text:
    Dodson, Appellant, v. New York Life Insurance Company.

      Contract — Principal and agent — Commissions—Insurance agent.

      ■ Where a contract between an insurance company and its agent provides in a printed clause that the agent shall have a commission on both original and renewal cash premiums during his continuance as agent, and another typewritten clause refers to the previous clause, and -provides for certain commissions on renewal premiums on insurance secured by the agent under the plans designated in the previous clause, the provision in the first clause that commissions shall be paid only during the continuance - of the agency, is to be read into the second clause, and applies to the commissions on renewal premiums therein specified.
    Argued April 15, 1908.
    Appeal, No. 22, April T., 1908, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. Term, 1903, No. 369, for defendant on ease stated in suit of E. E. Dodson v. New York Life Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed'.
    Case stated to determine liability for commissions on insurance premiums.
    The opinion of the Superior Court states the case.
    MacFarlane, J., filed the following opinion:
    The controversy in this case turns upon the construction of secs. 21 and 23 of the agreement. Sec. 21 allows the plaintiff commissions on premiums which shall be received by the insurance company during plaintiff’s continuance as its agent, and if there is nothing more in the case he cannot recover. That section further prescribed the percentage to be paid to the plaintiff upon the original cash premiums for the first year.
    Sec. 23 refers to the 21st, and it is argued that as this is a contract for one year only, sec. 23 is without meaning if the 21st be read with it. It is in brief that if the plaintiff secured during the first year of this agreement new insurance on the plans designated in sec. 21, subject to all the terms and conditions of such section, amounting to $25,000, upon which the original premiums have been paid to the company, then the plaintiff shall be entitled to five per cent on renewal premiums. Sec. 21 applies to both original and renewal cash premiums, and sec. 23 fixes the percentage to be received if the amount written should reach $25,000, but the limitation that this commission shall be payable only during his continuance as agent applies as well as in the case of original premiums.
    This conclusion is not changed by the fact that sec. 21 was part of the printed form, while sec. 23 is in writing. This gives to sec. 23 greater weight, of course, and were the two sections inconsistent or antagonistic, sec. 23 would govern, but that is not the case. We cannot agree with the contention that sec. • 21 applies only to original business, for renewal cash premiums were especially mentioned. The percentage on renewals is not fixed in that section, nevertheless we think it applies. It was evidently in contemplation of the parties that the contract of employment should be renewed from year to year and the percentage on renewals was an inducement held out to the agent to continue with the company.
    As this case turns on the construction of a written contract, we do not find any assistance in the cases cited by counsel. The contract is not ambiguous, nor is it a case of an enforcement of a forfeiture.
    We are of the opinion that judgment should be entered in favor of the defendant and against the plaintiff.

      Error assigned was the judgment of the court.

      Frank Ewing, with him Geo. M. Hartón, for appellant.—
    Upon the general proposition that a plaintiff is entitled to renewal commissions, even though his agency contract may be canceled, see 1 Joyce on Insurance, sec. 629; Machette v. Hodges et al., 6 Phila. 296; Hale v. Ins. Co., 46 Hun (N. Y.), 274; Hercules Mut. Life Assur. Soc’y v. Brinker, 77 N. Y. 435; Ensworth v. Ins. Co., 1 Flippin, 92; Cunningham v. Union Cas. & Surety Co., 82 Mo. App. 607.

      J. A. Wakefield, for appellee. —
    We insist that no authority is required to support the defendant’s contention, in view of the plain language of the contract. The following, however, is a list of cases which support the defendant's position: Wightman v. New York Life Ins. Co., 119 App. Div. 496; Aldrich v. New York Life Ins. Co., 121 App. Div. 18; Shaw v. Home Life Ins. Co., 49 N. Y. 681; Stagg v. Mutual Life Ins. Co., 77 U. S. 589; Burleson v. N. W. Mutual Life Ins. Co., 86 Cal. 342 (24 Pac. Repr. 1064); King v. Raleigh, 100 Mo. App. 1; Spaulding v. N. Y. Life Ins. Co., 61 Me. 329; Park & Iverson v. Piedmont, etc., Ins. Co., 48 Ga. 601; Castleman v. Southern Mut. Life Ins. Co., 14 Bush (Ky.), 197; Mutual Benefit Life Ins. Co. v. Charles, 4 Ins. L. J. 265; Phœnix Mut. Life Ins. Co. v. Holloway, 51 Conn. 310; N. Car. State Life Ins. Co. v. Williams, 91 N. Car. 69; Ballard v. Travelers’ Ins. Co., 119 N. Car. 187; Scott v. Travelers’ Ins. Co., 63 Atl. Repr. 377 (Md.); Chase v. N. Y. Life Ins. Co., 188 Mass. 271; Jacobson v. Mut. Life Ins. Co., 61 Minn. 330; Andrews v. Travelers’ Ins. Co., 70 S. W. Repr. 43 (Ky.).
    July 15, 1908:
   Opinion by

Orlady, J.,

' The plaintiff was a licensed insurance broker and agent. He entered into a contract, in writing, with the defendant, to represent it in Armstrong county, Pa., under the terms and upon the conditions as set forth in an article of agreement, dated January 3, 1899, and he tendered his resignation as such agent on January 28, 1903. A case stated was agreed upon, to which is attached the article of agreement, and after hearing, a judgment was entered in favor of the defendant, the question involved being; whether under the terms of the agreement, the plaintiff was entitled to the renewal commissions on policies which were written during his agency, but which commissions were not paid until after his resignation as agent was accepted by the defendant.

The agreement specified the terms and conditions under twenty-four separate heads, the twenty-first and twenty-third being the only ones affecting the plaintiff’s right to recover. By the twenty-first it is stipulated that he shall be allowed the following- compensation: “ A commission on original or renewal cash premiums which shall, during his continuance as said agent of said party of the first part, be obtained, collected and paid to and received by said party of the first part, up to and 'including - years of insurance (should his agency continue so long) on- policies of insurance effected with said party of the first part by or through said party of the second part.’.’ Commissions being specified at the rate of from forty-five to - fifty-five per cent of the annual premiums. We think it quite clear that the blank left in this section was intended to be filled by the word “first.”

By sec. 23 it is provided, that if the plaintiff “Secure, during the first twelve calendar months of the • continuance of this agreement, new insurance, on the plans designated in' sec. 21 hereof, subject to all the terms and conditions of said section, amounting to the sum of twenty-five thousand dollars, upon which the original cash premiums for the first year of insurance have been paid to and received by the said party of the first part, during said period, or within thirty days thereafter, said party of the. second part shall be entitled to a commission of five per cent on such renewal premiums of business written as aforesaid, as shall be renewed for the second year of assurance, and for every additional twenty-five thousand dollars, procured as aforesaid; said renewal shall be intended to include the additional years of insurance not in all to extend beyond the fifth year of assurance,” etc.

The twenty-first paragraph is a part of the printed form used by the company, but the twenty-third was a special provision prepared in typewriting, .and attached to the contract, and the two clauses are so directly related to each other that both must be considered in interpreting it. The five per cent commissions on renewal premiums of business written as aforesaid, cannot refer to any other businfess than that stipulated for in sec. 21. The premiums paid on the sum of $25,000, referred to in see. 23, necessarily refer to the insurance mentioned in sec. 21, as it is distinctly specified as “new insurance on the plans designated in sec. 21 hereof, subject to the terms and conditions of said section, amounting to the sum of twenty-five thousand dollars,” and by sec. 21 it is directly specified that his .compensation should be a commission on the original or renewal cash premiums, which shall, during his continuance as said agent of said party, be obtained, collected and paid to and received by said party of the first part.

The resignation of the plaintiff effected a cancellation of the contract, and relieved the company of any further liability to him for the renewal premiums on business that had been secured by him, for the reason that sec. 23 provided both for the original and renewal cash premiums, and limited their liability to the time when he was their agent. The terms used áre not ambiguous, the language is clear, and if the terms are harsh and unfair to the plaintiff, he voluntarily entered into the contract and must abide by its provisions.

The judgment of the court below is affirmed.

Rice; P. J., and Porter, J., dissent.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Hall v. Bessemer & Lake Erie Railroad Company, Appellant.

      Negligence — Railroads—Unlighted platform — Passenger.
    When a passenger has alighted from a train the relation of passenger and carrier remains until he has left the premises of the carrier.
    Platforms of a railroad station should at night be reasonably lighted for a sufficient time before and after the arrival of trains to enable passengers to avoid danger. •
    In an action by a passenger against a railroad company to recover damages for personal injuries sustained by falling over a piece of baggage while proceeding across a station platform from a train to a street, the case is for the jury, and a verdict and judgment will be sustained where the evidence tends to show that the three platform lamps were not lighted, that the only light on the platform was that which emanated from a light within the station, that the night was dark, and that if the platform had been properly lighted, the accident would not have occurred.
    Argued April 14, 1908.
    Appeal, No. 185, April T., 1908, by defendant, from judgment of C. P. Crawford Co., Feb. T., 1907; No. 63, on verdict for plaintiff in casé of Francis M. Hall v. The Bessemer & Lake Erie Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Prather, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      George F. Davenport, for appellant. —
    There is not a particle of evidence that the platform was not sufficiently lighted for purposes of safety of the plaintiff, if a stranger had not put an obstruction there. If this were the first act of obstruction by a third party, it requires no citation of authorities to support the proposition that the defendant would not be liable. To enable the plaintiff to recover he must show that the practice complained of has been engaged in by strangers for such a length of time as to give notice to the defendant, express or constructive. The scienter is the gist of the action. In this case the plaintiff stands solely upon constructive notice: P. & R. Railroad Co. v. Hummell, 44 Pa. 375; Fredericks v. Railroad Co., 157 Pa. 103; Southern Ry. Co. v. Rhodes, 86 Fed. Repr. 422; Carpenter v. Railroad Co., 97 N. Y. 494; Ayres v. Railroad Co., 77 Hun (N. Y.), 414; Green v. Railroad Co., 214 Pa. 240.

      J. W. Smith, with him F. J. Thomas, for appellee. —
    Station houses as well as platforms, etc., should at night be reasonably lighted for a sufficient time before and after the arrival and departure of trains to enable passengers to avoid danger: Stuart v. Railroad Co., 37 Am. Rep. 753; Louisville, etc., Ry. Co. v. Treadway, 40 N. E. Repr. 807; Sullivan v. Canal Co., 72 Vt. 353 (47 Atl. Repr. 1084); Peniston v. Railroad Co., 34 La. Ann. 774, 777; Washington, etc., R. R. Co. v. Hickey, 166 U. S. 521 (17 Sup. Ct. Repr. 661); Conowingo Bridge Co. v. Hedrick, 95 Md. 669 (53 Atl.Repr. 430); Alabama G. S. R. R. Co. v. Arnold, 80 Ala. 600 (2 So. Repr. 337); Waller v. Railway Co., 59 Mo. App. 410; Hoag v. Railroad Co., 85 Pa. 293.
    The question as to whether the platform was sufficiently lighted was a question of fact for the jury: Wallace v. Wilmington, etc., R. R. Co., 8 Houston (Del.), 529, (18 Atl. Repr. 818).
    If there was a custom of placing obstacles upon the platform that had existed and continued for such a length of time that defendant knew or should have known thereof, it was •obliged to provide lights to enable passengers to avoid the same, even if such acts were not such as should reasonably have been foreseen: Snow v. Fitchburg R. R. Co., 136 Mass. 552; Carpenter v. Boston & Albany R. R. Co., 97 N. Y. 494; Shaw v. Chicago & G. T. Ry. Co., 123 Mich. 629 (82 N. W. Repr. 486 ; 49 L. R. A. 308); Exton v. Central R. R. Co., 62 N. J. L. 7 (42 Atl. Repr. 486).
    May 15, 1908:
    There was ample evidence of such custom, and for that reason alone, the court cannot be convicted of error in refusing defendant’s point in bar of plaintiff’s right of action.
   Opinion by

Beaver, J.,

Upon a dark evening in January of 1906, the plaintiff alighted from a passenger train of the defendant at its station in Conneautville. The platform of the station is some eighty feet in length. It appears by the testimony, and is practically conceded in the appellant’s argument, that, although there were three outside lamps at the station buildings, none of them were lighted on this occasion and the only light upon the platform came from a lamp in the operator’s room. In making his way from the train over the platform to the street, the plaintiff struck his foot against an obstacle said to be a suit case belonging to another passenger which had been deposited by the porter of the hotel. The plaintiff was seriously injured, his kneecap being broken, and was confined to his house for a number of weeks attended by a surgeon, and losing time from his profession and suffering pain and inconvenience.

The statement of claim bases the plaintiff’s right to recover upon the failure of the company to light the station premises sufficiently and in allowing the obstruction to be placed upon the platform. The court narrowed the right of recovery to the failure of the defendant to light the platform, so as to enable the plaintiff to safely make his way.

The plaintiff’s third point, which was: “If the jury find from the evidence that the night of January 5, 1906, was a dark night at the time of the arrival of the southbound train on defendant’s railroad at the Conneautville station, and that it -was. necessary that the passenger platform at said station be reasonably well lighted, in order .to render the same ordinarily safe for passengers alighting from said train and seeking egress from said train to the street, and that defendant at -said time failed and omitted to provide any light for said platform and that the plaintiff was a passenger on said train and, while walking along said platform towards the street, without negligence on his part, he stumbled and fell over some baggage or sample cases deposited on said platform so as to create an obstruction thereon, and received the injuries complained of in this suit, and that had said platform been'reasonably well lighted at said time, said fall and injury would have been averted, then the jury should find for the plaintiff,” was affirmed. The answer to this point is not assigned for error. The only assignment is the failure of the court to affirm the defendant’s fifth point, which was: “That under the law and the evidence the verdict must be for the defendant.”

The appellant’s argument is based upon five distinct propositions: “ (1) That the platform was in good condition; (2) That it was sufficiently lighted for the safety of plaintiff, had not the ■wrongful act of Boyles intervened; (3) That appellant was not required by law to anticipate his act; (4) That there was not sufficient evidence of such acts to impute notice to the defendant; (5) That, without such notice, the defendant is not liable and its fifth point should have been affirmed.”

The court practically eliminated the last three propositions, by affirming the defendant’s third point, which was: “There was no duty resting on the defendant company to anticipate •wrongful acts of third parties in placing obstructions on the platform and to take precaution against such acts, and there is no evidence in this case of such a succession of such acts for a period sufficiently long to charge the defendant with notice.” ■

The first proposition, that the platform was in good condition, except as to the lighting, was not seriously denied. The second-proposition, that it was sufficiently lighted for the safety of plaintiff, had not Ihe wrongful act of Boyles intervened, is a practical admission of the necessity for submitting this question to the jury. What is sufficient light, under the circumstances, for a railroad station, situated as this was? This is clearly not a question of law. It was alleged on the part of the plaintiff that there was no light whatever, except such as emanated from an inside light maintained for the use of the telegraph operator. The defendant, by the very form of its proposition, admits that some light was necessary and asserts that the light from the window in the operator’s room was sufficient. This was clearly for the jury, under the law, as it has been established by numerous decisions, and as it was practically held by the court below, without complaint of the appellant here.

“The relation of carrier and passenger commences when a person, with the good-faith intention of taking passage, and with the express or implied consent of the carrier, places himself in a situation to avail himself of the facilities for transportation which the carrier offers. In case of a railroad, this relation arises not merely when the passenger enters the train with the ticket already purchased, giving him the contract right to ride, but when he enters upon the premises of the carrier with intention to take a train in due course: ” 6 Cyc. 536.

It is equally true that, when a passenger has alighted from a train, the relation of carrier and passenger remains until he has left the premises of the carrier.

“The care required of the carrier for the protection of the passenger on his premises involves reasonable care to provide and maintain safe and adequate station-houses, platforms, walks, steps, and landings for use in waiting for, approaching, and leaving trains, or other means of conveyance in which the transportation is to be or has been furnished. Thus, it may be necessary for a railroad company, at the usual stopping places, to furnish platforms suitable and adequate for the purpose, and to stop the train at such platform. Station-houses, as well as platforms, walks and other approaches, should at night be reasonably lighted for a sufficient time before and after the arrival and departure of trains to enable passengers to avoid danger. The carrier must use reasonable care in avoiding or controlling crowds of persons at its stations imperiling the safety of passengers. The carrier will be liable if a passenger is injured by reason of the throwing of mail pouches from postal cars in such a way a.? to involve danger to passengers, if it has permitted postal clerks carried on its trains to adopt an unsafe method of delivering such pouches: ” 6 Cyc. 608.

Both of these fundamental propositions are supported by numerous authorities in many states and are not .questioned by the defendant.

It was held in Nicholson v. Railway Co., 3 Hurlstone & Coltman’s Reports, 534, quoted by Hutchinson on Carriers sec. 936: “Where the plaintiff was put down by the road on the side of the train opposite the station, and in attempting to pass around its rear so as to reach the station while the train remained stationary, in the dark fell over some hampers which had been permitted to remain near the platform and was injured, it was held, in an action by him against the company for not sufficiently lighting its station, and for not providing proper and sufficient accommodations for its passengers to depart safely from the station after their arrival, that he could recover for the injury.” This ruling has been followed almost universally in this country. As already intimated, the duty of lighting the station is not denied, but it is alleged that it was sufficiently lighted, because of the light maintained in the operator’s room.

The verdict in this case establishes three things: (1) that the defendant was negligent in failing to light the platform upon which the plaintiff alighted from its train; (2) that the plaintiff was not negligent; and (3) that the injury to the plaintiff would have been averted, if the platform had been reasonably well lighted at the time. These propositions are all contained in the plaintiff’s third point, which was affirmed, and, as we have already said, the answer of the court thereto is not assigned for error. It is not an answer to these facts, which are fixed by the verdict of the jury, that the accident would not have happened, if a third party had not deposited a suit case or other item of baggage over which the plaintiff stumbled and fell. The defendant’s liability for that act is not determined in this case and it is not necessary, therefore, for us to discuss it. As already said, the affirmation of the defendant’s third point eliminated this question from the case. The judgment rests entirely upon the negligence of the defendant, the freedom from negligence of the plaintiff and the fact, as found by the jury, that, if the platform had been reasonably well lighted, the accident would not have occurred. These three facts taken together we think establish the liability of the defendant, without more.

In view of the general principles which we have stated, we think the court would not have been justified in affirming the defendant’s fifth point and, as there are no assignments of error, either as to the general charge or the answers to any of the plaintiff’s or other of the defendant’s points, we think the case was properly submitted to the jury.

Judgment affirmed.


author: Rice, P. J.,

text:
    Philadelphia to use v. Bilyeu, Appellant.

      Practice, C. P. — Trial—Motion for judgment non obstante veredicto —Points for charge — Act of April 22,1905, P. L. 286.
    Under the Act of April 22, 1905, P. L. 286, a party has no standing to move for judgment non .obstante veredicto upon the whole record, where he has not at the trial presented a point requesting binding instructions in his favor.

      Practice, C. P. — Trial—Reservation of question of law — Acts of March 28,1835, P. L. 88, and April 22,1863, P; L. 554.
    A party is not entitled to have reviewed the action of the lower court in refusing a motion for judgment non obstante veredicto upon a question of law reserved, where no exception is taken to such action of the court below.

      Road law — Paving—Assessment bills — Defenses—Act of April 19, 1843, P. L. 342.
    Where a city ordinance provides a particular grade for gutters, and for the crown of the pavement in grading and paving streets, unless the chief engineer and surveyors shall certify otherwise, and a contract is entered into by the city with a contractor in accordance with- the terms of the ordinance, the contractor cannot recover the amount of an assessment bill' against an abutting owner, where it appears that during the progress of the work the chief of the highway bureau changed the grade of the gutter and crown so that when the work was finished there was no gutter on one side of the street, and the slope of the pavement was such that the abutting owner suffered a special injury in having all the surface drainage thrown on his side of the street, and there stagnating without being carried to a sewer inlet. In such a case the owner is not estopped because he did not object while the work was under way where he had no knowledge whatever that the chief engineer and surveyor had not certified to the change in the specifications of the contract; nor is the owner barred from setting up as a defense his special injury, because the work had been accepted by the city officials; nor is he barred from setting up such a defense by anything contained in the Act of April 19, 1843, P. L. 342.
    Argued Oct. 18, 1907.
    Appeal, No. 161, Oct. T., 1907, by-defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1900, No. 422, M. L. D., on verdict for plaintiff in case of city of Philadelphia to use of Pennsylvania Asphalt Paving Company v. George A. Bilyeu.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Scire facias sur municipal lien for paving. Before Sulzberger, P. J.
    At the trial the trial court gave a full charge, ending with a direction to find for the defendant. Plaintiff’s counsel thereupon appealed to the conscience of the court to reverse the direction upon the ground that if the appellate court should reverse, the plaintiff could .get no advantage from the victory, since he would be defeated in his remedy on another trial by virtue of limitation provisions in statutes. For a similar reason judgment was entered on the verdict for the plaintiff.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $359.20. Defendant appealed.

      Errors assigned were in the following form:
    1. The learned judge of the court below erred in directing the jury to find a verdict for the plaintiff.
    2. The learned judges of the court below erred in deflying the defendant’s motion for judgment non obstante veredicto upon the whole record.

      J. Frederick Hartman, for appellant. —
    It needs but the citation of two cases to show that the defense offered by the defendant is proper and tenable in'this case: Pittsburg v. Walter, 69 Pa. 365; Phila. to use v. Jewell, 135 Pa. 329.
    July 15, 1908:
    The ordinance of 1885 entitles the defendant to the kind of pavement therein prescribed and it is not within the power of any official to deprive him of that right. The city itself could not do it without repealing the ordinance, and surely the contractor could not do so: Philadelphia v. Brooke, 81 Pa. 23; Scranton Sewer, 213 Pa. 4; Philadelphia v. Pemberton, 208 Pa. 214.

      Walter Biddle Saul, with him E. 0. Michener, for appellee.—
    It is respectfully submitted, on behalf of the appellee, that the judgment of the lower court should be affirmed. The work for which the claims were filed was done by the use plaintiff and ratified by the city of Philadelphia and the defense which was attempted to be made at the trial is one which the defendant is not competent to make under the law: Philadelphia v. Burgin, 50 Pa. 539; Philadelphia y. Brooke, 81 Pa. 23; Philadelphia v. Evans, 139 Pa. 483; Scranton v. Jermyn, 156 Pa. 107; Fell v. Philadelphia, 81 Pa. 58; Philadelphia v. Gorgas, 180 Pa. 296; Erie v. Moody, 171 Pa. 610; Harrisburg v. Shepler, 7 Pa. Superior Ct. 491; Wabash Avenue, 26 Pa. Superior Ct. 305; Pittsburg v. MacConnell, 130 Pa. 463; Harrisburg v. Baptist, 156 Pa. 526; Hutchinson v. Pittsburg, 72 Pa. 320.
   Opinion bt

Rice, P. J.,

This was a scire facias upon a municipal claim for paving the cartway of the street upon which the defendant’s premises abut. The defendant pleaded non assumpsit, payment with leave, etc., with notice that he would offer evidence of the special matter set forth in the affidavit of defense. Verdict having been rendered for the plaintiff, the defendant moved for judgment in his favor non obstante veredicto. This motion was dismissed and judgment was entered in accordance with the verdict, whereupon the defendant took this appeal. The only matters assigned as errors are, first, the direction to. the jury to render a verdict for the plaintiff; second, the dismissal of the defendant’s motion “for judgment non obstante veredicto upon the whole record.”

The Act of April 22, 1905, P. L. 286, provides, inter alia, that whenever upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may, within certain limitations as to time, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment non obstante veredicto upon the whole record. The motion, for judgment ought to be but is not set forth at length anywhere in the appellant’s paper-book, and while the docket entries, as printed, show that such motion was made, they do not show by what authority the court was asked to enter the judgment moved for. If) • as may be surmised from the form of the specification of error, the court was asked to exercise the jurisdiction conferred by the act of 1905, the motion was properly refused, because the right there given is conditioned upon the party making the motion having presented, before verdict, a point requesting binding instructions, and the record fails to show that the defendant presented such point.

The power to reserve questions of law, which was given to judges of the district court of Philadelphia by sec. 5 of the Act of March 28,1835, P. L. 88, was extended to judges of the common pleas by the Act of April 22, 1863, P. L. 554, and still remains notwithstanding the act of 1905. But even if it may be inferred from the assignment of error that the defendant’s motion was for. judgment non obstante veredicto upon, a question of law reserved, the obstacle which prevents him from demanding a review, of the court’s disposition of that motion is that the record as printed in his paper-book fails to show that it was excepted to. This, it has been held in numerous cases and is apparent from the language of the act, is an essential prerequisite to a review by the appellate court of a judgment entered under this act: Miller v. Hershey, 59 Pa. 64; Northumberland County Bank v. Eyer, 60 Pa. 436; Merkel v. Berks Co., 81 * Pa. 505; Yard v. Pancoast, 108 Pa. 384; Central Bank of Pittsburg v. Earley, 113 Pa. 477; Lower Province Live Stock Ins. Assn. v. Weikel, 10 Sadl. Rep. 23; s. c., 11 Cent.Repr. 709; Keefer v. Pacific Mutual Life Ins. Co., 201 Pa. 448.

■ It follows that in either view of the motion the second assignment of error should be dismissed.

But there is no ground for presumption that the judgment was entered under the act of 1863; therefore, although the defendant did not except to the judgment, he is not precluded from pressing - his first- assignment of error which is based on an exception to the charge. We therefore proceed to a consideration of the question whether it was proper to give binding instruction in favor of the plaintiff, and in such consideration the general rule, to which this case is not an exception, must be kept in view that when proof of a fact depends upon oral testimony,-it is the province of the jury to decide under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence: Reel v. Elder, 62 Pa. 308.

In the contract under which the pavement was laid the city agreed to pay the contractor for the paving and contingent work done under the contract “in assessment bills made out and signed by the proper officers, or in warrants drawn upon the city treasury,” the sum of $2.20 per square yard. The contractor paved the street in accordance with the stipulations of the contract, excepting in the particular to which we shall hereafter refer, and after the completion of the work, an assessment bill, showing the amount of the assessment, the number of square yards -of paving for which the defendant was assessed, the rate per square yard, and the frontage of his property on the street, was -delivered to the contractor. It is stated in this bill that the measurements were made by H. M. Fuller, the district surveyor, and it was signed by him. On the back are the written approval of William H. Brooks, chief of the bureau of highways, and the certificate of William A. Fredericks, as assistant commissioner of the district, that the “within work has been done in accordance with existing ordinances.” No question is raised as to these being the proper officers to make.out assessment bills, oras to the regularity of the proceedings relative to the filing of the claim, or the issuing and service of the scire facias. Having referred to the matters which are not in dispute we come to a statement of the facts which the defendant relies upon for his defense.

One of the stipulations of the contract was that the contractor should deliver the materials and do the work “in strict and exact accordance with proposals and specifications” attached to and made part of the contract; two of which specifications were as follows: (1) “The finished grade for the gutters shall be generally five inches below the top of the curb, except where a change is directed by the district surveyor to insure proper surface drainage;” (2) “The crowning or rise of the finished pavement from the gutters toward the center of the street shall be at the rate of two and one-quarter feet per one hundred feet, except at intersections, or where the surface drainage demands a different crown, as may be directed by the district surveyor. Gutter or crown stakes must be set every fifty feet.”

Another stipulation of the contract was that the contractor should execute and finish the paving “in accordance with all the ordinances and resolutions of councils relating to paving,” and to “fully and faithfully comply with all their provisions,” one of which ordinances, adopted in 1885, contains this provision: “Whenever a street is graded or paved it shall be so finished and shaped that the gutters will be five inches beloyv the regulation curb elevation, except at city inlets and in streets where the chief engineer and surveyor shall certify that a different depth of gutter is advisable. The crown of the street or cross slope from the middle portion of the street to the gutters shall be at the rate of two feet per one hundred feet of sheet asphalt or a continuous concrete pavement.”

There was evidence from which the jury could have found, if the question had been submitted to them, that the district surveyor directed one of his assistants to set the gutter and crown stakes for the paving of the street; that this assistant first set the stakes so as to make the gutters and slope of the pavement conform substantially to the specifications of the contract and the ordinance of 1885; that after the work of grading was commenced the contractor was stopped, and this assistant of the district surveyor gave the contractor new lines for grading and paving this portion of the street on which the defendant’s property abuts, which did away with the crown of the street, and while leaving a six-inch gutter on his side of the street left no gutter on the opposite side; that this change of lines was not made at the request or instance of the contractor; and that the contractor completed the work in accordance with this change.

In rebuttal, the plaintiff introduced the testimony of witnesses from which the jury could have found that a highway inspector of the city was present nearly all of the time during the progress of the work, that Mr. Brooks, the chief of the highway bureau, and Mr. Fredericks, his assistant, came there occasionally and that the former ordered the change; but whether the facts as to these matters (even assuming that they would be controlling, which they would not be) were as testified to was for the jury, not the court, to determine.

Moreover, neither of these officials was the officer named in the specifications or the officer referred to in the ordinance of 1885. Mr. Fuller, the district surveyor, who was the official referred to in the specifications, and Mr. Webster, the chief engineer and surveyor of the city, who was the official referred to in the ordinance of 1885, each testified that he did not order' the change, and it was not conclusively established by other evidence — certainly not so conclusively as to warrant the court in assuming it to be an uncontroverted fact — that either of these officials consented to it.

Furthermore, there is no evidence that this change was required “to insure proper surface drainage,” as set forth in the specifications, or was “advisable,” within the true intent and meaning of the ordinance of 1885. The sole purpose of or occasion for the change, of which any hint is given in the testimony, is that it was to serve the business convenience of the National Biscuit Company, the property owner on the opposite side of the street.

The natural consequence of this illegal departure from the requirements of the specifications and the ordinance of 1885 was to cast all of the surface drainage at that point upon the defendant’s side of the street, and there is evidence from which the jury could have found, if the question had been submitted to them, that it worked special injury to him, differing not only in degree but in kind from any injury or inconvenience to the general public which may have been occasioned by the grade and shape of the pavement as laid. This allegation of special injury to the defendant’s property is based on testimony to the effect, first, that the longitudinal slope of the street immediately in front of the defendant’s premises is very slight, in consequence of which the surface drainage brought to the gutter at that point is not carried to the sewer inlet, but stagnates; secondly, that if a gutter had been constructed on the opposite side of the street, as the ordinance required, all of the refuse and filth created by forty or fifty teams that back up and stand for loading and unloading at the National Biscuit Company’s property, two or three times a day, would be carried into the sewer inlets along the gutter on that side of the street, whereas by reason of the failure to observe the requirements of the specifications and the ordinance all this noxious drainage is thrown on the defendant’s side of the street,- and at times, particularly in the summer, this renders the gutter in front of his premises exceedingly offensive.

It is argued that as the variation from the specifications and the ordinance was visible and must have been known to the defendant before the paving was completed, it was his duty if he desired to raise any objection to it, to inform the city and take some steps to stop the work, and not having done so, he cannot raise the objection now. But the variation would not have been in violation of the ordinance, if the chief engineer and surveyor had certified that it was advisable, and there is no evidence that the defendant knew that he had not so certified. We do not admit that the defendant would have been estopped, even if he had known that fact before the work was completed, but it is unnecessary to go into that question, for it is very clear that, in the absence of evidence that he had such knowledge, the court would not have been justified in charging the jury that he was estopped by his mere silence. For a statement of the principles and a citation of authorities which fully support this conclusion we refer to Wickham v. Twaddell, 25 Pa. Superior Ct. 188, at pages 194, 195 and 196.

Another objection urged by appellee’s counsel against the defense is, that the admitted variation from the specifications and the ordinance was ratified and waived. It should be noticed that there is no evidence of the city’s ratification and waiver except that of which we have given a summary above; there was no such action by the corporate authorities by resolution or ordinance as was shown in McKnight v. Pittsburg, 91 Pa. 273, and City v. Hays, 93 Pa. 72. In support of their contention counsel cite Philadelphia v. Brooke, 81 Pa. 23; Fell v. Philadelphia, 81 Pa. 58; Erie v. Moody, 171 Pa. 610; Philadelphia v. Gorgas, 180 Pa. 296; Harrisburg v. Shepler, 7 Pa. Superior Ct. 491; Wabash Avenue, 26 Pa. Superior Ct. 305. These and other cases of the same class do hold that there are many questions relating to the formal details of agreements between the city and its contractors, and to their execution and performance, which cannot be raised by the defendant in such a proceeding as this, where it appears that the work has been accepted by city officials. But other cases show quite as distinctly that it is not an invariable rule that no question whatever which relates to the performance of the contract can be raised by the defendant in such a proceeding. In Pepper v. Philadelphia, 114 Pa. 96, a principle was enunciated which would entitle the defendant to go to the jury, unless he is precluded by the act of 1843 to which we shall refer later. Justice Tbxtnkey, who delivered the opinion of the court, said: “But in this state, where by the laws and ordinances the contractor receives the assessment bills in payment from the city, and it turns out that his work was so defectively done as to be worthless, he has no just right to recover in an action against the property owner, and the latter is not precluded from the defense because he is not a nominal party to the contract. If the work was substantially done as contracted for, answers the intended purpose, but in some minor particulars which do not materially affect its usefulness the contractor failed, then the property owner may have deduction for such failure. This is not the case of a municipality contracting for a public improvement, accepting it, and making payment therefor absolutely, and afterwards itself collecting the assessments; and it is unnecessary to consider whether in that case the property owner could allege defective work as a matter of defense against the tax.” This principle was recognized in Erie v. Butler, 120 Pa. 374, in Philadelphia v. Pemberton, 208 Pa. 214, and in many intermediate cases which we need not cite.

The next question to.be considered is whether the first section of the Act of April 19, 1843, P. L. 342, prevents the defendant from setting up a defense upon the facts to which we have alluded. This is a local act, applicable only to Philadelphia, and according to Craig v. Philadelphia, 89 Pa. 265, and Pepper v. Philadelphia, 114 Pa. 96, applicable only to certain portions of the city. The act declares, inter alia, that upon the trial of any action, whether of scire facias or otherwise, for the recovery of any sum claimed “for water pipe, curbing, paving, work done and materials furnished, and for which the said district now by law have a lien, .... it shall only be lawful for the defendant to deny that the said work was done or materials furnished, or prove that the price charged therefor is greater than the value thereof, or that the amount claimed has been paid or released.” If the words of the section which specify the three defenses that may be set up be taken literally and without regard to the context, it would be impossible for the defendant to show, that his property was not liable to assessment at all, because, for example, the pavement was laid in rural territory, or the street had been previously paved by the municipality at the expense of the abutters, or statutory conditions precedent to paving at the expense of the abutters had not been complied with. These are extreme illustrations, it is true, but they are pertinent, because they bring prominently into view the consequences of holding that the legislature intended to shut out every defense excepting those specifically mentioned, even though it be a defense based on a violation, to his injury, of a provision of the constitution, or of a statute, or of an ordinance, intended for the benefit and protection of the persons sought to be charged. The act has not béen so construed. In Commissioners of Kensington v. Keith, 2 Pa. 218, notwithstanding the contention that the act of 1843 prohibited the defense, the defendant was permitted to defend against a claim for curbing and paving upon the ground that the cdnmmissiohers had exceeded the statutory limitation of their power to pave;-namely, that the paving “be not less in length than one nor exceeding three squares at one time.” In Reilly v. Philadelphia, 60 Pa. 467, it appeared that the paving was done under k resolution requiring the contractor employed to do the work to be selected by a majority of the lot owners representing at least one-half of the feet front to be paved. The fact that the contractor was not so selected was directly put in issue by the defendant’s special plea; and there was no evidence that he was selected by any of the lot owners. For this reason the judgment, which was entered for defendant non obstante veredicto on the reserved point, was sustained on writ of error. In Fell v. Philadelphia, 81 Pa. 58 — a case much relied on by appellee’s counsel because it decided that the act of 1843 was then in force in what were, at the date of its enactment, within the incorporated districts of Philadelphia county — the defense was sustained, that the contract was made without compliance with the provisions of a -general ordinance requiring certain notices to be pubr lished for two weeks before any contract for paving any street or streets should be entered into. Justice Warren J. Woodward thus-summed up the decision: “But this is not a question between the city and the contractors, nor between the contractors and the property owners who employed them. It arises between the city and the defendant. The latter had assumed no duty expressly or by implication. He can be made subject to a legal obligation only where the power conferred on the municipal authorities- has' been legally exercised. Like Phila. v. Lea, 5 Phila. 77, this is 'a case depending wholly on the forms and requisitions of law, and in no degree on consent or contract, in which one of the forms, one of the conditions which the law itself has imposed, is wholly wanting.’ It is within the principle of Reilly v. Philadelphia, 60 Pa. 467, of the Phila. v. Stewart, 1 Weekly Notes of Cases 242, and of Pittsburg v. Walter, 69 Pa. 365. The city could have waived irregularities and defects of form. The property owners who entered into the agreement with the contractors, by'leaving the authoritiy they had conferred unrevoked, could not make those irregularities and defects subjects of complaint. But jurisdiction over the defendant and his property could be obtained only by pursuing rules prescribed by law, and the record proves that these rules could not possibly have been observed.” It is important to notice, first, that the law here referred to was not an act of the legislature, but a city ordinance, secondly, that so far as the restriction of the act of 1843 is concerned, the case plainly recognizes a distinction between questions relating purely to performance of contract stipulations and questions relating to the observance of the conditions or requirements of general city ordinances, governing the subject-matter. The principle was thus stated by the present chief justice in Philadelphia v. Jewell, 135 Pa. 329 — a case where the act of 1843 was directly under consideration: “The right of the city to order the paving of its streets, to determine the kind of pavement, the manner of its doing, the terms of the contract, etc., is independent of the property owners' judgment or consent: Philadelphia v. Brooke, 81 Pa. 23; Philadelphia v. Burgin, 50 Pa. 539; Hutchinson v. Pittsburg, 72 Pa. 320. But, on the other hand, when the property owner has had certain rights conceded to him, either by statute or municipal ordinance, the courts will allow him to assert them against the city itself, as well as against the contractor to whose use the city sues: Reilly v. Philadelphia, 60 Pa. 467; Pepper v. Philadelphia, 114 Pa. 96.” Of course, the ordinance of 1885 could not have prevented the councils of 1900 from ordaining that the pavement in question should be laid precisely as it was laid, and if they had so' ordained, the property owner would have had no right to have the question whether this was a proper exercise of discretion submitted to a jury. But the councils did not so ordain; the ordinance of 1885 was in full force at the time the contract was entered into and the pavement was laid. The rule prescribed by that ordinance as to the shape and grade of the pavement was not only impliedly but expressly a part of the contract, and even if no direct or indirect allusion to it had been made in the contract, it would have been binding upon the contractor and every city official who, according to the evidence, had anything to do with the performance or the acceptance of the work. The only city official who, under the ordinance, had any discretionary power in the premises was the chief engineer and surveyor, and according to his undisputed testimony his power was not exercised. Therefore the case before us is in the same situation as if no such power had been given to that officer. It is not pretended that the ordinance is merely directory, and we think it cannot be reasonably claimed that the owners of abutting property have no right growing out of it. It relates to a subject in which their interests are materially and directly involved, and it may be fairly presumed that this was one of the considerations which led to its adoption. In short, while the abutters, even though they are to pay the cost of the pavement, have no natural or statutory right to demand that such rule as to the grade and shape of the pavement shall be observed by the corporate authorities of a city, it is within the power of such authorities to create the right by ordaining the rule. It is not too much to say then, 'that the right asserted by the defendant was “conceded to him” by the ordinance, and therefore that the ca.se is within the principle enunciated in Philadelphia v. Jewell, 135 Pa. 329. If in disregard of that right and in violation of the ordinance the contractor so shaped and graded the pavement in front of' his property as to cause special injury, he ought in justice and fairness to be permitted to give evidence of these facts in defense to the claim, and to have that evidence submitted to the jury. We are of opinion that he is not precluded therefrom by the action of city officials who had no authority to make, rescind or waive the rule, or by the act of 1843.

The remaining objection urged by the appellee is that the defense is not good “because,” to quote from the brief of counsel, “the defect and irregularity alleged and complained of is not a defect or irregularity connected in anyway with the portion of the work for which the property owner is required to pay.” The best answer to this objection is to refer to the statement of facts made in a former part of this opinion; or rather the facts which a jury could have found from the testimony submitted by the defendant. In view of this testimony it is impossible for us to agree with the appellee’s counsel that the defect complained of, if it be regarded merely as a defect, is not connected in anyway with the portion of the work for which the defendant is required to pay. While it may be true that even in the case of a violation of the ordinance of 1885 in the construction of the pavement in another part of the street, which violation did not affect the defendant’s property injuriously, he could not upon that ground alone defend against the claim, yet if his property is injuriously affected by the violation of the ordinance, there is no rule or principle of law which would prevent him from defending upon that ground, even though the pavement on his side of the street was properly constructed. The cases cited by appellee’s counsel may, perhaps, sustain the proposition that a property owner can complain only of defects in the pavement which affect his own property; but even if that be the rule and even if the rule be applicable to a case where the defect was occasioned by the violation of a controlling city ordinance, as well as of the stipulations of the contract, it is not applicable to this case if the jury find from the testimony to which we have alluded that the defendant’s property upon which the assessment was laid was injuriously affected. As already suggested, the defendant was entitled to have this question of fact submitted to the jury.

The judgment is reversed and venire facias de novo awarded.


author: Orlad y, J.,

text:
    Murray, Appellant, v. Scranton Railway Company.

      Negligence — Street railways — Infants—Contributory negligence of parents — Question for jury.

    A mother whose duties require her personal attention in the kitchen of a humble home, is not guilty of contributory negligence, per se, in allowing a child of three years of age to be taken into the yard, or on to the road to play, in care of a sister eight years of age. The situation of the parents, the character of their home, the weather, the health of the children, their manner of living, and all the attending surroundings are elements to be considered by the jury in determining whether the parents have used reasonable precautions in safe-guarding the child.
    Argued March 5, 1905.
    Appeal, No. 37, March T., 1908, by plaintiffs, from judgment of C. P. Lackawanna Co., Nov. T., 1904, No. 178, for defendant non obstante veredicto in case of Michael Murray and Mary Ann Murray v. The Scranton Railway Company.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for death of child. Before Edwards, P. J.
    The facts are stated in the opinion of the Superior Court..
    Verdict for plaintiff for $480.
    The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Charles H. Soper, for appellant. —
    If the evidence discloses that the parent took some precautions, but in spite of them the child escaped and was injured, the question of contributory negligence is for the jury: Woeckner v. Motor Co., 182 Pa. 182; Lederman v. Penna. R. R. Co., 165 Pa. 118; Summers v. Brewing Co., 143 Pa. 114; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319; Buente v. Traction Co., 2 Pa. Superior Ct. 185; Kroesen v. Railway Co., 198 Pa. 30; Daubert v. Railroad Co., 199 Pa. 345; Dunseath v. Traction Co., 161 Pa. 124; Railroad Co. v. Long, 75. Pa. 257; Jones v. Traction Co., 201 Pa. 346; Henne v. Railway Co., 1 Pa. Superior Ct. 311; Evers v. Traction Co., 176 Pa. 376.
    July 15, 1908:

      E. N. Willard, with him Everett Warren, Henry A. Knapp and Charles P. O'Malley, for appellee,
    cited: Johnson v. Railway Co., 160 Pa. 647; Railroad Co. v. Long, 75 Pa. 257; Dunseath v. Traction Co., 161 Pa. 124; Henne v. Railway Co., 1 Pa. Superior Ct. 311; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319; Sullenberger v. Traction Co., 33 Pa. Superior Ct. 12.
   Opinion by

Orlad y, J.,

The plaintiffs below recovered a verdict of $480, which was subsequently set aside by the court-and a judgment was entered for the defendant, non obstante veredicto. In disposing of the rule for a new trial and directing a judgment for the defendant, the court below concluded that there were but two questions that required consideration. First, was there.any evidence of defendant’s negligence to be submitted to the jury? Second, were the plaintiffs guilty of contributory negligence? The trial judge resolved the first question in. favor of the plaintiffs, but concluded, after:a careful review of the.evidence, that the only inference to be drawn from the uncontradicted facts, was that the mother of the child was guilty of contributory negligence. We have given it a like examination, and have arrived at a different result.

The family of Michael Murray, who was a miner by occupation, consisted of himself, his wife and six children. He. resided in and owned his home, which was situated on what is called the Moosic road from Scranton. The house stood on ground about ten feet higher than the road, upon which is the street railway, and was reached by steps and a path. The mother attended to the household affairs, assisted,by the.children. .

On Sunday evening, September 11, immediately, after the family had supper together, the father left the house, and the mother and a daughter, aged sixteen, were occupied by their domestic duties; an elder being away from home. The mother put the youngest child, aged three years, in the care of an elder sister, aged eight. The two children went out of the house together to play. The testimony of the mother is somewhat confusing in fixing the place to which she knew the children would go. In her direct examination she said "they went out on the road together, they both went out to play together.” On cross-examination she testified: "Q. At the time you let the other child go out of the house with this little girl, you saw them both go out on the street. A. No, they walked out the back yard together. Q. Didn’t you say yesterday, that they told you, that this little one told you she was going out to play on the road and up to Nallons? A. Not on the road, they always played on the field, but they went out on the road. Q. You saw her go out on the road? A. Yes, sir, she had to go out that way. By the court. Q. He is asking you if you saw her go out to the road on which the street car track was? A. I was in the back, and around the back. Q. You didn’t see her go out on the road? A. No, sir. Q. By Mr. O’Mally. I thought you said yesterday, you were in the dining room, in the front room, and from the window you saw them go out on the road? A. The kitchen is in the back, and around to the back they always go. They don’t come to the front. Q. When they went out on the road, you were in the front room? A. No, sir. I was in the kitchen. Q. You didn’t see them when you were in the back of the house, when you were in the kitchen. A. In the back, they went out the back door and around the house to the front, and I was in the back. Q. You saw them go around to the front? A. Yes, sir. Q. The little one told you she was going out to play in the field? A. No, sir. She didn’t say she was going out to play. The bigger girl was going out and I told her to take her sister and take care of her, with her.”

The contention of the defendant is, first, that the mother permitted the two young children to go out on the road to walk or play; second, that she knew the road was a place of danger because of the street car track and the steep grade in front of the house. Third, that it is a negligent act to allow a child three years old to go out on the road in the care of an eight year old child.

While the question is a narrow one, we feel that there is a plain dividing line in the decisions, between those cases which exempt a defendant from liability by reason of the contributory negligence of a parent in allowing a child to wander on a place of manifest danger, or in failing to exercise reasonable efforts to guard the child, and the cases where the parent does exercise reasonable care in the light of the circumstances, and the child escapes and without the knowledge of the parent, goes to a place of danger. In the former class, the decisions are uniform and hold that there is no right to recover. In the latter class they are as consistent in holding that the question of contributory negligence is to be passed upon and disposed of by a jury.

In Kay v. Penna. R. R. Co., 65 Pa. 269, Judge Agnew says: “The doctrine which imputes the neglect of a parent to the child, in such a case as this, is repulsive to our natural instincts and repugnant to the condition of that class of persons who have to maintain life by daily toil. It is not the case where the positive act of a parent or guardian has placed a child in a position of danger, necessarily requiring the care of the adult to be constantly exercised, as where a parent takes a child into the cars, and by his neglect suffers it to be injured by straying off upon the platform.” That case was submitted to the jury. In Philadelphia & Reading R. R. Co. v. Long, 75 Pa. 257, the child evaded the mother and passed out into an alley unobserved by her. The court said, “To suffer a child to wander on the street has- the sense of permit. If such permission or sufferance exist it is negligence. This is the assertion of a principle. But whether the mother did suffer the child to wander is a matter of fact and is the subject of evidence, and this must depend upon the care she took of her child.”

In Dunseath v. Traction Co., 161 Pa. 124, the boy left the house without the mother knowing it. In Henne v. Railroad Co., 1 Pa. Superior Ct. 311, and in Buente v. Traction Co., 2 Pa. Superior Ct. 185, the child slipped away from the house during the temporary absence of a servant. In Evers v. Phila. Traction Co., 176 Pa. 376; Woeckner v. Erie Electric Motor Co., 182 Pa. 182; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319; Jones v. Traction Co., 201 Pa. 344; Kroesen v. Railway Co., 198 Pa. 30; Harkins v. Pittsburg, etc., Traction Co., 173 Pa. 146, and Daubert v. D., L. & W. R. R. Co., 199 Pa. 345, a recovery in each case was sustained for the reason that the proof was not clear that the parent failed in the:duty of exercising reasonable care in allowing or permitting a child of tender years to go without proper protection into a place «of known danger. Many authorities could be cited holding-that want of care, or indifference, or failure to use reasonable precaution and safeguard over a child of tender -years, or sending them on missions across, exposed places, will prevent a recovery. But, in all such, the testimony is so clear as to be -undisputed.

Measured by these standards, we cannot hold that this mother, whose duties required her personal - attention in the kitchen of a humble home, was guilty of contributory negligence in allowing a child of three years of age to be taken out into the yard, or on to the road to play in the care of a sister, eight years of age. The*situation of the parents, the character of their home, the weather, the health of the children, their manner.- of living, and all - the attending surroundings are elements to be considered in disposing of this mooted question. It is not conceivable that the children of such a family must be kept in doors in pleasant-weather; yards and roads are natural and proper places for them to be in healthful exercise if properly safeguarded, and from the mother’s testimony it is not at all clear that she knew her children, were going to or even near the street car track. In cases of .such character, it is safer to have the conclusion-of the jury, in the light of the circumstances, rather than to dispose of'it as a matter of law, which is founded upon undisputed facts or conclusive inferences. • -,.

The case having been fairly tried by the court below and a verdict recovered, the judgment entered by the court in favor of the defendant, is reversed, and judgment is now entered in favor of the plaintiff for the amount of the verdict.


author: Orlady, J.,

text:
    Whitehouse v. Pittsburg Railways Company, Appellant
    (No. 1).

      Negligence — Street railways — Passenger—Defective hand rail.

    A womáñ incumbered with' a baby, while getting off a car, took hold of a hand rail on the side of a car for the purpose of aiding herself in descending to the ground. While . grabbing the hand rail, in some way and for some reason not entirely clear, her hand caught on the rail and she was suspended therefrom by something catching under a ring which she wore on the third finger of her hand, and so holding it that the flesh of that finger was torn off to the first joint, so that it was necessary to push the flesh back through the ring to return it to its proper place. One of plaintiff’s witnesses testified that an inspector of the defendant said to him that there was a defect in the hand rail, a split or "something, which caused thé accident. This was denied by the inspector. Witnesses for the- defendant testified as to the perfect condition of the hand rail after the accident, but they could not say on cross-examination whether the handle was of brass or wood, and they could1 not give the number of the car. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    When the thing which causes the injury is shown to be under the management of the defendant, and’the accident is such' as in'the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. ■' ■ ■
    Argued April 17, 1908.
    Appeal, No. 169, April T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 482, on verdict' for plaintiff in case of Benjamin Whitehouse and Elizabeth Whitehouse v. Pittsburg Railways Company. ■
    Before' Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brown, P. J.
    The fact's are stated in the opinion of the Supreme Court.
    Verdict and judgment for' plaintiff. Defendant appealed.
    ' Error assigned was in refusing binding instructions for defendant. •

      July 15, 1908:

      Don Rose, with him Clarence Burleigh, James C. Gray, William A. Challener and Craig Smith, for appellant. —
    Where the injury is chargeable to the manner of construction of a car the rule does not apply if the accident is to the passenger and not the car: Farley v. Traction Co., 132 Pa. 58; Herstine y. Railroad Co., 151 Pa. 244; Penna. R. R. Co. v. MacKinney, 124 Pa. 462; Dennis v. Railroad Co., 165 Pa. 624; Thomas v. Railroad Co., 148 Pa. 180; Howell v. Union Traction Co., 202 Pa. 338; Hayman v. Penna. Railroad Co., 118 Pa. 508; Fearn v. Ferry Co., 143 Pa. 122.

      J. S. McKelvy, Jr., with him Langfttt & McIntosh, for appellee. —
    The case was for the jury: Spear v. Railroad Co., 119 Pa. 61; Brooks v. Railway Co., 218 Pa. 1; Neslie v. Passenger Ry. Co., 113 Pa. 300; Devlin v. Beacon Light Co., 198 Pa. 583; Penna. R. R. Co. v. Weiss, 87 Pa. 447.
   Opinion by

Orlady, J.,

This was an action of trespass brought by the plaintiffs against the Pittsburg Railways Company to recover damages for a personal injury sustained by the wife. The verdict returned by the jury was in favor of the husband, $393, and in favor of the wife for $107.

The wife was a passenger on the car of the defendant company, accompanied by her father and her mother-in-law. In attempting to get off the front end of the car, while in the act of stepping down incumbered by her year and eight months old babe, she took hold of the hand rail on the side of the car, for the purpose of aiding herself in descending to the ground. While grabbing the hand rail, in some way and for some reason not entirely clear, her hand caught on the rail and she was suspended therefrom by something catching under a ring which she wore on the third finger of her hand, and so holding it that the flesh of that finger was torn off to the first joint, so that it was necessary to push the flesh back through the ring to return it to its proper place.

The hand rail was described as an upright grab handle on the outside of the car, about one inch and a quarter in diameter, and it was intended to aid passengers in entering and leaving the car, and must be treated as a necessary part of the car’s equipment.

The plaintiff was corroborated, as to the material part of her testimony, by a number of witnesses, and that phase of the case is not questioned. The cause of the injury is not clearly explained by the plaintiff’s witnesses further than through the testimony of Benjamin Whitehouse, Sr., who stated that an inspector of the defendant, who had examined the car, said to him that there was a defect in the hand rail, a split or something, which caused the accident. This statement was distinctly denied by the inspector, and the defense was purely one of fact, that the grab handle was perfect and that a prompt inspection subsequent to the injury did not evidence any defect whatever. The same witnesses, however, who testified as to the perfect condition of the grab handle could not say on cross-examination whether the handle on this car, which induced the plaintiff’s injury, was of brass or of wood, and could not give the number of the car.

We held in Fisher v. Ruch, 12 Pa. Superior Ct. 240, that “When the thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of careShearman and Red-field on Negligence, secs. 59 and 60, quoted with approval in Shafer v. Lacock, 168 Pa. 497. See also Sopherstein v. Bertels, 178 Pa. 401; Valentine v. Colburn Co., 10 Pa. Superior Ct. 453.

The occurrence of the accident and its character, could not be in dispute, under the testimony of the plaintiff and her witnesses. The explanation offered by the defendant made it purely a question of fact for the jury, and in the light of the uncertainty of its own witnesses, it is not surprising that their testimony was ignored. See also Matthews v. Pittsburg, etc., R. R. Co., 18 Pa, Superior Ct. 10; Lewin v. Pauli, 19 Pa. Superior Ct. 447; Farley v. Traction Co., 132 Pa. 58; Spear v. P. W. & B. R. R. Co., 119 Pa. 61; Brooks v. Phila. & Reading Ry. Co., 218 Pa. 1.

The plaintiff having shown a series of acts from which the inference of negligence on the part of the defendant arose, and having once arisen, it remained until overcome by countervailing proof, whether or not the witnesses for the defendant were entitled to belief, was necessarily a question for the jury: Devlin v. Beacon Light Co., 198 Pa. 583.

The question was fairly submitted to the jury in an adequate charge, and the judgment is affirmed.


text:
    Whitehouse v. Pittsburg Railways Company, Appellant
    July 15, 1908:
    (No. 2).
    Argued April 17, 1908.
    Appeal, No. 170, April T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 482, on verdict for plaintiff in case of Benjamin Whitehouse and Elizabeth Whitehouse v. Pitts-burg Railways .Company
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Orlady, J.,

This case was heard with one between the same parties to ante, p. 581, and for the reasons therein given, this judgment is affirmed.


text:
    Smith v. Illinois Central Railroad Company, Appellant.

      Statutes — Construction—Retroactive action — Appeals—Costs—Printing paper-books — Act of April 15, 1907, P. L. 83.
    A statute is always to be interpreted so as to operate prospectively, and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature.
    The Act of April 15,1907, P. L. 83, imposing upon the losing party the cost of printing the winning party’s paper-book, is limited to appeals taken subsequent to the date of the approval of the act.

      July 15, 1908:
    Argued April 29, 1908.
    Appeal, No. 214, April T., 1908, by defendants, from order of C. P. No. 2, Allegheny Co., July T., 1902, No. 463, sustaining exceptions to bill of costs in case of J. W. Smith et ah, trading as J. W. Smith & Company, v. Illinois Central Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to bill of costs.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Roger' Knox, of Hosack, Knox & Hosack, for appellant.—
    The general principle seems to be that alterations in the procedure are always retrospective unless there be some good reason against it: Freeman v. Moyes, 1 Adolphus & Ellis, 338; Pickup v. Wharton, 2 Crompton & Meeson, 401; Grant v. Kemp, 2 Crompton & Meeson, 636; Wright v. Hale, 6 Hurlston & Norman, 227; Lane v. White, 140 Pa. 99; Kille v. Iron Works, 134 Pa. 225; Koch’s Est., 5 Rawle, 338; Krause v. Penna. R. R. Co., 4 Pa. C. C. Rep. 60; Adair v. Decker, 34 Pa. Superior Ct. 153.

      Robert M. Ewing, for appellees. —
    Retrospective laws generally, if not universally, work injustice and ought to be so construed only when the mandate of the legislature is imperative: Taylor v. Mitchell, 57 Pa. 209; Neff’s Appeal, 21 Pa. 243; Fisher v. Farley, 23 Pa. 501; Sproul v. Standard Plate Glass Co., 201 Pa. 103; Sachse v. Myers, 15 Pa. Superior Ct. 425.
   Opinion by

Orlady, J.,

The court below refused to allow, as part of the costs of. the case, the amount expended for the printing of the paper-book of the appellant, in whose favor the final decision of this court was rendered. The appeal was taken from the judgment of. the court below on September'12, 1906. The Act of 1907, P. L. 83, was approved April 15, 1907. On May 13, 1907, the judgment of the court below was reversed by this court, and judgment entered in favor of the defendant non obstante veredicto.

The act provides, “That in all cases, either in law or equity, wherein an appeal is taken from any judgment, decree, or order, to the Supreme or Superior Courts, the party in whose favor the final decision is rendered, shall be entitled to charge and collect from the losing party, as part of the costs, such an amount as shall have been expended for printing the paper-book upon said appeal. Said amount to be taken and collected in the same manner as costs are now taxed and collected by law.”

But little need be said in regard to this question, inasmuch as the decisions of the Supreme Court are so plainly applicable thereto that mere reference to them must result in affirming the judgment of the court below.

Legislation which affects rights, will not be construed to be retroactive, unless declared so in the act; but, where it concerns merely the mode of procedure, it is applicable of course to litigation existing at the time of its passage: Lane v. White, 140 Pa. 99.

This was the conclusion of the Supreme Court in an action of foreign attachment, which was pending when the Act of May 10, 1889, P. L. 183, was passed, and the plaintiff having filed his statement of claim fifteen days thereafter, took judgment against the defendant in default of an appearance before the act was passed, and after the third term after the execution of the writ it was held that the act applied merely to the mode of procedure. Granting the. power of the legislature to enact the statute, was it their intention to make this act retroactive? In the absence of such a plain expression of design, it should be construed as prospective only, although its words are broad enough in their literal extent to comprehend existing cases: Sutherland on Statute Construction, sec. 464.

Retrospective laws generally, if not univeTsally, work injustice, and should be so construed only when the mandate of the legislature is imperative. They should not be so construed unless the language is so clear as to preclude all question as to the intention of the legislature: Taylor v. Mitchell, 57 Pa. 209; Sachse v. Myers, 15 Pa. Superior Ct. 425.

There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the leg-» islature: Sproul v. Standard Plate Glass Co., 201 Pa. 103.

Inasmuch as the act does not in clear and 'unequivocal language declare that its provisions shall be applied to cases similar to the one before us, we feel constrained to hold that it is limited to appeals taken subsequent to the date of its approval.

The judgment is affirmed.


text:
    Green v. Kiefer, Appellant.

      Conspiracy — Evidence—Concerted action — Declarations.
    In an action based on an alleged conspiracy of the defendants to charge the plaintiff with having written an anonymous letter containing charges of dishonesty and embezzlement, a verdict for plaintiff cannot be sustained where there is nothing in the record to show any concerted action among the defendants, or any combination with others, nor individual action on the part of any of them to injure the plaintiff.
    While the declarations of conspirators are evidence against the others, they are so only after the fact of conspiracy has been proved, and during the time it continues, but if made after the conspiracy has been dissolved, they are not evidence.
    Argued April 27, 1908.
    Appeal, No. 93, April T., 1908, by defendants, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 401, on verdict for plaintiff in case of C. A. Green v. Annie G. Kiefer et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass for conspiracy. Before MacFarlane, J.

      July 15, 1908.
    The facts'are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for six and one-fourth cents. Defendant appealed.-

      Error assigned was in submitting the case to the jury.

      Chas'. T. Moore, with him W. J. Bremen and George H. Quaill, for appellant. .

      Thomas M. Marshall, Jr., with him L. K. Porter, for appellee.’
   Opinion by

Orlady, J.,

This action of trespass is based on an allegation of a false and malicious conspiracy on the part of’the defendants, charg-. ing the plaintiff with having written a letter to the first-named defendant, and accusing her of dishonesty and embezzlement. It is alleged that the defendants acted severally and jointly in charging the plaintiff with writing the letter in order to injure the plaintiff’s reputation and good name among her associates.

The parties to this action, with some twenty others, were members of a Friday afternoon euchre club, which met at the homes of the various members to play cards and be otherwise entertained. The verdict is for six and one-fourth cents, and the parties have indulged in the luxury of this litigation without accomplishing any definite end, and there is no evidence within the record on which it can be sustained. •

A-malicious, anonymous-letter was sent to-Mrs. Kiefer,'in which the general conduct of the club and her particular management of one of its meetings, were involved. Naturally all were indignant and insisted on -an investigation. A palmist and a writing expert were suggested. Three of the ladies consulted the" postoffice authorities,, and were referred to- an expert, who gave a :written opinion in which he stated' that the anonymous letter was written by the same person who wrote two other letters presented to him at the same time.' This report was read by some and talked about by others. The anxiety to locate the author was so intense that a number of the members insisted that Mrs. Kiefer should have it investigated if it took every dollar she had, and pledged themselves to stand by her without regard to cost.

After consulting an attorney, they were advised to let the matter drop and have nothing further to say about it, and were especially warned not to discuss the question inasmuch as it was dangerous ground. It is stated, without any contradiction, that this advice was followed by the three defendants, and there is nowhere in the record anything to show any concerted action among the three, or any combination with others, nor individual action on the part of any of them, to injure the plaintiff. The common gossip of the card party was the individual expression of each, without ¡regard to what any of the associate.members said or did. There is an entire lack of the element of conspiracy in the record. - The defendants did not originate the charge, and what they did was pursuant to the request of the members of the club, including the plaintiff, to make an investigation of the facts', and there is not the slightest evidence that in doing these things, they acted in bad.faith. No conspiracy having been shown, it is not material what the members of the club said to and of each other.

While the declarations of conspirators are evidence against the others, they are so only after the fact.of conspiracy has-been proved, and during the time it continues, but if made after the conspiracy has been dissolved, they are not evidence: Wagner v. Aulenback, 170 Pa. 495; Miller v. Harvey, 215 Pa. 103.

It is not necessary to- pursue the case further. The secotid assignment of error is sustained and the judgment is reversed.


author: Henderson, J.,

text:
    Plunkett, Appellant, v. Hamnett.

      Practice, C. P. — Statement of claim — Insufficiency of statement — Check —Pleading.

    A statement of claim in assumpsit which sets out a writing showing that the defendant had received from the plaintiff “ a check for $500 to be paid on account of Rankin property or returned,” and alleges that payment had not bee'n made by defendant on account of the Rankin property, and that a demand for repayment of $500 had been refused, is insufficient to establish a cause of action, inasmuch as the plaintiff is bound to aver that the defendant or some person for him or through him obtained the money on the check.
    While technicality of pleading is now greatly relaxed, the procedure act of 1887 still requires the declaration in assumpsit and trespass to be not only a concise statement of the plaintiff’s claim, but to set forth with completeness the ground on which the plaintiff seeks to recover. All of the elements of a complete cause of action must be clearly set forth. Formality is not required, but substance cannot be dispensed with.
    Argued April 15, 1908.
    Appeal, No. 26, April T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 530, sustaining demurrer in case of Thomas E. Plunkett v. T. Leo Hamnett.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Demurrer to statement of claim in assumpsit.
    The statement of claim was as follows:
    The plaintiff avers that on September 17, 1906, he handed to T. Leo Hamnett the sum of $500 and received from the said defendant the following agreement:
    "Pittsburg, Pa., 9-17, 1906.
    "500.
    “Received of Thomas E. Plunkett, check for Five Hundred ($500) Dollars to be paid on account of Rankin property or returned.
    (Signed) “T. Leo Hamnett.”

      The above being a true copy of original which is now in the possession of the plaintiff.
    The plaintiff avers that on October 17, 1906, he demanded from the said defendant the sum of $500 and again on November 7, 1906, through his attorneys, Hudson & Howley, he demanded in writing from the said T. Leo Hamnett the sum of $500, the following of which is a copy:
    “Pittsburg, Pa., Nov. 7th, 1906.
    “Mr. T. L. Hamnett,
    “Hawthorn & Roslyn Sts.,
    “Swissvale, Pa.
    “Dear Sir: You are hereby notified that Mr. Thomas E. Plunkett wants the $500.00 for which you gave him a receipt on the 17th of October, 1906, returned to him on or before next Monday, the 12th of November; otherwise suit will be instituted against you to have same returned.
    “Very truly
    (Signed) “ Hudson & Howley.”
    The pMntiff further avers that the said T. Leo Hamnett failed and refused to return the said $500 with interest thereon. The plaintiff further avers that the said T. Leo Hamnett did not pay on account of the Rankin property the said $500 and thereby the plaintiff is entitled to have the same returned in accordance with the written agreement. The plaintiff avers that although he has demanded from the said T. Leo Hamnett the sum of $500, yet the said defendant has failed and refused and still refuses to pay the said $500 to the plaintiff or anyone for his use.
    The plaintiff avers that the said T. Leo Hamnett is indebted to him in the sum of $500, with interest thereon from October 17, 1906, for which he brings this suit.
    The court sustained the demurrer.

      Error assigned was in sustaining the demurrer.

      W. A. Hudson, with him Joseph Howley, for appellant.

      July 15, 1908:

      Galen C. Hartman, for appellee.
   Opinion by

Henderson, J.,

The plaintiff’s action is in assumpsit for money alleged to be due 'on a written agreement set out in the statement of claim in the following form:

“Pittsburg, Pa., 9-17, 1906.

“$500.

“Received of Thomas E. Plunkett, check for Five Hundred ($500) Dollars to be paid on account of Rankin property or returned.

(Signed) “ T. Leo Hamnett.”

the allegation being that payment was not made by the defendant on account of the Rankin property and that upon demand made by the plaintiff’s attorney the defendant failed and refused to pay to the plaintiff $500. A radical defect in the statement of claim is that it is not averred that the defendant received the money on the check or that it was paid by the bank on which it was drawn to any person. It is true the declaration avers that the plaintiff “handed” to the defendant the sum of $500, but this is in immediate connection with the averment that the plaintiff received from the defendant the agreement above quoted. There can be no doubt, therefore, that what the defendant received from the plaintiff was not money but a check, and unless the defendant or some person for him or through him obtained the. money on the check from the plaintiff’s funds in bank the defendant does not owe the plaintiff the amount of the check. The latter may have some remedy to recover the check, but the defendant did not become liable to him for the sum named therein by merely receiving it into his possession. While technicality of pleading is now greatly relaxed, the procedure act of 1887 still requires the declaration in assumpsit and trespass to be not only a concise statement of the plaintiff’s claim, but to set forth with completeness the ground on which the plaintiff seeks to recover. All of the elements of a complete cause of action must be clearly set forth. Formality is not required, but substance cannot be dispensed with. There is no presumption that the check delivered by the plaintiff to the defendant was paid, and without an averment of this material fact the statement of claim does not set forth a liability on the part of the defendant which would sustain the action.

The judgment is-affirmed.


text:
    Necker v. Sedgwick, Appellant.

      Execution — Sheriff—Interpleader—Act of May 26,1897, P. L. 95.
    The purpose of the Act of May 26, 1897, P. L. 95, was to compact in one enactment the statutes and principal decisions relating to inter-pleaders in execution, with the addition of the provision, new to the law, saving the sheriff from actions if he proceeded in accordance with the statute.
    In an action against a sheriff for refusal to sell goods levied upon by him, where it appears that the sheriff had not applied for an inter-pleader, he may show that the goods which he had seized on the execution did not belong to the debtor, but to a stranger, and that the plaintiff had consequently suffered no injury by the refusal of tho defendant to proceed to sell.
    Argued April 13, 1908.
    Appeal, No. 197, April T., 1908, by defendant, from judgment of C. P. Erie Co., Feb. T., 1907, No. 35, on verdict for plaintiff in case of J. W. Necker v. P. S. Sedgwick.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Reversed.
    Trespass against a sheriff for refusal to sell goods levied upon. Before Thomas, P. J., specially presiding.
    At the trial defendant’s counsel offered to show that in the summer of 1905, W. H. Smith issued an execution upon a judgment amounting to $700 or $800, which he had against G. G. Thomas, and that all of the property, of every kind and nature, including the crops upon the farm, in which Mr. Thomas had any interest, or which he owned, were sold at sheriff’s sale, and purchased by Mr. Smith the witness. That after the sale Mr. Smith and Mr. Thomas canceled this lease, and entered into an agreement, by which Mr. Smith employed Mr. Thomas to run the farm for him, Smith, and by the terms of which agreement Mr. Thomas was to receive $40.00 per month, and the use of such products of the farm as he wished to use for living purposes, for his table and household use, etc., and was to turn the balance of the proceeds of the farm over to Mr. Smith. This for the purpose of showing, that at the time of the levy, the following year, under the writ issued by the plaintiff, Mr. Thomas was not the owner of any property on the farm, upon which the defendant, as sheriff, could lawfully make a levy or sale.
    ■ Objected to any evidence in this case tending to show that Mr. Smith, the witness on the stand, was the owner of the personal property levied upon, on fi. fa. No. 12, November Term, 1906, for the reason that the Act of assembly of May 26,1897, P. L. 95, prescribes the proceedings to be taken on part of the sheriff, where goods are levied on as the property of one person and claimed by another. That the sheriff cannot determine the question of ownership for himself, and refuse to proceed in the manner directed by this act. That while evidence of ownership would be competent in a feigned issue, it is not competent evidence in this case.
    The objection to the offer is sustained. Exception sealed for the defendant. [1]
    Counsel for the defendant offers to show by the witness on the stand and other witnesses, that at the time of the entry of judgment of the Plaintiff v. G. G. Thomas, upon which the writ of execution, referred to in the plaintiff’s declaration, was issued, and under which, levy was made by the defendant as sheriff, the defendant, G. G. Thomas, owned no property, real or personal, of any character or description, within the county of Erie. That the grain, crops, and any other property attempted to be levied upon by the sheriff under the said writ of execution, belonged, at the time of the issue of said writ, and at the time of the said attempted levy, to Willis H. Smith and not to G. G. Thomas; that said G. G. Thomas, the defendant in the execution, was working upon said farm, upon a salary paid him by Willis H. Smith; that he was not a tenant of said farm, and had no interest in the crops, or any other property thereon. That the whole of said crops and other property, together with the said farm, belonged to said Willis H. Smith, and that the possession, such as it was, of said G. G. Thomas was the possession of Willis Smith, said Thomas being his employee as afcfresaid. Also, that after the issuance of the said writ, and the making of said levy, said Willis H. Smith duly notified the defendant, sheriff, that said property, and the whole thereof, belonged to him, and not to Thomas, and that said G. G. Thomas had no interest therein, and forbade the sheriff to proceed with said execution, at his peril, and that the said sheriff, after investigation, was convinced that the title and ownership to all of said personal property was in said Willis H. Smith and not in G. G. Thomas, and thereupon proceeded no further with said execution.
    This for the purpose of showing that the .plaintiff sustained no damage, by reason of the failure of the sheriff to proceed with the said execution, and is therefore not entitled to recover in this case.
    Said offer being objected to as follows:
    Objected to, for the reason that after the sheriff made his levy upon this writ, it was his duty to proceed in the manner prescribed by the act of assembly of May 26, 1897, and it is not competent for him to prove in this case that the property levied upon belonged to a third person. Upon which the court made the following ruling.
    Objection sustained, and exception sealed for the defendant. [2]
    Verdict and judgment for plaintiff for $181.65. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.

      Frank Gunnison, with him John S. Rilling and Henry E. Fish, for appellant.

      Albert B. Osborne, with him C. L. Baker, for appellee.

      July 15, 1908:
   Opinion by

Henderson, J.,

At the trial of this case the defendant offered to show that the property levied on by him was not the property of the defendant in the execution, but of one Willis H. Smith, who was the sole and exclusive owner thereof. This offer was refused by the court and the jury was instructed that the defendant could not deny the ownership of the property in the defendant in the execution. This instruction was based on the interpretation given by the learned trial judge to the act of May 26, 1897, prescribing the procedure where goods or chattels are levied on by the sheriff and claimed by another than the defendant in the execution, which was in substance that the obligation was imperative on the sheriff to proceed for an inter-pleader as provided for in the statute and that his neglect so to do rendered him liable for the amount of the writ or the value of the property .levied on, if that was less than the debt, interest and costs, even if the defendant in the execution had no title whatever to the subject of the levy. This view of the act, we think, warps it from the object of its enactment and imposes a penalty on the sheriff not expressed nor intended. No such consequence was involved in the sheriff’s interpleader act of April 10, 1848, as extended throughout the state by the act of March 10, 1858, and unless the act of 1897 contains some provision which shows that the well-established law as to the liability of the sheriff has been changed, there is a lack of support for the conclusion reached at the trial. The interpleader practice in the case of a levy by the sheriff was established for the relief and protection of that officer, as appears from the act itself and from the decisions of the courts bearing on that subject, and not in behalf of contending claimants for the property. The sheriff was to be made secure against the trouble and expense of a suit as well as saved from the probability of a judgment against him. As between the claimant and the plaintiff in the execution he becomes a stakeholder liable to be called upon from different directions while in the honest discharge of his official duty, and is, therefore, entitled to protection. Of the act of 1897, it was said in Book v. Sharpe, 189 Pa. 44, that it is substantially nothing but a consolidation of the previously existing law with the addition of putting into statutory form the principal parts of the practice already established by the decisions and rules of court. The only material change in the law was said to be the provision of the fifteenth section which exempts the sheriff from liability if he comply with' the provisions of the act. The same view was taken in Commonwealth v. Burns, 14 Pa. Superior Ct. 248. This being the case, it follows that the liability of the sheriff in case of his neglect or refusal to proceed under the act of 1897, is for the damage sustained by the party injured thereby. The plaintiff in the writ could only lawfully sell the property of the debtor. He had no claim on the goods of a stranger, and if the debtor had no property there was nothing against which the creditor could proceed and he sustained no loss. It would seem to follow as a consequence of the reasoning of the appellee that if the sheriff had proceeded to sell without an interpleader the claimant could also have maintained an action against the sheriff for the value of the property sold even though he was not the owner of it, the consequence of the sheriff’s refusal to. take advantage of the statute being to close his mouth against the claim of either, the executing creditor or the claimant. We are persuaded that no such result as this was in contemplation when the act was passed, but that the purpose was to compact in one enactment the statutes and principal decisions relating to the subject with the addition of the provision, new to the law, saving the sheriff from actions if he proceed in accordance with the statute. The fair implication from the fifteenth section of the act .is that if the sheriff do not proceed under the act he shall remain liable as theretofore to the plaintiff or the claimant. The appellant was, therefore, entitled to show that the goods which he had seized on the execution did not belong to the debtor but to a stranger, and that the plaintiff had consequently suffered no injury by the refusal of the sheriff to proceed to sell.

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