hay is concerned, there is additional reason for holding that its value was not the measure of damages. It did not spoil as a direct consequence of the plaintiff's inability to haul it to market in the year in which it was cut and cured, but because of the leaking roof of the barn in which he stored it.

The first three assignments are sustained.

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


author: Porter, J.,

text:
    Castellucci v. Lehigh Valley Railroad Company, Appellant.

      Carriers — Common carriers — Delivery of goods — Condition of goods— Evidence.

    1. When a shipper proves that goods had been delivered to the carrier in good condition and arrived at their destination in a damaged condition, such change in condition is evidence from which a jury may be permitted to infer that the injury arose from the negligence of the carrier, unless that change in condition is one which results from the operation of a natural law inherent in the property or is of a character not reasonably giving rise to a presumption of negligence on the part of the carrier. The owner in order to obtain the benefit of this presumption must, however, prove that the goods were in good condition when delivered to the carrier; for there is no presumption in the absence of evidence, that they were in such condition.
    2. In an action to recover damages for injuries to a marble monument, it appeared that the monument weighed 3,200 pounds and was inclosed in a heavy wooden case. It was imported, and was stored for two weeks in a warehouse. It was then hauled on a truck two or three miles over the streets of a city, and delivered to the carrier. The evidence showed that the injury was caused by permitting the monument to rest upon the face and not upon the back. The shipping receipt contained the following words: “ The property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown).” Plaintiff stated that on one side of the case were words indicating the manner in which the case should be carried. These words were not in the English language. The truckman who acted as the agent of the plaintiff testified that the case was removed from the truck without turning it over, and that the side upon which it had rested while on the truck remained down when it was placed in the car. Held, (1) that the evidence was not sufficient to show that the monument was in good condition when delivered to the carrier, and (2) that no presumption arose from the terms of the shipping receipt that the property had been delivered by the plaintiff to the carrier in good condition.
    Argued Dec. 10, 1908.
    Appeal, No. 115, Oct. T., 1908, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1907, No. 27; on verdict for plaintiff in case of Antonio Castellucci v. Lehigh Valley Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries to a monument. Before Stewart, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court charged as follows:
    [Now, when it was unloaded from the American Express Company's dray on to the platform, and placed on the car of the Lehigh Valley Railroad, they gave this receipt, exhibit “No. 1,'' which has been referred to, and which reads as follows, so far as the present case is concerned: “Received,” giving the date, “ from the American Express Company the property described below in apparent good order except as noted.” “ (Contents and condition of contents of packages unknown.) ”

    Now, the testimony of Mr. Castellucci and his wife, in connection with the words that I have just quoted from this exhibit, raises a presumption that that package, and the contents of that package, was in good condition when it was received by the Lehigh Valley Railroad Company on August 4, if that is the date. I say it raises a presumption, and the presumption that it was in good condition will remain in the case until the defendant by his testimony has introduced countervailing proof which is sufficient to overcome that presumption; and whether it is overcome or not is a question for you, gentlemen of the jury, to decide.] [1]
    [That is to say, if you find that they were given to the carrier in a good condition, and that they were broken when they got to South Bethlehem in the way that the witnesses say, then there is this presumption of negligence, and that presumption of negligence remains in the case until there is countervailing proof on the part of the defendant sufficient to overcome it, and the question as to whether it is overcome is a question of fact for you, gentlemen of the jury.] [2]
    Plaintiff presented these points:
    2. If the case containing the marble cross was inspected on the wharf of the steamship company and found to be intact and properly packed, and was given by the plaintiff to a dray-man or other person for delivery to the Lehigh Valley Railroad Company, defendant, which company accepted the said case containing the marble cross, a presumption is created that the cross was intact and not broken when thus received by the defendant. Answer: If you find those facts to be as therein stated that is a correct legal proposition, and it is affirmed. [3]
    3. The accepting of said case containing marble cross by the Lehigh Valley Railroad Company, and the giving by them of a shipping receipt or bill of lading, stating that the goods were in apparent good order, creates a presumption that the cross was in good condition and not broken when thus received. Answer: That is affirmed. [4]
    4. Under the evidence in this case the burden is on the defendant company to show that the damaged condition of the statue was not due to the negligence and carelessness of the defendant or its employees. Answer: That point is affirmed. [5]
    Verdict and judgment for plaintiff for $1,353.41. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them.,

      James W. Fox, with him Edward J. Fox, for appellant.
    The plaintiff is first bound to show affirmatively the receipt of the goods in good order by the carrier. There is no presumption that the goods were in good order when received by the carrier: Mears v. R. R. Co., 56 L. R. A. 884; The Henry B. Hyde, 90 Fed. Repr, 114; The Lennox, 90 Fed. Repr. 308; Goldey v. R. R. Co., 30 Pa. 242; Navigation Co. v. Merchants’ Bank, 47 U. S. 344; Farnham v. R. R. Co., 55 Pa. 53; Steamship Co. v. Smart, 107 Pa. 492; Trexler v. Baltimore & Ohio R. R. Co., 28 Pa. Superior Ct. 198; Needy v. Western Maryland R. R. Co., 22 Pa. Superior Ct. 489.
    There could be no clearer case of a presumption upon a presumption, or an inference from an inference, than the court below permitted in this case: Eshleman v. Union Stock Yards Co., 222 Pa. 20; Philadelphia City Pass. Ry. Co. v. Henrice, 92 Pa. 431; Dettra v. Kestner, 147 Pa. 566; Welsh v. R. R. Co., 181 Pa. 461; Bube v. Weatherly Boro., 25 Pa. Superior Ct. 88.

      B. S. Taylor, for appellee.
    The bill of lading itself was prima facie evidence of the actual good condition of the statuary: Rhymer v. D., L. & W. R. R. Co., 27 Pa. Superior Ct. 345; Richards v. Doe, 100 Mass. 524; Ellis v. Willard, 9 N. Y. 529; Barrett v. Rogers, 7 Mass. 297.
    July 14, 1909:
   Opinion by

Porter, J.,

The plaintiff brought this action against the defendant carrier to recover the value of a monument, in the form of a marble cross, which was alleged to have been damaged by the carrier in transporting the same from Jersey City to South Bethlehem, and having recovered a judgment in the court below, we have this appeal by the defendant.

The shipment was made under the covenants of a bill of lading which exempted the carrier from any liability for loss occasioned by “breakage, chafing,” etc., and it is admitted that the loss occurred from the excepted causes, and that the burden was upon the plaintiff to produce evidence which would justify an inference that the agents of the defendant company had been guilty of negligence which caused the injury. The monument had come from Italy, and the plaintiff undertook to discharge the burden which was upon him by showing that he had examined the monument at the dock in Jersey City on July 17, 1906, and that it was then in good condition, that he had then directed his agents to cause it to be shipped to him at South Bethlehem, that it had been removed from the dock and remained for a time in a warehouse and had then been removed from the warehouse and, on August 2, 1906, delivered by his agent to the Lehigh Valley Railroad Company at their station in Jersey City, which company issued the shipping receipt or bill of lading under the terms of which the plaintiff was required to establish his right to recover. The plaintiff relied upon the testimony as to the condition of the monument at the dock on July 17 and the shipping receipt issued by the defendant company on August 2, 1906, as the only evidence to establish that the monument was in good condition at the date last named, when it was delivered to the carrier. Having produced this evidence the plaintiff then proved that the monument was in a damaged condition when the delivery of it was tendered to him by the carrier at the point of destination, South Bethlehem. There can be no question that the rule is that when a shipper proves that goods had been delivered to the carrier in good condition and arrived at their destination in a damaged condition, such change in condition is evidence from which a jury may be permitted to infer that the injury arose from the negligence of the carrier, unless that change in condition is one which results from the operation of a natural law inherent in the property or is of a character not reasonably giving rise to a presumption of negligence on the part of the carrier. The plaintiff in order to obtain the benefit of this presumption must, however, prove that the goods were in good condition when delivered to the carrier; for there is no presumption, in the absence of evidence, that they were in such condition.

The learned judge of the court below instructed the jury, in affirming plaintiff's second point, “If the case containing the marble cross was inspected on the wharf of the steamship company and found to be intact and properly packed, and was given by the plaintiff to a drayman or other person for delivery to the Lehigh Valley Railroad Company, which company accepted the said case containing the marble cross, a presumption is created that the cross was intact and not broken when thus received by the defendant;” and this is the subject of the third specification of error. And in that part of the general charge which is the subject of the first specification of error instructed the jury that the testimony of the plaintiff and his wife as to the condition of the monument at the dock on July 17, taken in connection with the words quoted from the shipping receipt, to wit: “Received .... the property described below in apparent good order except as noted (contents and condition of contents of packages unknown);” gave rise to a presumption that the contents, of the package were in good condition when it was received by the defendant company, on August 2, and that that presumption remained in the case until the defendant “introduced countervailing proof sufficient to overcome the presumption.” We are of opinion that the testimony of the plaintiff and his wife as to the condition existing before the monument had been taken to the warehouse and there remained two weeks and was then hauled on a truck two or three miles over the streets of the city was certainly not sufficient to show, or give rise to a presumption, that the monument was in good condition when it arrived at the station of the defendant company, in Jersey City. The testimony of the plaintiff and all the evidence in the case clearly indicates that the injury to the monument was occasioned by permitting it to rest upon the face, and not upon the back, and there is no presumption that the “drayman or other person” to whom it was by the plaintiff given handled the monument in a proper manner. The acts of the drayman were the acts of this plaintiff; he was not the agent of the defendant company. The third specification of error must be sustained.

Whether there was error in that part of the charge embraced by the first specification of error is dependent entirely upon the effect which ought to be given the shipping receipt, as evidence of the condition of the property at the time it passed into the hands of the carrier. The instrument acknowledged the receipt of “the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown);” and a description of the property is “One (1) case Cross.” The uncontradicted evidence in the case was that the cross, or monument, weighed 3,200 pounds and was inclosed in a heavy wooden case; the cross was of marble and upon one of the flat sides were two medallions upon which were chiseled in high relief artistic reproductions of the features of the plaintiff and his wife, respectively, the other side of the cross was plain and upon that side it ought to have been carried; to turn it upon its face and thus transport it would necessarily destroy the fine sculpture upon that side.' When a bill of lading acknowledges to have received the goods in apparent good condition, it is prima facie evidence that, as to all circumstances which are open to inspection and visible, the goods were in good condition; when the instrument is silent as to the contents of packages the presumption that such contents are in good condition arises. The bill in question in the present case, however, expressly declares that the contents of the package and the condition of those contents is unknown, and this is certainly not an acknowledgment that the monument which was inclosed in a heavy wooden case was then in good condition. The facts of which a bill of lading is evidence must necessarily to some extent be dependent upon the subject-matter with which it deals. A bill of lading for a case of eggs, containing the disaffirmance of knowledge of contents found in this bill, would certainly not give rise to a presumption that the eggs were fresh or that they were properly packed; nor would a shipping receipt for a case of chronometers, containing the same clause, be evidence that the instruments were properly ad j usted and regulated. The language of the court below must be considered with reference to the practically undisputed facts in this case. A heavy shipment, difficult to handle, was delivered to the carrier and it arrived at its place of destination in a damaged condition. The evidence of the plaintiff clearly established that the injury was caused by the monument having rested upon its face instead of its back; the front of the monument, inclosed in a heavy wooden case, was turned toward the floor of the car. The whole weight of the heavy cross rested upon the face sculptured in high relief upon one of the medallions, and the fine lines of the nose were destroyed, the arch of the eyebrow was impaired and the curl was taken out of the hair above the forehead. The evidence of the plaintiff clearly established that upon one side of the case only was there any indication as to which side of that case ought to have been kept upward, and when that side, owing to any circumstance, was turned down no person could tell which side of the case ought to carry the weight. Even upon the side upon which the plaintiff said there was an indication as to the manner in which the case should be carried, he stated that the words were not in the English language. A case weighing 3,200 pounds cannot be picked up and turned over like a postal card, to find out whether a shipper has delivered it wrong-side up. The shipping receipt in this case afforded no evidence that the agents of this plaintiff had delivered this case to the carrier right-side up or that it was delivered to the carrier in such a manner that its agents could tell how the property ought to be transported. The uncontradicted evidence of the truckman who acted for the agent of the plaintiff, as well as that of the employees of the carrier, was to the effect that the case was removed from the truck without turning it over, the side upon which it had rested while on the truck remained down when it was placed in the car. If the jury believed that evidence the case was not delivered in good condition, for if it remained in the same position in which it was by the agent of the plaintiff delivered, the injury to the monument was certain to ensue. This was a matter with which the shipping receipt did not deal, and as to it no presumption arose from the terms of the receipt that the property was by the plaintiff delivered in good condition. The first, fourth and fifth specifications of error are sustained.

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


text:
    Freeman’s Estate
    (No. 1).

      Will — Power of appointment — Appointment to children — Adoption of child — Invalid appointment.

    1. Where a testator gives his estate to a trustee to pay the income therefrom to his sons and daughter and “from and after the death of either of my sons or daughter and until the death of all of them to pay the income which he or she would, if living, have received to such person or persons of kin, to such son or daughter as he or she may by will have appointed, and in default of such appointment to the child or children of such son or daughter,” and one of the sons on dying appoints the income among his children, including among them an adopted child not of the kin nor blood of the donor, such appointment to the adopted child is invalid, and the adopted child will take nothing thereby; but the invalid appointment will not invalidate the other appointments to the children so as to make a complete default of appointment of all of the income. Even if there should be a total default the adopted child would not be entitled to assert any rights to a portion of the income under the alternative provision in the will of the donor, inasmuch as she is not a child of her adopted father within the meaning of the will of the latter’s father.
    2. In such a case the amount of the income invalidly appointed will be equally divided among the son’s own children.
    3. The words “kin” and “kindred” when used in a will, are limited in legal meaning, as in common use, to those related by blood.
    Argued Dec. 14, 1908.
    Appeal, No. 104, Oct. T., 1903, by Mary Anne Williamson, from decree of O. C. Phila. Co., Jan. T., 1881, No. 228, dismissing exceptions to adjudication in Estate of Henry G. Freeman, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication by Penrose, J.
    The auditing judge found, inter alia, the following facts:
    The account is of the portion of the estate of the testator, who died February 15, 1875, held under the provisions of his will, as set forth in adjudications of accounts heretofore filed, in trust for his widow, Eliza Freeman, for life, and after her death for his children, William H. Freeman, James B. Freeman, Charles D. Freeman, Chapman Freeman, Elizabeth H. Ashburner and Caroline S. Schultz, until the death of the last survivor, the provision for the children being that the income shall be paid to them “during their several and respective natural lives, into their own hands and for their own use, without any power on the part of either of them by order or otherwise to change, transfer, assign or in any manner anticipate the same so that the same shall not be liable for the debts of them, or any of them, or to levy an attachment under or upon any writ or process whatever against them, or any of them, and as to my said daughters for their several and respective use, and subject as aforesaid free from the control, debts or contracts of any husband they or either of them now have or may hereafter take. In trust from and after the death of either of my sons or daughters and until the death of all of them to pay the income which he or she would, if living, have received to such person or persons of kin to such son or daughter as he or she may by will have appointed and in default of such appointment to the child or children of such son or daughter that may then be living or the issue of any child or children of such son or daughter that may then be dead, leaving issue, in equal shares, as however that such issue shall take per stirpes only a parent's share and if there »be no children or issue of such son or daughter then such person or persons as would take from, through or under me had I lived until then and died intestate."
    U. *!> 4^ V «f» ^
    James B. Freeman, another of the sons, died, as further represented, April 5, 1907. By his will, which was admitted to probate, letters testamentary being granted to Mary Anne Williamson, E. G. Hammersly and the Real Estate Title Insurance & Trust Company, he provided, in the exercise of the power of appointment, as to his share of income given by the will of his father, the testator, that it should be paid by the Girard Trust Company, trustee, “to and among my children, including under that denomination my said adopted daughter Mary Anne Williamson, whom I have declared and hereby declare to be kin to me in the sense in which that expression is used in the will of my late father in manner following videlicet .... three-thirtieths to his daughter, Helen Brewster; three-thirtieths to his daughter, Matilda Dusezeau and three-thirtieths to his daughter, Minnie Thompson Lee, three-thirtieths to his daughter, Lena Vessillier; eight-thirtieths to 'my said adopted daughter, Mary Anne Williamson;' and eight-thirtieths to his son, Robert C. Freeman.”
    The will further provided as follows:
    “I declare that the provisions and appointments in favor of my children and their issue and representatives are hereby declared to be in full satisfaction of the whole claims competent to them and all rights according to law competent to them by through and in consequence of my death and are granted conditionally on their concurring in this my will and assisting in every way in their power to have all its provisions given full effect to and in the event of any of them being dissatisfied with the apportionment in his or her favor or in favor of any other children (including the said Mary Anne Williamson) and challenging the same or otherwise challenging the provisions of this my will in whosoever’s favor the same may be they shall be held to forfeit and renounce and discharge for themselves and their issue or representatives the provisions herein conceived in their/" favor and the appointments hereinbefore made in his, her or their favor are hereby in that event recalled and the shares which would have gone to such parties but for their so challenging the provisions hereof shall be divided among those appointees who support this my will in the same proportions as the respective shares of such supporting appointees bear toward one another in the original appointments under this my will.”
    4* 4* 4* 4* 4* 4* «!.» 4* 4* 4* u' 4* v 4> 4»
    The account shows a balance of income of $563,512.21, of which distribution has been made, as shown by the distribution account, of $560,211.84, leaving for present distribution $3,300.37, of which, as shown by the general summary for the distribution account, there is for general distribution $581.46, and for distribution among particular interests $2,718.91.
    Of the sum last mentioned ($2,718.91) the petition for distribution states as follows: “Robert C. Freeman takes as passing to him on account of his share of income under James D. Freeman’s will should the will not be disturbed as to this interest, $184.89. There has been withheld the eight-thirtieths of income bequeathed by James B. Freeman’s will to Mary Anne Williamson, pending decision of the court as to the effect of appointment to her by James B. Freeman, $739.56. There was withheld from distribution income belonging to the share of James B. Freeman, accrued to his death, pending the claim thereto of his widow, Helen C. Freeman, the sum of $196.67. Since the account was filed the widow has withdrawn her claim, and the supplemental account shows the payment of this sum to the executors of James B. Freeman ($196.67).” The petition further states that “there has been withheld from distribution one-fourth of the Charles D. Freeman share of income, which accrued since June, 1906. This is claimed on the one hand, by Anna Diamond Freeman, widow and sole legatee of Henry B. Freeman, deceased, and, on the other, by the sisters of Henry B. Freeman. A decree of this court, entered December 3, 1906, in favor of the said widow, is now sub judice in the Superior Court. See Freeman’s Estate, 15 Pa. Dist. Rep. 928. The amount of income so withheld is $1,597.79.”
    The petition submits as “the only matter in doubt requiring the consideration and decision of the court at the audit of which the trustee has been advised (other than the matters in controversy as to a fraction of the Charles D. Freeman share of income . . . . ) is that relating to the claim of Mary Anne Williamson to take eight-thirtieths of the James B. Freeman share of income, she claiming to ‘be of kin’ to him. No agreement of the children of James B. Freeman has been filed with the trustee which would make it safe for the trustee by payment to her to recognize the claim of Mary Anne Williamson, without the adjudication of the court upon the question.”
    The petition adds as follows: “the interest affected is the above eight-thirtieths of income specifically withheld, and also five-thirtieths of one-sixth or four-ninetieths of the general undistributed income shown in the account, and amounting to $581.46. The determination of the court at this audit as to the said Mary Anne Williamson claim will be controlling as to future income, and is therefore necessary for the trustee’s guidance in making future distribution.”
    Under proceedings regularly instituted in the court of common pleas No. 4, of September Term, 1892, No. 91, Mary Anne Williamson, who was then of age, was adopted by James B. Freeman, September 29, 1892.
    The auditing judge held that the appointment to the adopted daughter was invalid, but that its invalidity did not render invalid the appointment to James B. Freeman’s own children. He also held that the amount of income represented by the invalid appointment should be divided equally among the actual children of James B. Freeman.
    The exceptions to the adjudication were dismissed.

      Errors assigned were in dismissing exceptions to adjudication.

      George S. Bussell, with him George deB. Myers, for appellants.
    The word “kin” may include an adopted child: Bower v. Hafley, 85 Ky. 673; Hibbard v. Odell, 16 Wis. 663; Delano v. Bruerton, 148 Mass. 619; Lusby v. Cobb, 80 Miss. 715.
    Should the court determine that Mary Anne Williamson is not “kin” within the meaning of the will of Henry G. Freeman and the power of appointment was therefore imperfectly or defectively executed by him, the entire appointment is utterly void and distribution should be directed under the alternative provision of the donor’s will, as if the donee had not attempted to execute the power: Rogers’s Estate, 31 Pa. Superior Ct. 620.
    It might be urged that by adopting a child, the donee of the power increases the class -and that the adoption was not reasonably within the contemplation of the testator. It has been held, however, that a testator who commits the distribution of his estate to the law upon the happening of an event necessarily future, must reasonably be presumed to have contemplated the possibility of a change in the law in the meantime: Kohler’s Est., 199 Pa. 455; McGunnigle v. McKee, 77 Pa. 81; Opdyke’s App., 49 Pa. 373; Miller’s App., 52 Pa. 113; Seitzinger’s Est., 170 Pa. 538; Kohler’s Est., 199 Pa. 455.
    At the time of the vesting of the estate, to wit: at the death of James B. Freeman, Mary Anne Williamson was his child by legal adoption; she was a child “then living” and would be equally entitled to participate under the devise on failure of appointment: Johnson’s App., 88 Pa. 346; Rowan’s Est., 132 Pa. 299; Kohler’s Est., 199 Pa. 455.

      Frank P. Prichard, with him John Marshall Gest and Joseph deF. Junkin, for appellees.
    Mary Anne Williamson though adopted by James B. Freeman as his child was not of “kin” to him and therefore he had no right to appoint to her: Com. v. Nancrede, 32 Pa. 389; Com. v. Ferguson, 137 Pa. 595; Grubb’s App., 58 Pa. 55; Phillips’s Est., 17 Pa. Superior Ct. 103; Wayne’s Est., 18 Phila. 33; Withy v. Mangles, 10 Cl. & Fin. 215; Swasey v. Jacques, 144 Mass. 135.
    Nor if the appointment to her be void, can Mary Anne Williamson take under the alternative distribution directed by the will of the donor, as a “child” of James B. Freeman: Schafer v. Eneu, 54 Pa. 304.
    July 14, 1909:
   Opinion by

Porter, J.,

Henry G. Freeman died February 15, 1875, leaving a will by which the Girard Trust Company was appointed trustee of his residuary estate, the income of which was to be paid to his widow, during her life, and after her death was to be equally divided between his six children, one of whom was James B. Freeman, during their respective lives. The will contained the following clause which is material to the disposition of this case: “ In trust from and after the death of either of my sons or daughters 'and until the death of all of them, to pay the income which he or she would, if living, have received to such person or persons of kin to such son or daughter as he or she may by will have appointed and .in default of such appointment joAhejdfil^ of such son or daughter that may then be living or the issue of any child or children of such son or daughter that may then be dead, in equal shares, as however that such issue shall take per stirpes only a parent’s share and if there be no children or issue of such son or daughter then such person or persons as'would take from, through or under me had I lived until then and died intestate.” We have in this case to deal with the income of the share which James B. Freeman received during his life and concerning which he was by the will of his father vested with a power to appoint such of his own kin as he might by will designate, to receive the income of that portion until the death of the last of his brothers or sisters.

James B. Freeman died on April 5, 1907, having first made a last will and testament which was duly admitted to probate. He attempted in this will to exercise the power of appointment, conferred by the will of Henry G. Freeman, as to his share of the income, by directing that it should be paid by the trustee, “to and among my children, including under this denomination my said adopted daughter Mary Anne Williamson, whom I have declared and hereby declare to be kin to me in the sense in which that expression is used in the will of my late father in manner following, videlicet: I direct and appoint the said income to be apportioned among and paid over to my said children in the following shares and proportions, namely: three-thirtieth parts or shares to my daughter Helen, .... three-thirtieth parts or shares to my daughter Matilda, .... five-thirtieth parts or shares to my daughter Minnie Thompson Lee, .... three-thirtieth parts or shares to my daughter Lena, .... eight-thirtieth parts or shares to my adopted daughter Mary Anne Williamson; and eight-thirtieth parts or shares to my son Robert C. Freeman.” The court below held that the appointments by James B. Freeman, to his children, his actual children, were good and constituted a valid partial exercise of the appointment, but that the appointment of eight-thirtieths of the income to the adopted daughter Mary Anne Williamson, the appellant, was not authorized by the will of Henry G. Freeman and was invalid. The court entered a decree that the income be paid upon the twenty-two-thirtieths as appointed to the actual children in the will of James B. Freeman, and that the eight-thirtieths of the income invalidly appointed to the appellant be paid, under the will of Henry G. Freeman, in equal shares to the children of James B. Freeman. Mary Anne Williamson appeals from this decree.

Mary Anne Williamson, who was then over the age of twenty-one years, was adopted by James B. Freeman, on September 29, 1892, under proceedings regularly instituted in the court of common pleas No. 4 of Philadelphia county. This proceeding was in accordance with and under the authority conferred by the Act of May 9,1889, P. L. 168. Over seventeen years after the death of Henry G. Freeman his son adopted an adult woman as a daughter, under the authority of an act of assembly which was not passed until fourteen years after the will of Henry G. Freeman had taken effect. That will delegated to James B. Freeman the power to appoint the income of the estate “to such person or persons of kin,” to said James B. Freeman as he might by will appoint. Was Mary Anne Williamson of kin to James B. Freeman within the meaning of the will of Henry G. Freeman? The property is the estate of Henry G. Freeman, the only power which James B. Freeman had over it was that conferred by the will of his father, and that will expressly restricted the power to appoint to the “kin” of the donee. The description did not merely define a legal status, which would include all who held the status, but it defined a fact, and only those who can claim to be included within this definition can claim. The words “kin” and “kindred,” when used in a will, are limited in legal meaning, as in common use, to those related by blood, and do not include a husband or wife, unless accompanied by other words clearly manifesting a purpose to extend their signification: Haraden v. Larrabee, 113 Mass. 430; Swasey v. Jaques, 144 Mass. 135; Keteltas v. Keteltas, 72 N. Y. 312; Wetter v. Walker, 62 Georgia, 142. The adoption of the appellant, under the provisions of the act of 1889, invested her with all the rights of a child and heir of James B. Freeman, but it did not change the facts. She was not the actual child of James B. Freeman and was not of his blood: Edwards's Appeal, 108 Pa. 283. The intention of Henry G. Freeman must remain the controlling factor in the disposition of the income of this property, so long as the trust continues. He authorized James B. Freeman to appoint to persons within a designated class, those of his own blood, and any appointment outside that class was necessarily invalid.

The appellant contends that even if the appointment of a part of the income to her was in excess of the power of the appointer, that as this was a defective execution of the power the entire attempt of James B. Freeman to appoint was invalid, as a whole. She asserts, therefore, that the entire income of the share of the estate which had been enjoyed by James B. Freeman during his lifetime must be distributed as directed by the will of Henry G. Freeman, upon the failure of his son to make a valid appointment, and that as she is an adopted daughter of James B. Freeman she is entitled, under the will of Henry G. Freeman, to one-sixth of the income of this share. This contention is founded upon the argument that being an adopted daughter she is a child of James B. Freeman, within the meaning of the devise over in the will of Henry G. Freeman. We do not deem it necessary to consider in this appeal the question elaborately argued in the brief, as to whether there may be a valid partial exercise of a power of appointment, for no matter how that question might be determined, this appellant can take nothing. The bequest over in the will of Henry G. Freeman was to the children, the actual children of his sons and daughters, and those who are not in fact children do not meet the terms of the bequest. The adoption of the appellant, under the act of 1889, gave her the right to inherit from her adopting parent, and that right is complete. But this appellant is not claiming by inheritance from James B. Freeman, she asserts her right under the will of Henry G. Freeman. She is not a child of James B. Freeman, within the meaning of the will of his father. This question is distinctly ruled by Schafer v. Eneu, 54 Pa. 304. The decisions upon this question were referred to and ably discussed by President Judge Rice in Phillips’s Estate, 17 Pa. Superior Ct. 103. In Kohler’s Estate, 199 Pa. 455, the testator committed the distribution of the estate to the law, upon the happening of an event necessarily future, and it was held that he must reasonably be presumed to have contemplated the possibility of a change in the law in the meantime. There is nothing in that case which is not in entire harmony with the decisions above cited. The authority of Schafer v. Eneu, 54 Pa. 304, has been recognized and its doctrine reasserted in the recent case of Burnett’s Estate, 219 Pa. 599. The questions presented by this record have been so fully considered in the authorities hereinbefore cited that further discussion is unnecessary.

The decree is affirmed and the appeal dismissed at cost of the appellant.