text:
    East Whiteland Township Road.
    March 12, 1906:

      Road law — Viewers—Report—Necessity for road — Proposition from private company to construct road.

    Where viewers in their report state that a proposed road is necessary for a public road and public use, it is not fatal to the report to conclude with the statement “that in consideration of the advantages which W (a lime company named), would derive from the laying out of said new road, and the vacation of the old road, said company has agreed and promised to build said new road and make it as good a road as the present old road now is, without any expense to the township.”
    The proposition was not an improper one to be made when the question of confirmation of the road came up for consideration in court, and it was certainly not a fatal error for the reviewers to put it in their report so that the court might consider it and take such action as it deemed necessary to compel the performance of the promise before finally confirming the report.
    Argued Nov. 20, 1905.
    Appeal, No. 221, Oct. T., 1904, by William B. Irvine, from order of Q. S. Chester Co., dismissing exceptions to report of reviewers In re Road in East Whiteland Township.
    Before Rice, P. J., Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of reviewers.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to report of reviewers.

      J. Frank E. Hause, for appellant,
    cited: Derry Township Road, 11 Pa. Superior Ct. 232.

      Wm. M. Hayes, with him J. Carroll Hayes, for appellee,
    cited: Cheltenham Twp. Road, 17 Montg. Co. 18; Derry Twp. Road, 11 Pa. Superior Ct. 232; Bern Twp. Road, 17 Atl. Repr. 205.
   Opinion by

Rice, P. J.,

The act of 1836 provides, that if the viewers “ shall agree that there is occasion for the road,” they shall state particularly in their report, among other things, “ whether the road desired be necessary for a public or private road.” The language of the report of reviewers under consideration is, “ we do agree that there is occasion for a road as desired by the petitioners, and that the same is necessary for a public road, and . . . . we have laid out .... and do return for public use the following described road.” Then, after setting forth a careful description of the road and other matters not necessary to be noted now, the report concludes with a statement, “ that in consideration of the advantages which the Whiteland Lime Company would derive from the laying out of said new road and the vacation of the old road, said company has agreed and promised to build said new road and make it as good a road as the present old road now is, without any expense to the township,” and to keep in repair a certain line fence. The report is in no sense ambiguous or conditional. As to the question of the necessity for a public road it is absolute and certain. The exceptions referred to in the assignments of error to the effect that the reviewers did not determine that it was necessary for public use, but laid it out solely for the benefit of the Whiteland Lime Company, and that the company’s statement at the view with reference to the cost of opening was the only inducement that led the reviewers to report in favor of the petition, are not sustained by anything in the report itself; on the contrary, thej^ are in contradiction of the express findings of the reviewers. Upon appeal it is to be presumed that the questions raised by these exceptions, so far as they depend upon evidence outside the report, were correctly decided by the court below. But the fact that it was stated in the presence of the reviewers that the cost of opening the road would be borne by the Whiteland Lime Company appeal’s in the report itself. It is suggested that such a consideration as this should not be permitted to be submitted to road viewers because their discretion cannot properly be moved either in favor of or against the petition by the question of the cost of opening the road. For the purposes of this case it may be conceded that it was an irrelevant and immaterial fact; that all that the reviewers had to determine was, first, whether there was occasion for the road desired; second, whether it was necessary that it be laid out as a public road. But while this is true we cannot agree that there is any presumption, irrebutable or otherwise, that the statement was the inducement which led them to report in favor of the road. Taking the report as a whole,,the evident meaning is, that irrespective of this proposition of the lime company the reviewers deemed the road necessary for public use. The proposition was not an improper one to be made when the question of confirmation of the road came up for consideration in court, and it was certainly not a fatal error for the reviewers to put it in their report so that the court might consider it and take such action as it deemed necessary to compel the performance of the promise before finally confirming the report. See Derry Township Road, 11 Pa. Superior Ct. 232; Bern and Penn Township Road, 2 Mona. 105.

The assignments of error are overruled and the order is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Baldi v. Metropolitan Life Insurance Company, Appellant.

      Insurance — Life insurance — Proofs of death as evidence.

    Where in an action on a policy of life insurance, the plaintiff offers the proofs of death for the sole purpose of showing that the condition precedent to the right to sue, namely, furnishing the company sufficient proof of death, had been performed, and the defendant offers no evidence, the latter cannót use the proofs of death as a basis for a motion for nonsuit, on the ground that the proofs of death contained unexplained and uncontradicted statements showing on the face of the papers a breach of the condition relating to the statements of the insured in his application.
    Where proofs of death are offered and admitted specially, they are not in evidence for any and every conceivable purpose for which such documents may be introduced in an action on the policy.
    It is within the power of the court to control the order of evidence by admitting the proofs of death for the single and exclusive purpose of determining whether they comply with the requirements of the policy, and postponing comparison of the statements contained in them with the statements contained in the application until they are offered for that purpose by the defendant.
    Argued Oct. 17, 1905.
    Appeal, No. 117, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 741, on verdict for plaintiff in case of Charles C. A. Baldi, Administrator of the Estate of Francis Rizzo, deceased, v. Metropolitan Life Insurance Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance. Before Wiltbank, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,455. Defendant appealed. See 18 Pa. Superior Ct. 599 and 24 Pa. Superior Ct. 275.

      Error assigned was in not giving binding instructions for defendant.

      Arthur G. Dickson, with him Dickson, McGouch & Glasgow, for appellant.
    — When the proofs of death were offered by the plaintiff, even though by that offer it was intended only to prove a compliance with the terms of the policy, their contents, in the absence of explanation or contradiction, established that there had been a breach of a warranty material to the risk, rendering the policy void, so that the direction of a verdict for the defendant would have been proper: Connell v. Metropolitan Life Ins. Co., 16 Pa. Superior Ct. 520; Shaller v. Brand, 6 Binney, 435; Benseman v. Ins. Co., 13 Pa. Superior Ct. 363; Ins. Co. v. Newton, 89 U. S. 32; Hassencamp v. Mutual Benefit Life Ins. Co., 120 Fed. Repr. 475; Goldschmidt v. Mutual Life Ins. Co., 33 Hun (N. Y.), 441; Cook v. Ins. Co., 84 Mich. 12 (47 N. W. Repr. 568); Fisher v. Life Assn., 188 Pa. 1; Ins. Co. v. Higginbotham, 95 U. S. 380; Ins. Co. v. Rodel, 95 U. S. 232; Siebelist v. Metropolitan Life Ins. Co., 19 Pa. Superior Ct. 221; New York Central Ins. Co. v. Watson, 23 Mich. 486; Continental Ins. Co. v. Hulman, 92 Ill. 145; Bentz v. Northwestern Aid Assn., 40 Minn. 202 (41 N. W. Repr. 1037); Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526 (44 N. E. Repr. 1099); Supreme Lodge Knights of Pythias of the World v. Beck, 94 Fed. Repr. 751; Schmitt v. National Life Assn., 84 Hun, 128 (32 N. Y. Supp. 513); Ins. Co. v. Schwenk, 94 U. S. 593; Supreme Tent K. of M. v. Stensland, 68 N. E. Repr. 1098; N. A. Fire Ins. Co. v. Zaenger, 63 Ill. 464; Walther v. Mutual Life Insurance Co., 65 Cal. 417 (4 Pac. Repr. 413), is a persuasive authority in favor of our position.

      March 12, 1906:

      Frederick A. Sobernheimer, for appellee.
    -The law of Pennsylvania from 1811 to the present time has settled that proofs of loss or death furnished in compliance with a condition in the policy are not evidence for the assured, and are only for the inspection of the court to decide whether there has been a sufficient compliance or not. They can only be made evidence by the insurer offering them, or by the insured offering them generally, no objection being made to such offer by the insurer: Thurston v. Murray, 3 Binney, 326; Klein v. Franklin Ins. Co., 13 Pa. 247; Commonwealth Ins. Co. v. Sennett, 41 Pa. 161; Kittanning Ins. Co. v. O’Neill, 110 Pa. 548; Cole v. Fire Assurance Co., 188 Pa. 345; Sutton v. American Fire Ins. Co., 188 Pa. 380; Cummins v. Ins. Co., 192 Pa. 359; Ulysses Elgin Butter Co. v. Hartford Fire Ins. Co., 20 Pa. Superior Ct. 384; Rosenberg v. Ins. Co., 209 Pa. 336; Baldi v. Ins. Co., 24 Pa. Superior Ct. 275; Dougherty v. Life Ins. Co., 3 App. Div. 313 (38 N. Y. Supp. 258); Trudden v. Life Ins. Co., 50 App. Div. 473 (64 N. Y. Supp. 183).
    The defendant must introduce the proofs of death itself, as furnished, if it desires to have the benefit of the admissions contained therein as against the plaintiff: John Hancock Mutual Life Insurance Co. v. Dick, 44 L. R. A. 846.
   Opinion by

Rice, P. J.,

The parts of the policy, application and proofs of death, material in the consideration of the questions involved in this appeal, are set forth in the opinion filed when the case was here before, and reported in 24 Pa. Superior Ct. 275. The matter assigned for error is the refusal to direct a verdict for the defendant, the reason assigned for the request for binding instructions being, that there was proof of a breach of warranty apparent on the face of the papers. The proof of breach of warranty is claimed to consist in this: that according to the statements of the plaintiff and the attending physician contained in the proofs of death the insured was treated, prior to his application, by Dr. Leone — we quote from the latter’s statement — “ for a mild attack of angina pectoris, which speedily yielded to treatment and was fully cured,” whereas in his application, in answer to the question put by the company’s medical examiner as to any illness he may have had since childhood, the insured mentioned only essential fever due to cold, for which he was treated by Dr. Deakyne, and to the question whether he had consulted any other physician, he answered, “No.” By the express words of the policy all answers and statements contained in the application were made warranties and part of the contract. Upon the former trial, after the defendant had put the proofs of death in evidence generally, evidence was introduced in rebuttal explanatory of the claimant’s statement, and to some extent contradictory of the attending physician’s statement contained in the proofs of death, and this evidence was held by us to be sufficient to carry to the jury the question as to the existence of the facts, not disclosed in the application, of prior illness and medical attendance, upon which the claim of breach of warranty is founded. No such testimony was introduced on the last trial, and neither the proofs of death, nor any other evidence, were offered by the defendant. The proceedings at the trial were substantially as follows: First, the plaintiff offered the policy and his letters of administration. These were admitted without objection. Then the death of the insured on September 11, 1887, and the payment of premiums in due course up to the time of his death, were admitted by counsel, after which, the proofs of death, consisting of four papers, were produced by the defendant on the call of the plaintiff. After a preliminary motion, which was withdrawn and therefore need not be noticed, the plaintiff’s counsel stated that they desired to use these documents in order to show that there had been a prima facie ease of tender of proofs of death, and for this purpose only. Upon objection being made to such restricted offer, the court said: “ I will take the papers produced by the defendant on the call of the plaintiff as proofs of death. The same are not to be regarded' as in evidence. They are here inerely to indicate that they were, in the character designated, tendered to the company defendant at the- dates named. This is only in as indicative, prima facie, of submission to the company defendant of four certain documents which are arbitrarily called proofs of death, and as significant merely for the purpose of showing that qua proofs of death, papers passed from one party to the other.” The defendant excepted to the ruling, the plaintiff rested and thereupon the defendant moved for a nonsuit, which was refused, and then for binding instructions. It will be seen from the foregoing that at this stage of the case the record was not in satisfactory shape for the plaintiff, for it might be open to the construction that the proofs of death were not in evidence for any purpose. But upon motion of his counsel they were permitted “ to reopen their case in order that they may offer the documents heretofore identified in four packages as proofs of death, as being furnished in compliance with the terms of the policy upon blanks of the company, and which were submitted merely as in compliance with the terms of that policy.” This ruling was excepted to by the defendant’s counsel. The proofs of death were then admitted, and the defendant’s counsel renewed his motion for nonsuit and for binding instructions, both of which were overruled.

The foregoing recital of the proceedings leading up to the admission in evidence of the proofs of death would have been unnecessary, if the offer had been as explicit as in the Rondinella case, which was argued at the sanie time, and it is to be regretted that the determination of the really important question of practice and evidence discussed by counsel should be embarrassed by any doubt as to the meaning and scope of ■the offer under which they were admitted. Nevertheless, viewing the proceedings as a whole, we think it reasonably apparent, that the documents were not offered in evidence generally, as in Siebelist v. Metropolitan Life Insurance Company, 19 Pa. Superior Ct. 221, but, as in the Rondinella case, were offered and admitted specially to show that the condition precedent to the right to sue, namely furnishing the company sufficient proofs of death, had been performed.

It is contended by the defendant’s counsel that, even though under the special offer the proofs of death were exclusively for the consideration of the court, yet, when the motions for nonsuit and binding instructions were made, the court could and ought to have compared them with, the application, and determined from such comparison whether the unexplained and uneontradicted statements contained in the proofs showed a breach of the condition relating to the statements of the insured in his application which avoided the policy. The plaintiff’s counsel contend that the burden of proving a breach of that condition rested on the defendant, and that, as the proofs had been .offered and admitted for the consideration of the court, and for the single purpose of enabling the court to determine whether the condition precedent to the right to sue had been fulfilled, the plaintiff was not bound to introduce evidence for the consideration of the jury upon the question of the falsity of the answers contained in the application, until the defendant had offered evidence tending to establish that fact.

The general rule is that a party offering a paper in evidence must offer the whole of it just as it is, and if it requires explanation the burden is upon him to explain : Cary v. Cary, 189 Pa. 65; Connell v. Metropolitan Life Insurance Co., 16 Pa. Superior Ct. 520. Hence if there was anything in these documents which, in the absence of explanation, would have rendered them ineffective as substantial compliance with the condition precedent, it would have been the duty of the court to take notice of it; plaintiff could not have avoided this by offering only such parts of the proofs as were unexceptionable, and reserving the right to postpone explanation of the parts that tended to show noncompliance with the condition until after they had been offered by the defendant. So, also, if he had offered the proofs in evidence generally, and had closed his case without explanation, correction or contradiction of the statements therein that tended to show the falsity of the answers contained in the application, the defendant would have had a right to assume that they were in evidence for every legitimate purpose, and to insist that they be considered by the court in determining the question of breach of warranty, which was raised by the motion for nonsuit and the subsequent request for binding instructions, as well as the question whether the plaintiff had complied with the condition precedent as to furnishing proofs. Again, the plaintiff might have offered the proofs without defining the purpose, thus leaving their scope and effect as evidence to be determined by the court, and followed this offer by evidence in explanation and correction of the statements contained in them. The foregoing propositions, while supported by the cases cited in the comprehensive brief of appellant’s counsel, do not directly meet and govern the 'question before us, and it will not be out of place to review some of the Pennsylvania cases bearing more or less directly upon it.

Speaking of the function of proofs of loss in an action on a policy of fire insurance, Read, J., after reviewing the earlier cases, said: “ They are conditions precedent and for the court, and being in writing the question of sufficiency is to be decided by them. If they are not sufficient the cause is at an end, unless they have been expressly or impliedly waived by the defendants : ” Commonwealth Insurance Co. v. Sennett, 41 Pa. 161. In a case where, despite the defendant’s objection, the court permitted the proofs of loss to be sent out with the jury, Mércue, J., said : “ It is true it has been ruled that in the sound discretion of the court many papers that have been given in evidence may be sent out with the jury. This paper, however, had not been given in evidence generally. It was admitted solely for the purpose of showing that proofs of loss had been furnished as required by the policy. ‘ It was, therefore, for the purpose of showing a condition precedent to a right of action. Being in writing the question of sufficiency for that purpose is to be decided by the court. ... It would be error to permit the insured to give them in evidence to the jury on the trial, and the error was greater in permitting the jury to consider the several averments therein without their having been given in evidence : ” Kittanning Insurance Co. v. O’Neill, 110 Pa. 548. “The preliminary proofs are conditions precedent; what constitutes them is determined by the contract, and, the proofs being in writing, that is a question for the court. Here, the court first held that'the proofs made by the plaintiffs were a substantial compliance with the requirements and conditions of the policy. If it had been held that on the face of them they were not, that would have ended plaintiffs’ case, unless plaintiffs offered to follow them with evidence that defendant had waived the service of such preliminary proofs by conduct which misled plaintiffs and estopped defendant from insisting on the condition as a prerequisite, but having been decided by the court to be a sufficient compliance with the requirements of the policy, as the trial then stood, the plaintiffs had the right to proceed to establish their claim to the satisfaction of the jury, not by exhibiting to them the proofs of loss, but by evidence independent of them: ” Per Dean, J., in Cole v. Manchester Fire Assurance Co., 188 Pa. 845. Later in the opinion he showed that, while in the first instance proofs of loss are admissible for the purpose above stated, and are exclusively for the court, yet subsequent developments in the trial may entitle the defendant to offer them for consideration by the jury, for example, to contradict the testimony of the plaintiff or to show falsehood, fraud or false swearing. In Sutton v. American Fire Insurance Co., 188 Pa. 380, it was said that when proofs of loss have been transmitted to and received by the company they have performed their office,.that is, fulfilled a condition precedent to the right to sue. In Cummins v. German-American Insurance Co., 192 Pa. 359, and in Ulysses Elgin Butter Co. v. Hartford Fire Insurance Co., 20 Pa. Superior Ct. 384, the doctrine was reiterated that proofs of loss made out by the insured are, in the first instance, only evidence for the court, that it may be determined whether a condition precedent to recovery has been sufficiently complied with to warrant the institution of suit. In all these cases, it is true, the plaintiff sought to use the proofs before the jury for other purposes, therefore they do not rule the precise question under consideration. They are pertinent, however, because they show the propriety of the plaintiff offering the proofs for the special purpose above stated, and while none of them decides that it is necessary for the insurer to offer them again when he desires to use the statements contained in them to establish, or to aid in establishing, other matters of defense, yet the propriety of so doing is distinctly recognized, especially in Cole v. Manchester Fire Insurance Company; and an examination of many cases bearing upon the subject warrants us in saying that, whether absolutely necessary or not, this is not unusual in practice. A case more directly in point than any of the foregoing is Rosenberg v. Fireman’s Fund Insurance Co., 209 Pa. 336. In that case the plaintiff offered the proofs for tire consideration of the court. One of the defenses set up was that the plaintiffs had feloniously caused the fire, and at the conclusion of the court’s charge the defendant’s counsel requested that the proofs be sent out with the jury. The refusal of this request was one of the matters assigned for error. We infer from the opinion of the court that it was claimed by the appellant’s counsel that the proofs, by their very completeness, tended to show the plaintiffs’ preparation for the fire, and therefore the defendant had a right to have them examined by the jury. We quote from the opinion: “Proofs of loss are for the court, in order that it may determine as a preliminary matter whether there has been a sufficient compliance with a condition precedent to the institution of the action. It has been uniformly held that they are not evidence for the plaintiff and cannot be read to the jury : Cole v. Manchester Fire Assurance Co., 188 Pa. 345; Cummins v. German-American Insurance Co., 192 Pa. 359. They were offered by the plaintiff not generally nor as evidence of the amount of loss, but specially for the consideration of the court. If. the defendant desired to use them as evidence of premeditation or design, the question of their admissibility for that purpose could be raised only by its offer of them.” It is thus seen that the assignment of error was not overruled upon the ground that sending out papers with the jury is discretionary with the trial court, but for the reason that the proofs of loss were not in evidence for the purpose for which the defendant desired to use them before the jury. This case is not parallel with the present in every particular, and it would be pushing it too far to say that it rules the question before us. But we think it quite clear that it is authority for the proposition that where the proofs are offered and admitted specially, as in this case, they are not in evidence for any and every conceivable purpose for which such documents may be introduced in an action on the policy.

Is it within the power of the court to control the order of evidence by admitting the proofs of death for the single and exclusive purpose of determining whether they comply with the requirements of the policy, and postponing comparison of the statements contained in them with the statements contained in the application until they are offered for that purpose by the defendant ? This, as we view the record, is what the plaintiff asked the court to do, and what the court intended and attempted to do, and. we are not convinced that the action was erroneous. It did not deprive the defendant of the benefit of the provision of the ninth condition of the policy, that the proofs of death “ shall be evidence of the facts therein stated in behalf of but not against the company.” Having been produced on the call of the plaintiff and offered by him, they needed no further identification. The defendant could then have put in evidence the statements contained in them as to former illness and medical attendance, and, if no evidence explaining, correcting or contradicting them was introduced in rebuttal, would have been entitled to binding instructions. If the plaintiff introduced such evidence in rebuttal, the manner of submitting the question to the jury would have been the same as if he had introduced it as part of his case in chief. No substantial advantage was given him by the order of evidence sanctioned by the court. Nor are we convinced that it is in conflict with any unbending general rule, or irreconcilable with the weight of authority as shown by the cases cited by the appellant’s counsel. It would unduly extend this opinion to review all of those cases and point out the distinctions between them and the case in hand. We think, however, after as thorough examination of them as we have been able to make, we are right in saying that our conclusion is not irreconcilable with what was actually decided in them, with perhaps one exception. The position of the appellant’s counsel, it must be conceded, is supported by the reasoning of the case of Walther v. Mutual Life Insurance Co., 65 Cal. 417 (4 Pac. Repr. 413), and we are not unmindful of the respect to which the decisions of the court which rendered the judgment in that case are entitled-' But, even though the case were more closely similar in its facts to the case at bar, it would not be a controlling precedent which we would be bound to follow. After deliberate consideration of the question, and in the absence of authoritative decision to the contrary which we would be bound to follow, we are constrained to adhere to the conclusion heretofore stated as to the action of the court in admitting the proofs of death for the single purpose for which they were offered. It follows logically that the defendant was not entitled to binding instructions.

Judgment affirmed.


text:
    Rondinella v. Metropolitan Life Insurance Company, Appellant.
    March 12, 1906:

      Insurance — IAfe insurance — Proof of death — Evidence.
    Where proofs of death are offered for the sole purpose of showing compliance with the condition precedent of the policy to the right to sue, and the defendant offers no evidence, the proofs cannot be used as proof of a breach of warranty apparent on the face of the papers.
    Argued Oct. 19, 1905.
    Appeal, No. 118, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 742, on verdict for plaintiff in case of Ferdinand Rondinella, Guardian of Joseph Rizzo et al., Minors, v. Metropolitan Life Insurance Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Judgment on verdict for plaintiff. Before Wiltbank, J.
    The opinion of the Superior Court states the case.
    'Verdict and judgment for plaintiff for $1,455. Defendant appealed. See 18 Pa. Superior Ct. 613 and 24 Pa. Superior Ct. 293.

      Error assigned was in refusing binding instruction for defendant.

      Arthur G. Dickson, with him Dickson, McCouch & Glasgow, for appellant.

      Frederick A. Sobernheimer, with him William A. Gray, for appellee.
   Opinion by

Rice, P. J.,

So far as the terms and conditions of the policy in suit, the statements in the application therefor and the statements in the proofs of death are concerned this case does not differ essentially from the case of Baldi v. Metropolitan Life Insurance Company, ante, p. 213, in which we this day file an opinion. But, as intimated in that case, the restricted purpose for which alone the plaintiff offered and the court admitted the proofs of death is more explicitly stated in the record of the evidence. The offer as stated by counsel was : “ I will offer the proofs of death for the consideration of the court, in order that the court may determine, as a preliminary matter, whether there has been a sufficient compliance with the conditions precedent in the policy, with reference to the furnishing of the proofs.” The objection to this offer was overruled and an exception noted for the defendant. The plaintiff offered in evidence no explanation of the discrepancies between the statements contained in the proofs of death and the statements contained in the application, and the defendant offered no evidence whatever. As the case stood when the plaintiff rested, the policy had been put in evidence, together with the defendant’s admissions that the premiums had been duly paid, that the plaintiff was duly appointed guardian and that the insured died on September 11, 1897. The proofs were produced by the defendant upon plaintiff’s call and showed on their face sufficient compliance with the condition of the policy with reference to furnishing proofs of death. It is thus seen that the question raised by the single assignment of error, which is to the refusal of the court to give binding instructions for the defendant, is the same as the question considered by us in the Baldi case. For the reasons there given the assignment is overruled and the judgment affirmed.


author: Porter, J.,

text:
    Sensenig v. Lancaster County, Appellant.

      Road law — Costs—Opening street — Vacation of street.

    On an appeal from an award of a jury of view in proceedings under the Act of April 18, 1873, P. L. 811, relating to the city of Lancaster, the defendant city offered at the trial an ordinance vacating the street as to the opening of which damages had been awarded. The court thereupon directed the jury to render a verdict for defendant, and at the same time made an order “that the defendant pay all costs and expenses incurred by the plaintiff in this suit.” No judgment was entered on the verdict. The court subsequently appointed a master to report as to the costs and expenses, and the master reported in favor of the plaintiff. Held, that the city was legally liable for the costs and expenses incurred both in the quarter sessions and the common pleas, notwithstanding the verdict in favor of the defendant.
    March 12, 1906:
    Argued Nov. 14, 1905.
    Appeal, No. 76, Oct. T., 1905, by-defendant, from order of C. P. Lancaster Co., Dec. T., 1898, No. 14, overruling exceptions to master’s report in case of Levi Sensenig v. County of Lancaster and the City of Lancaster.
    Before Rige, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of Henry Carpenter, Esq., Master.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in overruling exceptions to master’s report.

      E. M. Gilbert, city solicitor, and C. E. Montgomery, for appellant.
    — The defendant cannot be legally ordered to pay the plaintiff any costs, counsel fees or expenses in this case: Myers v. South Bethlehem Boro., 149 Pa. 85; Moravian Seminary v. Bethlehem Borough, 153 Pa. 583; Uhler v. Cowen, 199 Pa. 316; Morris v. Phila., 199 Pa. 357.

      W. U. Hensel, for appellee.
    — Plaintiff was entitled to his costs and expenses: Myers v. South Bethlehem Boro., 149 Pa. 85; Thuer v. Cowen, 199 Pa. 316.
   Opinion by

Porter, J.,

The city of Lancaster, acting through its officers and under the authority of the special Act of assembly approved April 18, 1873, P. L. 811, laid out a street over the lands of the plaintiff. The plan was duly approved and viewers appointed by the court of quarter sessions, in accordance with the provisions of the local statute ; the report of viewers was filed in the court of quarter sessions, the plaintiff appealed and demanded a jury trial, and that appeal was filed in the court of common pleas prior to the approval of- the Act of May 16, 1891, P. L. 75. The act of 1873 provided for the appointment of viewers and the ascertainment of damages upon the approval of the plan by the court of quarter sessions, the damages to be paid by the city of Lancaster and the county of Lancaster, in the manner and in the prcrportions directed by existing laws, but that the damages should not become payable until the street had been ordered to be opened. There is no dispute that the plaintiff was required to present his claim for damages to the viewers, and it is conceded that if he was dissatisfied with the report of viewers, his remedy was by an appeal and a jury trial upon the question in the common pleas. While the appeal was pending in the common pleas the city passed an ordinance vacating the street, but took no steps to bring that ordinance upon the record of the legal proceedings in which it had involved the plaintiff and has never asked leave to discontinue those proceedings. The city, on the contrary, subsequently joined in framing an issue in the appeal of the plaintiff, and in answer to the statement of the plaintiff filed in that appeal entered the general plea of not guilty, without attempting to set up the ordinance vacating the street. Upon the trial of the issue the city offered in evidence the ordinance vacating the street, and the court thereupon directed the jury to render-a verdict in favor of the defendant, and the court at the same time made an order “ that the defendant pay all costs and expenses incurred by the plaintiff in this suit.” The plaintiff, on the second day after the verdict, filed reasons and obtained a rule to show cause why a new trial should not be allowed, and no judgment has ever been entered on the verdict-. The court subsequently appointed a master to.take testimony and report the facts as to the costs and expenses incurred by the plaintiff in the condemnation proceedings. Exceptions were filed to the report of the master, and after filing an opinion, which fully satisfies us that the conclusion at which he arrived was correct and the allowance made reasonable, the court below fixed the amount of the costs and expense for which the plaintiff was entitled to be reimbursed at 1367.05. The city contends that because the ordinance vacating the street was passed before the issue was finally tried the plaintiff is not entitled to recover any amount whatever for costs and expenses; that he could recover nothing for the costs and expenses incurred in the proceedings in the quarter sessions, for they were not incurred in this suit, and that he can recover nothing for the costs and expenses in the common pleas, for the street had been vacated before the issue was tried.

Had there been a final judgment in the proceeding in the common pleas before the court made the order directing that the city pay the costs and expenses incurred by the plaintiff in the proceeding, that judgment would have been conclusive of the whole matter: Myers et al. v. South Bethlehem Boro., 149 Pa. 85. No judgment has, however, been entered on this verdict, and the question remains open. The power of the court to authorize the discontinuance of the proceeding depends on the law as it stood prior to the passage of the Act of May 16, 1891, sec. 75, P. L. 7. That statute has no application, and under the general law in-force prior to its passage the court had power to authorize a discontinuance of the proceedings, on prope'r and adequate terms ; the payment of all the costs and expenses to which the plaintiff has been subjected by reason of said condemnation proceedings: Moravian Seminary v. Bethlehem Boro., 153 Pa. 583; Uhler v. Cowen, 199 Pa. 316. We do not say that the action of the court in giving binding instructions in favor of the defendant was correct, for this plaintiff had a right to recover the costs and expenses to which he had been put, but those instructions did this appellant no harm. The case has been argued here on its merits, and the learned counsel representing the appellant, without insisting upon tecnical difficulties arising from the state of the record, has fairly presented the question : “ Was the city legally liable fo%the costs and expenses incurred by the plaintiff ? ” That the city was so liable for the costs and expenses incurred in the condemnation proceedings, in the court of quarter sessions as well as in the court of common pleas, has been definitely ruled in the case of Huckestein v. Allegheny City, 165 Pa. 367. That case grew out of an ordinance of the city changing the grade of a street which had no existence, and it was held that the ineffective attempt of the city to change the grade did not give the plaintiff a right to recover damages as if for an actual injury to his land. That case, like this, had passed from the quarter sessions by appeal into the common pleas. There was a verdict in favor of the plaintiff in the court below and the Supreme Court reversed the judgment, making.this order, “ The record is remitted that the court may fix an allowance for counsel fees for the plaintiff and tax the costs. If these are paid no venire facias de novo will be awarded. If not paid, application can be made to us for sucli writ.” This clearly recognizes the right of the plaintiff, when the municipality has instituted a proceeding for the condemnation of his property which involves him in cost and expense, to have the amount of such cost and expense determined in that issue, although the municipality may have blundered in instituting the proceeding without having enacted the ordinances necessary to make it effective. Just as in the case of the Moravian Seminary v. Bethlehem Boro., 153 Pa. 583, it was held that the municipality was liable for the costs and expenses incurred by plaintiff in the litigation into which it had drawn him, although the public improvement was abandoned before a final judgment was entered in the condemnation proceeding. In 'the case last cited the plaintiff had recovered a verdict against the municipality for the amount of the damages which would have resulted to the property in case the improvement had been completed, but no valid judgment had been entered on that verdict. The Supreme Court made that verdict the instrument for compelling the municipality to pay the costs and expenses incurred by tire plaintiff; in case the amount allowed for costs and expenses was not paid, the plaintiff was to have leave to enter a judgment upon the verdict. The pending proceeding-in Huckestein v. Allegheny City was used as the means of compelling compliance by the municipality with the order to pay the costs and expenses incurred by the plaintiff; in case they were not paid a venire facias de novo was to be awarded, in which event the amount of the expenses would have been ascertained by the jury. There may in the present case be some difficulty in the way of enforcing the order, for the jury under the instructions of the court rendered a verdict in favor of the defendant; the remedy in such a case, if the municipality fails to comply with the order, would seem to be for the court below to grant a new trial, if the record is in such condition as to permit of the exercise of that power, otherwise the only course open to the plaintiff would be to appeal from the judgment entered upon the verdict.

The appeal is dismissed at the costs of the appellant.


author: Orlady, J.,

text:
    Reed, Appellant, v. Reed.

      Divorce — Appeals—Review by appellate court — Domicile.
    On an appeal from a decree in divorce it is incumbent upon the Superior Court, except -where there has been an issue.and a jury trial, to review the testimony, and adjudge whether it sustained the complaint of the appellant. The rule generally applicable to proceedings before a master or an auditor, that a finding- of fact will not be disturbed, except for manifest error does not apply to such a case.
    Where a libelant in a divorce suit established legal grounds for a divorce, her libel should not be dismissed on the ground that her bona fide residence had not been established, where it appears that she had resided for one year within the state, testifies that she intended to make it her permanent residence, and shows to the court that she had left her former domicile because of her domestic troubles, had settled in a Pennsylvania city because she had there some sympathetic relations, and had there secured employment as a nurse and companion, and this proof is supported by the master in specially certifying that he was satisfied by personal inquiry that the residence of the libelant in Pennsylvania was correct and bona fide.
    Argued Oct. 5, 1905.
    Appeal, No. 58, Oct. T., 1905, by plaintiff, from decree of O. P. No. 2, Phila. Co., June T., 1901, No. 803, dismissing libel in divorce in case of Agnes Blair Reed v. George Elkins Reed.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Libel in divorce.
    The facts are stated in the opinion of Sulzberger, P. J., which was as follows :
    The libelant and respondent, both citizens of New York, were married in Brooklyn, N. Y., on February 22, 1900, and removed thence to South Amboy, N. J., where they lived about six months. Afterwards they lived together at Newburgh, New York, for over a year, and then at Brooklyn, N. Y., until November IT, 1902, when the libelant left her husband because of his ill-treatment of her.
    She came to Philadelphia in December, 1902. Her testimony is that when she left her husband she took the baby to her husband’s father at Baltimore, who had agreed to support the child, and, to use her own words, “ immediately came to Philadelphia as a nurse and companion to a Mrs. Dodge for seven months; we were at Delaware Water Gap for a while and I left Mrs. Dodge and came back to Philadelphia and I was nurse and companion for a Mrs. Murray, 100 West Coulter street, Germantown, for eight months until she died. I was also companion to a Mrs. Nassau, on North Broad street, Philadelphia. Since then I have no employment. I have not felt very well and I have been doing nothing but living upon my mother’s check which she had been sending me each week.”
    Her reasons for coming here she stated to be “ taking a position here and because I didn’t care to stay in Brooldyn, N. Y., where I was known and lived well before I was married, and I came here because I had friends here and I wanted a position and did not care to work where I was known by everybody. I have some cousins here and an aunt. I intend to make this my home. I have made this my permanent residence.”
    The libelant’s mother testified that her daughter wanted to get away from Brooklyn on account of friends and acquaintances, and she had relatives here in Germantown.
    The master found that the libelant has resided in Philadelphia since December of 1902, which is in effect a finding that she had resided here at least one whole year previous to the filing of the libel.
    In Lyon v. Lyon, 61 Legal Int. 410, 13 Pa. Dist. Rep. 623, we held that in order to obtain a divorce the libelant must have had a bona fide residence here; that is, a residence with domiciliary intention.
    The facts in the present case are strikingly similar to those in Lyon v. Lyon. Here, as there, both parties were strangers to this commonwealth, before and at the time of their marriage, and here, as there, the marital offense was committed in another state while both parties were citizens of that state.
    Moreover, the parties were also citizens of the state of New York, whose law allows absolute divorce on the one ground of adultery only, and grants merely a separation for the cause alleged on this libel.
    When persons desire an absolute divorce under such circumstances ' it is only natural to expect them to turn to a state where the laws are more favorable to their wishes than is the law of their own domicile, and it is quite conceivable that one of the parties would be willing to devote a year or more' of time to the accomplishment of a cherished purpose otherwise unattainable. This state of affairs must continue while two adjoining commonwealths have divorce laws of opposite character, the one of extreme stringency, the other of wide liberality.
    While it is 'our duty to give to our own citizens the benefit of our liberal divorce laws, the extension of their action to citizens of other states whose laws are dissimilar, would be a lack of comity toward our sister states, and hence we must be reasonably sure that the party seeking relief is really and in good faith a resident within this state, of such degree as to entitle her to the protection of our divorce law.
    The evidence in this case leaves us unsatisfied of the libel-ant’s right. Her mother lives in Brooklyn; her child in Baltimore. The motive for coming to Philadelphia, in preference to another place, is alleged to be the residence of an aunt and cousins here, while she gives as her motive for leaving Brooklyn the desire not to be working under the observation of friends who had known her when in better circumstances.
    The motive seems weak. Any young woman without property or business interests can readily go from one town or state to another, and the mere fact that she had a situation from time to time as a nurse and companion for a sick person, is but slight evidence even of actual residence. It is quite as consistent with residence in an adjoining state.
    Her mere declaration of the state of her mind regarding her intention to settle here permanently, without confirmatory evidence satisfactory to the court, is, as we held in Lyon v. Lyon, not conclusive. No witness living in Philadelphia was called to show any of the libelant’s movements, acts, or relations with other parties since December, 1902. Whether she visited anyone or received visits, whether she made acquaintance with anybody or acquired interests of any kind here, does not appear. Coming here in December, 1902, she may, for aught that appears in the evidence, be as mere a stranger to-day as she was on the day of her arrival.
    When we remember that the libelant and her husband parted with bad feeling in November, 1902; that she went to Philadelphia and he to Báltimore; that on May 6, 1904, the libel was filed and the subpoena issued; and that on May 12, 1904, the sheriff served the subpoena personally on the respondent at the southwest corner of Broad and Chestnut streets, in the city of Philadelphia, we have here the circumstances which, as we said in Lyon v. Lyon, “ cause us to scan the evidence closely in order to see whether the grounds of divorce, as set forth in the libel, are fully made out by the evidence.” -
    March 12, 1906:
    It may not be without significance, in this connection, that in the libel sworn to by the libelant on May 5, 1904, she averred that the respondent had during “ their ” residence at No. 1,742 Green street, in the city of Philadelphia, and also previous to such time, committed the marital offense complained of. In point of fact, as the evidence shows, the respondent has never lived at 1,742 Green street, nor anywhere else in the city of Philadelphia, either with the libelant or separate from her.
    We do not think that the bona fide residence of the libelant, within the meaning of our divorce law, has been established.
    The libel is dismissed at the costs of the libelant.

      Error assigned was decree dismissing the libel.

      Arthur G. Dickson, with him Samuel J. Houston and James McMullan, for appellant.
    The libelant’s bona fide residence was established: Bigger v. Bigger, 28 Pa. C. C. Rep. 448; Com. v. Ainsworth, 6 Pa. Dist. Rep. 707; Shepard v. Shepard, 18 Pa. Superior Ct. 467; Hull v. Hull, 8 Pa. Dist. Rep. 420; Raymond v. Raymond, 14 Pa. Dist. Rep. 309; Totten v. Totten, 12 Pa. Dist. Rep. 221.
    No appearance nor paper-book for appellee.
   Opinion by

Orlady, J.,

It was held in Middleton v. Middleton, 187 Pa. 612, that in cases like the present one it is incumbent on the Supreme Court, and now on this court, except where there has been an issue and a jury trial, to review the testimony and adjudge whether it sustained the complaint- of the libelant, and, that the rule generally applicable to proceedings before the master or an auditor, that a finding of fact will not be disturbed except for manifest error, is not applicable. In every case in •which the appeal is from a decree not based on the findings of a jury from testimony produced and the finding had in open court, under the instructions of the judge as to the law, the court is to take up, analyze and review the testimony. Therefore, of whatever drudgery the court of original jurisdiction may relieve itself in this class of cases by the appointment of an examiner, neither it nor we can escape the burden of a careful consideration of the evidence to ascertain if it does in very truth establish the statutory grounds of divorce.

The parties to this action were married February 22, 1900, in Brooklyn, N. Y., at which time both were domiciled in that state. The husband was a life insurance agent, and evidently from business engagements or other reasons he did not remain at one place any definite period. They first went to live at South Amboy, N. J., where they remained about six months, then to Newburgh, N. Y., for about a year, then to Brooklyn, until November 17, 1902, when the libelant left her husband because of his ill treatment. A child was born December 7, 1901, which the mother took to Baltimore, Md., where the child was received by the father of the respondent, and has been since then kept and maintained. The wife came to Philadelphia in December, 1902, and on May 6, 1904, filed the libel in divorce on which this action is founded. The subpoena issuing thereon was served personally on the respondent on May 12, 1904, in Philadelphia. On July 20 a master was appointed, who caused a notice to be served on the respondent in Baltimore, Md., reciting the causes for divorce as set out in the libel, and that by reason of his default in not filing an answer the case had been referred to the master, who would take testimony in the case in his office in Philadelphia on October 12, 1904 ; the respondent did not appear in court, nor before the master and, pursuant to the notice, the testimony of the libelant, with that of the other witnesses, was taken. The master participated in the investigation, filed his report with all the testimony and recommended that the prayer of the libel-ant be granted, especially certifying that he was satisfied by personal inquiry that the residence of the libelant in Philadelphia was correct and bona fide, and that she had resided in the county since- December, 1902. The learned court below dismissed the libel for the sole reason that the bona fide residence of the libelant, within the meaning of our divorce laws, had not been established.

An examination of the testimony, which is before this court in the same manner that it was before the court below, discloses a persistent refusal on the part of the husband to furnish food and clothing since their marriage, and necessary medical attendance during the wife’s pregnancy and subsequent illness ; he made a number of personal assaults upon his wife and accompanied them with abusive and vulgar epithets, showing such a depraved course of conduct as justified her in leaving him to avoid further violence and risk of life.. She was not obliged to remain in the state of New York. Being thus suddenly cast on the world and obliged to earn her own living, it was not unreasonable that she should move from the community where she had friends and acquaintances, who knew of the domestic troubles and of her former life under more comfortable conditions, to seek a new environment. She selected Philadelphia, because she had there some sympathetic relations, to secure employment as a nurse and companion, and fixed upon that city as her future domicile. She testified : “ I intend to make this my home. I have made this my permanent residence.” This, positive declaration, accompanied with her residence there since December, 1902, brings her clearly within the statutory requirements so as to give the court jurisdiction of her cause and make a decree in her favor if the evidence is believed, and is sufficient under our decisions.

Some criticism is made by the court below of the lack of proof as to her daily life, business relations to the people, and acquaintances' since coming to Philadelphia. When the evidence submitted is competent, pertinent, positive and uncontradicted, it is but just that it should be taken as establishing the facts in regard to which the testimony is directed. If it is deemed uncertain in degree, the case could be referred back to the master for a further examination along the lines suggested as inadequate.

The special difficulty in such a case is to determine the bona fides of her intention to remain a citizen. Her mere residence, as shown by physical presence, does not throw much light on the subject, and whether she engaged in business, acted as nurse or companion or was not engaged in any definite occupation, were not controlling facts. Her mode of living, whether at rent, at lodgings, or at the residence of employers or friends, was not material if her domiciliary intention conjoined with residence is made out. Ordinarily, there is no fixed period of time necessary to establish a domicile. In divorce proceedings in this state, from 1815 to 1903, the statutes all require as evidence of good intention that there should be a continuous residence within the state for a period of one whole year previous to the filing of the petition for libel.

This is a legislative prerequisite, and when it is definitely determined by competent proof it is accepted by our courts as a compliance with our laws. In the case of a man the conditions accompanying his residence are more easily and certainly determined. Exercising the right of suffrage is held to be conclusive, in many states, of a domiciliary intent: Shelton v. Tiffin, 47 U. S. 163. While holding office; engaging in business of a permanent character; the purchase of real estate with declarations of intention are regarded as the highest evidence that can be submitted on the subject. But proof of the good faith of such intention -is not limited to such a course of life. An invalid wife, without means, fleeing from the neglect and assaults of a brutish husband to avoid physical injury and obliged to earn her own living, could not be expected to furnish proof of so high a degree. However, she is not thereby precluded from the benefits of our divorce laws if she can furnish proof which is a reasonable equivalent. Text-writers and judges regard the question of domicile of a very complex character, depending almost wholly upon the personal intent of the party, so that precedents with their necessary varying facts are but of slight assistance in its solution.

The intention to abandon a former domicile must concur with the intention to acquire a new one : Hindman’s Appeal, 85 Pa. 466. Domicile depends upon no one fact, it may be defined to be a residence at a particular place accompained with positive or presumptive proof of continuing it an unlimited time : Guier v. O’Daniel, 1 Binney, 349. If the intention of permanently residing in a particular place exists, a residence in pursuance of that intention, however short, will establish a domicile : Price v. Price, 156 Pa. 617.

Our laws recognize the right of a wife to establish a domicile separate from that of her husband, when his conduct entitles her to have the marriage dissolved, and this without a judicial determination of the question. It is the only door open for her escape. If she continues to cohabit with him, such conduct is liable to be treated as a condonation of his misconduct and bar her claim to the remedy: 1 Bishop on Marriage and Divorce, sec. 123; Barber v. Barber, 62 U. S. 682; Colvin v. Reed, 65 Pa. 375; Harteau v. Harteau, 31 Mass. 181.

In Lyon v. Lyon, 13 Pa. Dist. Reps. 623, the same learned judge who made the decree in this case reviewed the question of divorce in this state, in an opinion which is a valuable contribution to the law on the subject. His conclusion in this case is based upon the reasoning given in that one. If the testimony of the libelant and her witnesses is to be believed, and there is nothing in this record to justify our discrediting it in any way, the proof furnished by her is sufficient to entitle her to a decree in her favor. She is corroborated, so far as he could do so, by the master, who was satisfied from personal inquiry that her residence in Philadelphia was in good faith, which would seem to supply, what in the mind of the learned judge below, appeared to be lacking in the way of support of her testimony as to her acquaintances and conduct since coming to the city. Under authority of Baker v. Baker, 195 Pa. 407, her testimony did not require other supporting evidence. Coming from a competent witness, and being entirely uncontradicted it was in itself sufficient to justify a decree. The record in that case shows that the respondent was personally served with a subpoena, a rule for a bill of particulars was entered and subsequently withdrawn, and no answer was filed to the libel. His attorney appeared before the master and cross-examined the witnesses examined in behalf of his wife.

The reEusal of the respondent in this case to appear in court or before the master is consistent with his conduct as set out against him in the libel and would not serve as an argument against the libelant unless there is something to suggest collusion between the parties, and there is nothing before us to i'aise a suspicion of such a relation.

Her testimony is direct, positive and uncontradicted and to raise any question affecting her credibility we must go outside of the record. She is corroborated by her mother and two other witnesses, and if a longer residence than one year should be required in such cases it is for the legislature to so declare and not the courts. Her declarations, acts and conduct have been consistent throughout and we are of the opinion that the wife has made out her case under our statutes and decisions. The decree dismissing the libel is reversed and a decree of divorce a vinculo matrimonii with costs is now entered in favor of the libelant.


text:
    Lewis v. Fleer, Appellant.

      Damages — Deliberate shooting — Trespasser—Punitive damages.

    Where a landowner observing a boy trespassing on his land deliberately goes into his house, secures a deadly weapon, and when within killing distance shoots twice at the boy who is unarmed, and is going away from him at the time, he is guilty of such wanton recklessness, vindictiveness and willful cruelty as will justify a jury in assessing punitive damages against him.

      Evidence — Infants—Jury.
    Where one has within himself the power to produce evidence of a particular fact in his favor, the jury may infer that if it were produced it would be unfavorable to him.
    Argued Nov. 21, 1905.
    Appeal, No. 90, Oct. T., 1905, by defendant, from judgment of G. P. Delaware Co., March T., 1904, No. 206, on verdict for plaintiff in case of Ernest Lewis, by his next friend, Oliver Lewis, and Oliver Lewis v. Frank H. Fleer.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The court charged as follows :
    This is a suit by Ernest Lewis and his father, Oliver Lewis, against Frank H. Fleer to recover damages for injuries which he says he received by reason of a shot, rifle shot or gun shot, in which the bullet struck him in the thigh.
    [One of the great questions in the cause is: Did this defendant fire this shot? If he did, there is no dispute, serious dispute, that it struck this boy. And the other questions will be, one of how much will compensate him for the injury and whether or not Mr. Fleer shall be punished by punitive damages because of his wantonness in the use of this pistol or gun or rifle, whatever it was.] [1]
    [Take up the question first: From the evidence in this case, are you satisfied that the defendant fired this shot ? The two boys, — Lewis, who is the plaintiff, says that he did. And you have heard what he said about whether or not this was the defendant. Mr. Fleer denies that he fired the shot, and says that from some evidence which he has received from others, as I understand from the counsel, he was not there until eight o’clock.
    So that there is really a conflict of testimony between Mr. Fleer and the plaintiff, in which one says Mr. Fleer fired the shot and Mr. Fleer virtually says he did not. Both of these persons are interested in the outcome of this lawsuit and in passing upon the weight to be given to their evidence you ought to take that into consideration. And this is especially true where there is a direct contradiction between the two.
    The other lad — I have forgotten his name — Malin, appears to have no interest in this controversy at all. He says he was present. He says he knew Mr. Fleer, and that he saw him fire the shot. He says he had seen him at Lansdowne, Darby, at his home before, seen him since, seen him here, and knows that it was Mr. Fleer.
    So that is passing upon this question of whether or not it was Mr. Fleer, you have to pass upon the weight of the evidence. And the court says to you that you should take into consideration the fact in weighing the testimony of the defendant and the testimony of the boy, Lewis, that both are interested in the outcome of this suit.] [2]
    [Mr. Fleer says, if I remember, that he did not fire at all on that day. Is that a fact ?
    Mr. Robinson : That is right. He says he has no rifle.
    Mr. Smedley: He says he had a rifle.

      The Court: Which fired a — in which was used a ball of this size.
    So that in passing upon the question you will take into consideration all the evidence in the case, and you will bear in mind, too, that this firing took place in August. As I underderstand, Mr. Fleer’s attention was not called to it until the next April — eight months after it took place. And in passing upon this question as to whether or not'he did fire this shot on this day, because he admits he was accustomed to shooting, he says, a shotgun — this ball might have been shot from a shotgun — shooting a shotgun, using a shotgun, shooting at; I believe he did not say who, boys probably, and that his attention was not called to it until eight months afterwards — whether he is able to say, because he says his recollection of it — he did not recollect it himself, as I remember, but that his attention was called to it by someone else.] [3]
    [Now, that has a very important bearing upon this case. This statement informed Mr. Fleer that this shooting took place on August 13. And if he did have evidence beside his own that would contradict it, it was very important that they be here. And while there is no presumption against him on that account, yet it is a principle of law where one has within himself the power to produce evidence of a particular fact in his favor, the jury may infer that if it was produced that it would be unfavorable to him. That is as far as it goes. There is no presumption against him on that account.] [4]
    [So that in taking into consideration who is mistaken upon whether or not he did fire this shot on that day, take into consideration the fact that both the plaintiff and the defendant are interested, take into consideration the fact that one of the witnesses has no interest, and also that Mr. Fleer did not have his attention called to this until eight months afterwards, which would increase the difficulty of his recollection of the particular day.] [5]
    If you find that he did not fire this shot, that is the end of the plaintiff’s case, and you need go no further. If you find that he did then take up the next question : Did it strike this boy ? If it did, what will compensate him ? First: What will compensate his father? He is entitled to be paid the money that he has expended. It appears to be $25.00 or $30.00. I do not remember wbat the exact amount was from the evidence. And if you find for the plaintiff you may allow the father whatever he has expended for medicine and doctors’ bills. There does not appear to be any other expenditure, I believe.
    Then take up the next question : The lad is entitled to be compensated for his pain and suffering. He does not appear to be permanently injured. At least there is no evidence from which the jury could reasonably infer that he is. But he will be entitled, if you shall find in his favor, to be compensated for the pain and suffering that he has endured, discomfort. There is not very much evidence on that subject. Very little. But it will be for you to say what will compensate him for the pain and suffering, if you shall find in his favor, that he has endured. We can lay down to you no rule by which you can measure that. It will be for you to say what would reasonably, adequately compensate him under the circumstances for the pain and suffering which you shall find he endured.
    [You may also take up the next question which has been argued to you.
    Whether or not you shall award to this plaintiff anything by way of punishment of the defendant.
    There are two kinds of damages. One is what is called damages for compensation. It compensates the plaintiff for the loss he has sustained. And the other, the courts call it punitive damages, damages by way of punishment. That can only be awarded where the act is wantonly done.
    So that if you shall find that the plaintiff is entitled to recover, you may punish the defendant for his wantonness if you find that he did wantonly injure this young man.
    And in passing upon that question you will take into consideration that this was a deadly weapon, if he did shoot, and that he fired twice. And both boys, one at least, says he aimed directly at the boy he shot, that was struck. So that it does have in it the element of wantonness. Because it is a crime in Pennsylvania to point a weapon, h loaded gun, at another.
    So that in passing upon this question, first take up the question of whether or not this defendant fired this shot. The burden is on the plaintiff. He must satisfy you that he did. If from all the evidence in the case you are satisfied that he did not, that is the end' of it. If you are satisfied that he did, then compensate the father first for the money he has expended. Next, the boy for the damages he has suffered. And if you find from the evidence this shot was wantonly fired, then you may add to your verdict by way of punishment whatever you think — if you find it was wantonly fired — is necessary to punish him for his wanton act.] [6]
    March 12, 1906:
    The plaintiff has asked us to say to you:
    1. The plaintiff asks the learned court to charge that if the jury finds that the shooting in this case was wanton or vindictive or malicious and cruel then the verdict should be for such a sum as would be a proper punishment for the unlawful and cruel act. Answer: That is affirmed. That is what we have said to you in the general charge. [7]
    Verdict and judgment for Ernest Lewis for $400 and Oliver Lewis $27.50.

      V. Gilpin Robinson, for appellant.
    — It is the province of the jury to reconcile, if possible, apparent inconsistencies and contradictions in the testimony of witnesses, and where there are such inconsistencies and contradictions, it is improper for the court to suggest that the case turns solely on the veracity of a particular witness: Fullam v. Rose, 160 Pa. 47; Richards v. Willard, 176 Pa. 181; Murphy v. Jones, 6 Atl. Repr. 726; Reel v. Martin, 12 Pa. Superior Ct. 340; Stuart v. Line, 11 Pa. Superior Ct. 345; Urias v. Penna. R. R. Co., 152 Pa. 326 White v. Black, 14 Pa. Superior Ct. 459; McCabe v. Philadelphia, 12 Pa. Superior Ct. 383; Hayes v. Penna. R. R. Co., 195 Pa. 184; Reichenbach v. Ruddach, 127 Pa. 564; Fineburg v. Ry. Co., 182 Pa. 97; Young v. Merkel, 163 Pa. 513; Heslop v. Heslop, 82 Pa. 537.
    The court erred in its submission to the jury of the question of exemplary damages: Robison v. Rupert, 23 Pa. 523.

      Garrett E. Smedley, with him Henry L. Broomall, for appellee.
    — Where there is any evidence of aggravation, wantonness or vindictiveness the question of punitive damages should be submitted to the jury, the appellee cites: Nagle v. Mullison, 34 Pa. 48; Hawes v. O Reilly, 126 Pa. 440.
   Opinion by

Orlady, J.,

The plaintiff was shot in the hip while he was trespassing on the property of the defendant, whose denial of causing the injury was as positive as it could be made, not only "that he did not shoot at the plaintiff, but that he was not at his home when the shooting occurred. On the other hand, the plaintiff, and a friend who was with him at the time, testified just as directly and positively that the defendant shot at them twice while they were going away from him, and was but forty rods distant from them at that time. The occurrence happened in clear daylight, and the defendant was directly identified by these two witnesses. We have nothing to do with their credibility, and must accept the verdict of the jury as establishing their version of the transaction.

The plaintiff requested the court to say to the jury: “if the jury finds that the shooting in this case was wanton or vindictive, or malicious or cruel, then the verdict should be for such a sum as should be a proper punishment for the unlawful act,” which was affirmed. The other assignments of error relate to detached parts of the charge of the court.

The boys were trespassing upon the defendant’s property, and, as on former occasions, had been taking apples. While they were defiantly violating the law, the legislature in its wisdom has enacted statutes which specifically measure the punishment for such conduct. Under such acts the landowner cannot determine the manner, character nor degree of the penalty to be imposed. The testimony adduced by the plaintiff was sufficient to warrant the verdict and it has met the approval of the court below in its refusal to grant a new trial. The charge taken as a whole was a fair presentation of the case. The unexplained absence of the defendant’s wife would naturally be noticed by the jury, inasmuch as it was upon her recollection of his presence at Sea Isle City on the day the shooting occurred, that recalled to him the special fact that he was not at home at that time. But the court was clearly within well defined bounds in saying: “ if he did have evidence beside his own that would contradict it, it was very important that they be here. And while there is no presumption against him on that account, yet it is a principle of law, where one has within himself the power to produce evidence of a particular fact in his favor, the jury may infer that if it was produced it would be unfavorable to him. That is as far as it goes. There is no presumption against Rim on that account.” Nor was the defendant’s testimony belittled by saying: “ Mr. Fleer virtually says that he did not do it.” While the defendant denied that he fired the shot, and that he did not own any weapon that would shoot a bullet such as was taken from the plaintiff’s body, it was also urged as a substantive fact that he was not at home at the time but at Sea Isle City with his family. Taken in connection with the context, it must have been understood •by the jury in the same sense in which it was used by the trial judge, as synonomous with, in effect, practically, and to all intents and purposes, so that it could not mislead a juryman of average intelligence. The facts were presented without any intimation of the impression or effect they made on the court, and its general effect was to submit the disputed facts under all the evidence to the jury.

In regard to the charge of the court in defining the measure of damages, it must be kept in mind that the first and vital question was, — did the defendant fire the gun as testified to by the plaintiff and the other eyewitness ? This fact found against the defendant, his other testimony would naturally be ignored, and the jury would then be dealing with the facts as thus found; a man deliberately going into his house to secure a deadly weapon, and when within a killing distance, shoots twice diréctly at the body of an unarmed boy who was going away from him.

Under such facts, the rule laid down by the court was amply justified by many authorities, as indicating such wanton recklessness, vindictiveness, and willful cruelty as would justify the jury in assessing punitive damages. It was the duty of the court to explain the kind of damages the plaintiff was entitled to recover, if any; and for the jury to ascertain the facts to which the instructions should be applied: Hawes v. O’Reilly, 126 Pa. 440; Greeney v. Penna. Water Co., 29 Pa. Superior Ct. 136.

None of the assignments of error is sustained and the judgment is affirmed.


author: Beaver, J.,

text:
    Rosengarten’s Estate.
    March, 12, 1906:

      Executors and administrators — Decedents’ estates — Power of sale — Power to confess judgment — Judgment.
    An executrix who is given a life interest in real estate, and an unrestricted power of sale of all the real estate of a decedent, has no power to bind the real estate by the confession of a judgment, and particularly for a claim, which has, by lapse of time, lost its statutory lien upon the real estate.
    Argued Dec. 6, 1905.
    Appeal, No. 71, Oct. T., 1905, by Clara Rosengarten, from decree of O. C. Schuylkill Co., July Term, 1904, No. 41, dismissing exceptions to adjudication in Estate of Henry Rosengarten, deceased.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to adjudication. Before Dunn, P. J.
    The opinion of the Superior Court states the facts.

      Error assigned was decree disallowing the judgments and dismissing exceptions to the adjudication.

      Charles R. Breckons, for appellant.
    — An absolute and unrestricted power to sell includes a power to mortgage: Zane v. Kennedy, 73 Pa. 182; McCreary v. Bomberger, 151 Pa. 323.
    In Sugden on Powers, page 447, it is held that “ the execution of a power will be good, though it falls short of the full extent of the authority.” And in 4 Kent’s Com., *148: “ A power to appoint land has been held to be well executed by creating a charge upon it.”
    We believe that the decision of this court, in holding that a power of sale includes the power to mortgage, is based upon these principles, and that they apply with the same force and effect to a judgment as to a mortgage.

      A. W. Schalck, for appellees.
   Opinion by

Beaver, J.,

The question stated by the appellants for our consideration is, “ Has an executrix, who is given a life interest in real estate, and an unrestricted power of sale of all the real estate of a decedent, power to bind the said real estate by the confession of a judgment?” In order to state the question fully it is necessary to add, for a claim which has, by lapse of time, lost its statutory lien upon said real estate.

From the facts, as found by the court below and stated in its opinion, Henry Rosengarten, the decedent, whose estate was distributed, died May 10, 1893. At the time of his death he was indorser for one of his sons upon two several notes held by the Miners’ National Bank of Pottsville. • After the death of the decedent, these notes were renewed from time to time by William Rosengarten and Elizabeth Rosengarten, widow of the decedent, until 1899, when they were further renewed by the maker and Elizabeth Rosengarten who signed as an individual and also in her capacity as executrix. A judgment was confessed by the executrix on December 26,1899, for the amount of these notes, and the assignee of that judgment claims it out of the fund arising from the sale of the real estate of the decedent, under proceedings in partition.

The claim of the appellants is that the executrix, having an unrestricted power of sale, secured thereby the power to mortgage, and that the confession of a judgment is the exercise of no greater power.

That an absolute and unrestricted power to sell includes a power to mortgage is well settled in Pennsylvania: Lancaster v. Dolan, 1 Rawle, 231, in which Chief Justice Gibson says: “ But a power to sell implies a power to mortgage, a mortgage being a conditional sale. And it would seem, for the same reason, that the power to charge will no't imply a power to mortgage.” See also Zane v. Kennedy, 73 Pa. 182; McCreary v. Bomberger, 151 Pa. 323.

If a power to charge will not carry an implication of a power to mortgage, how much less will an implied power to mortgage support an implied power to charge ? An implication founded upon an implication is much like a presumption drawn from a presumption, which cannot be : 6 P. & L. Dig. of Dec. 10,329. The confession of a judgment by the executrix, therefore, was not in our opinion in any sense an exercise of the power to sell granted by the will.

In the late case of Bowman v. Knorr (No. 2), 206 Pa. 272, it was held, that: “A judgment obtained on an action against an executrix, begun more than five years after the death of the - decedent, is. not a lien on the decedent’s real estate, and is, therefore, not entitled to participate in the distribution of a fund arising from the sale of such real estate.” In what better position is a judgment against the estate of the decedent, upon a claim which has lost its lien upon the real estate, secured by confession by the executrix?

By accepting the indorsement of the decedent’s widow and carrying the notes of the son in that manner for a period exceeding five years, the time limit under the act of 1834 which governs in this case, the bank released its lien upon the real estate of the decedent, and its assignee, who was the claimant in the distribution in the court below, stands, of course, in no better position than the assignor.

The decree of the court below is affirmed and the appeal dismissed at the costs of the appellants.


author: Henderson, J.,

text:
    Coyle v. Snellenburg, Appellant.

      Malicious■ prosecution — Grounds for arrest — Justification—Probable cause.

    An arrest for a crime or misdemeanor can only be justified when such a state of facts was known at the time the prosecution was undertaken, as would induce a person of ordinary caution and prudence to entertain an honest belief and strong suspicion of guilt. There must be such an appearance of guilt arising from facts and circumstances as to produce belief. This appearance may arise from facts misapprehended or misunderstood, but it must be of such a character as moves the mind of a person of ordinary prudence to entertain the belief of guilt.
    A prosecutor should have information with such directness and certainty as to gain credit with prudent men of the existence and susceptibility of proof of such facts as show guilt, or which on proper advice he supposed would constitute guilt.
    The representations of a third party as to matters not tending to establish the guilt of the accused, do not amount, without further investigation or inquiry, to probable cause.
    A boy thirteen years old was employed to assist the driver in a department store in delivering packages on which money was to be collected. At the end of a particular day the driver claimed “something like $53.60” from the boy, who accounted for “$43.00 and something" and said that was all he got. The driver reported the alleged shortage to his employers. The driver was not able to state within one hundred pieces the number delivered during the day. An agent of the owners of the store swore out a warrant, and the boy was arrested towards night, taken to the store where he was detained for an hour and three-quarters, and there examined, and was only released when his mother appeared and insisted on his discharge. No effort was made to take him before a magistrate for a hearing. Held, that the case was for the jury, and that a verdict and judgment for $150 should be sustained.
    Argued Oct. 10, 1905.
    Appeal, No. 238, Oct. T. 1904, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 3,656, on verdict for plaintiff in case of John J. Coyle, by his father and next friend, John J. Coyle, and John J. Coyle v. Nathan Snellenburg et al., trading as N. Snellenburg & Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for malicious prosecution. Before Martin, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $150. Defendant appealed.

      Errors assigned among others were (3) in refusing binding instructions for defendant; (4) that the verdict was excessive.

      Robert W. Archibald, Jr., with him Simpson & Brown, for appellants.
    — The admitted facts showed that Schell, the defendant’s detective, had probable cause for swearing out a warrant, and a verdict should have been directed for defendants: Mahaffey v. Byers, 151 Pa. 92; Scott v. Dewey, 23 Pa. Superior Ct. 396; Huckestein v. Ins. Co., 205 Pa. 27; Smith v. Ege, 52 Pa. 419; Cooper v. Hart, 147 Pa. 594; Bernar v. Dunlap, 94 Pa. 329; Bryant v. Kuntz, 25 Pa. Superior Ct. 102.
    Plaintiff’s contention was that it was the duty of the detective to take the boy without unreasonable delay before a magistrate, which was not done, and that meanwhile a confinement in the defendant’s store rather than in a jail or the juvenile house of detention was illegal. Whether or not the delay was unreasonable is a question of law for the court: Kirk v. Garrett, 84 Md. 383 (35 Atl. Repr. 1089); Diers v. Mallon, 46 Neb. 121 (64 N. W. Repr. 722); Hopner v. McGowan, 54 N. Y. Superior Ct. 98; Mulberry v. Fuellhart, 203 Pa. 573.
    March 12, 1906:

      William T. Connor, with him John R. K. Scott, for appellee.
    —It is submitted that defendants cannot set up the defense that they acted on representations of a third party. Lee, who gave the information, was their servant and they are liable for his acts. He was in full charge of the wagon and had full authority to protect his employer’s property. If someone attempted to steal it he had authority to have them arrested. Such acts were in the line of his duty, and if he acted improperly or unlawfully his employers were liable: Cotton v. Huidekoper, 2 P. & W. 149; Burk v. Howley, 179 Pa. 539.
    There was no error in the trial court leaving to the jury the question whether the detention of the plaintiff was illegal and unlawful and if there was the error complained of was all in the defendants’ favor: Twilley v. Perkins, 77 Md. 252 (26 Atl. Repr. 286).
   Opinion by

Henderson, J.,

The plaintiff was employed to assist John Lee, the driver of one of the defendants’ delivery wagons, in the delivery of goods. Some of the parcels, and perhaps all of them, were sold to be paid for on delivery. The driver had charge of the wagon and was responsible for the delivery of the goods. There were 300 or 400 packages to be delivered and the plaintiff and another boy assisted the driver in distributing them. Two deliveries were made during the day and the whole day was consumed in completing the work. Parcels were given to the plaintiff by the driver, to be delivered to the purchasers and with each parcel a memorandum, called a voucher, showing the amount to be collected, to be torn off and kept. No record was kept of the packages delivered to the plaintiff, the driver depending on his memory with reference thereto. Settlement was not made between the boys and the driver until night. The driver claimed “ something like $53.60 ” from the plaintiff, who accounted for “ $43.00 and something ” and said that that was all he got. A less amount was first produced and the driver told him to put his hand in his pocket and see if- he could get any more. He got some more money from another pocket, making up the amount which he accounted for. The driver thereupon reported the alleged shortage to Mr. Slook, who had charge of the deliveries for the defendants. Slook conferred with Schell, a detective in the service of the defendants. The information which he gave Schell was that the plaintiff was a helper and that his driver reported him $10.00 short. Lee, the driver, testified that he reported to Slook that the plaintiff was “some money short,” and that Slook said he would send the boy out and see what he could find. Schell talked with Lee who told him he had given the packages to the boy and that he did not return the money; thereupon Schell made a complaint charging the plaintiff with having embezzled $10.20 collected by him for the defendants, and obtained a warrant on which he arrested the plaintiff about six o’clock in the evening. After the arrest he took the plaintiff to the defendants’ store where he was detained, as claimed by the plaintiff, for about two hours and interrogated in regard to the delivery of the goods and his collections. The plaintiff’s mother, having heard of the arrest, went to the office of the defendants where the boy was and protested against his detention and declared the boy did not have any money belonging to the defendants and that she would be responsible for his return to them to investigate the subject of the alleged loss. An effort Avas afterwards made by the plaintiff and defendants to trace the packages, but the evidence does not disclose the final result.

The appellants complain that the court erred in not giving binding instructions for the defendants, in submitting the question of probable cause to the jury and in the instruction to the jury as to the plaintiff’s right to recover for the illegal detention. The prosecution was commenced by the agent of the defendants and they are responsible for the legal propriety of his act. That could only be justified when such a state of facts was known at- the time the prosecution was undertaken as would induce a person of ordinary caution and prudence to entertain an honest belief and strong suspicion of guilt. There must be such an appearance of guilt arising from facts and circumstances as to produce belief. This appearance may arise from facts misapprehended or misunderstood, but it must be of such, a character as moves the mind of a person of ordinary-prudence to entertain the belief of guilt. This much is demanded in the interest of personal security, and the cause of public justice does not require a larger privilege. There must be reasonable ground for this belief and where that exists, there is probable cause.

The case against the plaintiff was instituted on the representations of the driver, Lee; but Lee did not tell Slook that the plaintiff had embezzled money. According to Lee’s showing at the time of the settlement there should have been about $53.60 returned. The plaintiff accounted for a little more than $43.00 and said: “ That is all I got.” Lee said he needed more money than that and told the plaintiff to keep the money until Monday morning. The attention of Slook was then called to the subject and he placed the case in the hands of the detective, who testified that Lee told him he had given the packages to the boy and he did not return the money. Nothing was said as to the number of packages received by the boy, nor the persons to whom they were to be delivered; nor was any inquiry made whether any payments had been made to the boy, which were not accounted for. Lee does not seem to have been able to state within 100 pieces the number of packages delivered that day. To use his own language: “We started out in the morning, about half past eight, with about 300 to 400 packages and we did not settle up until night; we had two deliveries. ” No one alleged that the boy had received money for which he had not accounted and the whole case rested on the allegation of Lee, that according to his recollection of the packages which the boy was to deliver, there was a shortage of about $10.00 in the amount turned in by him. From the point of view of the defendants, there was as much reason for suspecting Lee as the plaintiff, except for Lee’s declaration that the plaintiff had not accounted for all the money which he should have received. No one, however, suspected Lee of embezzlement; nor was there any evidence on which a prosecution against him should have been undertaken. The most that Schell knew when he commenced, the prosecution was that Lee said there was a shortage in the plaintiff’s account. This does not come up to the necessary requirement in a prosecution charging one with a serious crime. “ A prosecutor should have information with such directness and certainty as to gain credit with prudent men of the existence and susceptibility of proof of such facts as show guilt or which, upon proper advice, he supposed would constitute guilt:” Stier v. Labar & Featherman, 16 W. N. C. 273. It does not appear that anything was developed tending to convict the plaintiff of the charge preferred against him after his arrest, but the case is to be determined on the facts as existing at the time the complaint was made. Viewing it in that light, the court would not have been warranted in instructing the jury that there was probable cause for the defendants’ action. No investigation was made to ascertain whether Lee was mistaken or not; nor was the advice of counsel taken as to the advisability of a prosecution. The defendants have no cause to complain that the court submitted the question of probable cause to the jury. The plaintiff denied that he had failed to account for all the money he received, and Lee and Slook had knowledge of this fact before the case was given to the detective. The latter took it for granted that Lee was not mistaken and was telling the truth and without further investigation proceeded with the case. On the evidence the court might have said to the jury, that a man exercising ordinary prudence and caution would not have made an important criminal charge on the uncorroborated testimony of an interested party, who did not communicate any fact from which an inference of guilt would arise. The appellants contend that it appears from the testimony of the plaintiff, himself, that probable cause existed. The part of the evidence referred to is the statement of the plaintiff on cross-examination, that Lee claimed that the witness should be charged with $53.60 and that he had handed in a smaller sum; and this is, indeed, the substance of what was claimed by the defense as the probable cause leading to the prosecution; but this, as we have seen, was not a charge of embezzlement and was a condition that would have arisen as well in case of a mistake by Lee or the plaintiff in the delivery of the goods. The representations of third parties have been held in some instances to justify a prosecution, as in Smith v. Ege, 52 Pa. 419, where repeated investigations were made and the facts submitted to counsel on whose advice the prosecution was instituted; and in Bernar v. Dunlap, 94 Pa. 329, where the prosecution was commenced on the information, by a reputable witness, to the prosecutor and the magistrate who issued the warrant, that he saw the stolen property in the possession of the person accused. In Bryant v. Kuntz, 25 Pa. Superior Ct. 102, the prosecutor was notified by an alderman of the city that the plaintiff had been guilty of cruelty to animals; and the source of his information was given at the same time, with the request that an investigation be made. The prosecutor, who was acting as agent for the society for the prevention of cruelty to animals, made an investigation and as a result of that investigation made the complaint. These cases do not go far enough to sustain the proposition that the representations of a third party as to matters not tending to establish the guilt of the accused, amount, without further investigation or inquiry, to probable cause.

■ The court was not in error in permitting the jury to take into consideration the detention of the plaintiff. The arrest was made after dark. The detective took his prisoner, who was about thirteen years old, to the private office of the defendants, where he was detained, according to his testimony, an hour and three quarters. While there, he was examined with reference to the charge against him. He was without the presence of his friends or the advice of counsel and no effort was made to take him before the magistrate for a hearing. It is said that a hearing was not practicable that evening because of the absence of the magistrate from his office. This fact would not justify the officer holding the warrant in taking the boy to the defendants’ store and subjecting him to an- inquisitorial process. It was apparently known by the officer that a hearing could not be had that night and the reasonable explanation of his action in taking the boy to the store is that he hoped to obtain from him some incriminating admissions. When we consider that this officer was an employee of the defendants and that the boy was taken to the defendants’ store and there examined for a considerable time about the money and that he was only released when his mother appeared and insisted-on his discharge, we think the court was nqt in error in charging as set forth in the first assignment. We get light on the motive of the proceeding in the testimony of Schell: “ Q. When you were commanded by the magistrate to bring the boy before him, why didn’t you take him there? A. The magistrate does not want anything to do with these things. Q. Why didn’t you take him there ? A. That is for the firm to decide upon. If they felt disposed to let the boy go, that is their lookout. ”

We do not consider the verdict excessive in view of the facts found by the jury.

The judgment is affirmed.