author: Porter, J., Morrison, J. :

text:
    Ilyus v. Buch, Appellant.

      Judgment — Opening judgment-^-Evidence — Forgery.
    A proceeding to open a judgment is an appeal to the equity powers of the court; the judge exercises the functions of a chancellor, is vested with a discretion to pass upon the weight of the evidence and the credibility of the witnesses, and to' dispose of the question presented upon equitable principles. The action of the court below will only be reversed in such a case where an abuse of judicial discretion is apparent. These principles apply where an allegation of forgery is involved with the same force and effects as in other cases.
    A court cannot be charged with abuse of discretion in discharging a rule to open a judgment entered upon a bond, where it appears that the defendant and her sister testified that the signature to the bond was forged, but it also appears that neither of the witnesses had seen the bond for ten years, that nine years before, it had been removed from the court records by the attorney for the defendants, had not been restored to the records, nor produced at the hearing, and that no adequate search had been made for it.
    Argued Nov. 15, 1906.
    Appeal, No. 166, Oct. T., 1906, by defendant, from order of C. P. Lancaster Co., April T., 1893, No. 463, discharging rule to open judgment in case of A. C. Ilyus, Administrator d. b. n. c. t. a. of Ferdinand Utermoehi, deceased, v. Maria Buch.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Affirmed.
    Rule to open judgment.
    The facts are stated in the opinion of the Superior Court.

      October 7, 1907:

      Error assigned was the order of the court.

      B. F. Davis, for appellant.
    An issue should have been awarded : Schomaker v. Dean, 201 Pa. 439 ; Heist v. Tobias, 182 Pa. 442; Shannon v. Castner, 21 Pa. Superior Ct. 294; Bldg. Assn. v. Walton, 181 Pa. 201; Toomey’s Appeal, 150 Pa. 535; Com. v. Pioso, 17 Pa. Superior Ct. 45; Darlington’s Est., 147 Pa. 624; Crane v. Hastings, 11 Pa. Dist. Rep. 75; Baskin v. Seechrist, 6 Pa. 154; Clark v. Trindle, 52 Pa. 492; Myer v. Verner, 10 W. N. C. 138.

      W. U. Sensei, for appellee.
    The motion to open a judgment is an appeal to the equity side of the court: O’Hara v. Baum, 82 Pa. 416; Jenkintown Nat. Bank’s Appeal, 124 Pa. 337 ; Kaier Co. v. O’Brien, 202 Pa. 153; Kneedler’s App., 92 Pa. 428; Wise’s App., 99 Pa. 193; Schenck’s App., 94 Pa. 37.
    There is no adequate proof to sustain the petition to open: Kneedler’s App., 92 Pa. 428; Wise’s App., 99 Pa. 193.
    The court sitting as a chancellor must judge of the evidence and determine its sufficiency: Wernet’s App., 91 Pa. 319; Earley’s App., 90 Pa. 321; Zaring v. Earley, 2 Pearson, 352; Fuhrman v. Fuhrman, 13 Lancaster Bar. 123; Philbin v. Davinger, 29 Legal Int. 325; Knarr v. Elgren, 19 W. N. C. 531; Jenkintown Nat. Bank’s App., 23 W. N. C. 359.
    In a rule to open judgment, where, the defendant swears the signature is forged and the plaintiff swears that he saw defendant sign the same, and is corroborated by other circumstances, there is not sufficient grounds to open judgment: Ward v. Ward, 4 Lanc. Law Rev. 306; Roenigk’s Appeal, 2 Cent. Repr. 68; Vogeley’s Appeal, 15 Atl. Repr. 878; Rhine v. Swartley, 16 Atl. Repr. 846; Keener v. Shank, 7 Lanc. Law Rev. 339; Barton’s Appeal, 5 Cent. Repr. 459; Bender v. Gabel, 4 Delaware Co. Rep. 192; Essick’s Appeal, 1 Monaghan, 588.
    No adequate explanation is given for the disappearance of the bond: Ward v. Letzkus, 152 Pa. 318; Welch v. Challen, 31 Kan. 696.
   Opinion by

Porter, J.,

Mary A. Young, executrix of the last will of Ferdinand Utennoehl, deceased, caused judgment to be entered in the court below, on June 24, 1893, against Maria Buch, upon a judgment bond, purporting to have been executed by the defendant, which was found among the securities of the decedent. The defendant, on March 10, 1894, presented her petition to the court alleging' that her signature to the bond was a forgery, and obtained a rule to show cause why the judgment should not be opened. The plaintiff, Mary A. Young, executrix, filed an answer denying the allegations of the petition, and averring that the signature to the bond was the genuine signature of the defendant. Nothing further was done in the case until June 14, 1906, Avhen the defendant took the depositions of Maria Buch, the defendant, and Katie Buch, her sister, and filed the same in court. The plaintiff took no depositions, and the court, after argument, on July 7, 1906, discharged the rule to open the judgment. Mary A. Young, executrix, having died, A. C. Ilyus, administrator d. b. n. c. t. a. of Ferdinand Utermoehl, was, on July 21, 1906, substituted as plaintiff. The defendant appeals from the order of the court below discharging the rule to sIioav cause why the judgment should not he opened.

The learned counsel representing the appellant contends that because Maria Buch and Katie Buch testified in their depositions taken on June 14, 1906, that the signature of the former to the bond in question Avas forged, that a question was thus raised upon which the defendant was entitled of right to have the case submitted to a jury. We cannot, however, accept the view that upon e\rery allegation of forgery by a defendant the court to Avhich his petition for relief is addressed is bound to open a judgment. A proceeding to open a judgment is an appeal to the equity powers of the court; the judge exercises the functions of a chancellor, is vested with a discretion to pass upon the weight of the evidence and the credibility of the witnesses, and to dispose of the question presented upon equitable principles. The action of the court below will only be reversed in such a case Avhere an abuse of judicial discretion is apparent. These principles apply Avhere an allegation of forgery is involved Avith the same force and effect as in other cases : Shannon v. Castner, 21 Pa. Superior Ct. 294 ; Augustine v. Wolf, 215 Pa. 558.

The defendant and her sister, it is true, both testified that the signature of the defendant upon the bond was forged, but they did not have the paper before them at the time their depositions were taken, nor, according to their own testimony, had they seen it for over ten years. The attorney for the defendant had taken the bond from the'office of the prothonotary of the court on March 9, 1894, and has never since returned it to the files. He was attorney in this case for this defendant and still continues to be such; he was the mere agent of his client, and the neglect of one was the neglect of the other: Ward v. Letzkus, 152 Pa. 318. There was no evidence that any search, reasonable or otherwise, had been made for the paper, and in the absence of such evidence it could not be treated as a lost document. The failure to produce the paper, or to make any reasonable attempt to account for its nonproduction, was a circumstance which it was proper for the court below to take into consideration in determining the weight to which the testimony of the defendant and her sister, who had not seen the paper for many years, was entitled.

The bond having been taken from the record, by one for whose act the defendant is responsible, and never having been returned, the plaintiff was thus deprived of any opportunity to produce evidence as to the genuineness of the signature. The payee had died before the judgment was entered and one of the subscribing witnesses, Moses Buch, had died shortly after the granting of the rule to show cause why the judgment should not be opened. The failure to return the bond to the files thus rendered it absolutely impossible for the plaintiff to prepare for the proper disposition of this rule and, in case the judgment had been opened, would have rendered a fair trial of the case impossible. The deposition of the attorney for the defendant who had taken the paper from the files was taken, but failed to show that any search had been made for the paper or any reasonable effort made to produce it. The witness said he had no doubt he had taken the paper out of the office to prepare the petition upon which the rule to open the judgment was obtained, but that “ the matter had escaped his memory, as it had occurred some years ago.” This witness also testified that in November, 1895, at the trial of a case between H. G. Buch and Mary A. Young, executrix of Ferdinand Utermoehl, the bond in question had been exhibited by one of the counsel for Mary A. Young, executrix to Maria Buch, who was then a witness and had interrogated her with regard to the same. He did not testify, however, that he himself had then parted with the actual control and custody of the bond, nor that it had ever passed into the possession of any other person. The testimony of the witness made clearly manifest the fact that he considered the failure to produce the bond a matter of but little importance. His evidence fails to show that he had made either search for or inquiry about the bond. The case having been thus presented to the court below, we are not satisfied that the learned judge, when he refused to open the judgment, was guilty of an abuse of the discretion with which he was by law invested.

The judgment is affirmed.

Dissenting Opinion by

Morrison, J. :

I find myself unable to agree with the majority opinion in this case and will, therefore, endeavor to state the reasons moving me to dissent.

In discharging the rule to open the judgment the learned court below seems to have been controlled by the following considerations : (1) The bond was not produced and shown to the witnesses when their testimony was taken and this deprived the plaintiff of the right of calling witnesses and attempting to show that the signature thereto was genuine; (2) that the defendant was incompetent to testify for the reason that the other party to the thing in action was dead: Act of May 23, 1887, sec. 5, P. L. 158; (3) that the judgment should not be opened on the testimony of Katie Buch that the signature was a forgery, because, “ this testimony does not meet the requirements of the court in such cases, which is that in order to entitle the defendant to have a judgment opened, it is necessary for him or her to show by the testimony of two witnesses, or that of one witness and corroborating circumstances, the facts upon which the application is based.” I will briefly consider these reasons in their order.

It is true that the counsel for the defendant ought to have produced the bond, if he could, and that, unexplained, his failure to produce ifc tends to cast suspicion on the good faith of the defense. Also that in its absence, it will be difficult to try the question of its forgery fairly to either party. The court says he would refuse to open the judgment on this ground alone. But Mr. Davis testified in regard to the nonproduction of the bond and while his testimony may not be, in its character, and the manner of giving it, entirely satisfactory, yet I do not think, in the circumstances, that the court was justified in drawing so strong a presumption against the good faith of the defendant. Mr. Davis testified : “ I have not been able as yet to find that paper; I do not think I have it; did not know it was charged against me until to-day by the clerk.” This testimony does not show how much search Mr. Davis made for the bond, but it implies a search and if the other side desired a fuller statement it could have been brought out by cross-examination. Suppose the bond is honestly lost and the defendant and her counsel are unable to produce it, does it follow that a judgment entered on a forged bond must stand and be collected? I think not. If the judgment were opened and an issue framed, and at the trial the bond could not be produced, it would be a strong circumstance against the defendant when it appeared to have been last seen in the possession of her counsel, but sucli circumstance would not necessarily be conclusive. The defendant and her sister Katie both testified, positively, to having seen the bond and that the signature thereto is a forgery.

The majority opinion cites Ward v. Letzkus, 152 Pa. 818, in support of the position that Mr. Davis was the mere agent of his client and the neglect of one was the neglect of the other. I think there is a marked distinction between that case and the present one. That was a case where the appellant from the judgment of a justice put the filing of the transcript of appeal in the hands of his attorney who forgot to file it in time. The act of assembly fixed that time and the court had no power to extend it. The case was not as if the justice had refused to give a transcript. The attorney was the agent of the appellant and the latter could not claim immunity from his oversight. But where an attorney loses a paper, without fault on the part of the client, and there is no statutory obstruction, it does not seem logical nor just to deny the party the relief which' the allegation of forgery demands.

I am not prepared to agree with the learned court below that the defendant was incompetent to testify to anything relating to the judgment. I consider her competent to testify that she had seen the bond and that her name thereto was a forgery. This she did testify to pointedly.. It is conceded that she could not testify to what occurred between her and the decedent in his lifetime, but her judgment formed on an examination of the signature is nothing that occurred between her and the decedent. It is her independent judgment based on an inspection of the signature. In Toomey’s Est., Toomey’s Appeal, 150 Pa. 535, the court below expressly held to that effect; that it was in the nature, not of a matter oocurringin John Toomey’s lifetime, but of a fact, or state of facts, existing after his death. I think the reasoning of the learned court in that case is sound. On appeal the judgment of the court was affirmed, per curiam, but the Supreme Court did not explicitly pass upon that point. Upon sound legal principles and reason, it must be that if A forges an instrument against B purporting to show that the latter had borrowed money and given the obligation therefor, and A puts the writing in his safe and dies, and thereafter his legal representatives attempt to collect it, B can look at the instrument and testify that it is not his signature; that it is a forgery. The very nature of the transaction conclusively shows that A is not pretending to testify to anything that happened between himself and the decedent. I think the testimony of Maria Buch that the signature to the bond was not hers, but a forgery, was competent.

Was the court right in holding that in an alleged forgery case the judgment will not be opened except on the testimony of two witnesses, or of one witness and corroborating circumstances equivalent to another? I think not, and upon this question there is clear authority. In Schomaker, Appellant, v. Dean, 201 Pa. 439, Mr. Justice Fell (p. 441).said: “There is, however, no merit in the contention that the court erred in opening the judgment. ■ The defendant •in his petition alleged that he never signed nor delivered the note, nor authorized anyone to do so for him, and that his signature thereto was a forgery. The plaintiff in his answer averred that the note had been duly signed. This raised an issue on which the defendant was entitled to go to a jury.” See also Shannon v. Castner, 21 Pa. Superior Ct. 294, especially the opinion of Rice, P. J., on p. 320.

In the Schomaker case the court opened the judgment on the petition averring a forgery and an answer averring that the note was duly signed, without more. I think justice requires that when a person swears positively that his signature to a writing is a forgery, and he is only disputed by the writing itself, he is entitled to go to a jury.

In the present case the petition of Maria Buch avers that her name to the bond is a forgery, and her positive testimony is to the. same effect, and this is supplemented by the positive testimony of Katie Buch that the signature to the bond is not Maria’s but a forgery, and that the witness’ name and that of Moses Buch, as subscribing witnesses, are forgeries. Under this state of facts it seems to me clear that the learned court ought to have opened the judgment and permitted the question of whether the signature of the defendant to the bond was forged to have gone to a jury. Both sides in this contest seem guilty of serious laches and on that ground they stand about even.

The majority opinion cites Augustine v. Wolf, 215 Pa. 558, where it is said: “On application to open a judgment it is proper for the court below to weigh the evidence and to decide according to the preponderance thereof, and the appellate court will not reverse for the exercise of a sound discretion.

“The court to which an application is made to open a judgment may judge the weight of the evidence and the credibility of the witnesses, and is not bound, even when there is a conflict of testimony, to send the case to a jury. The whole proceeding resolves itself into the exercise of a sound, judicial discretion.” I fully recognize the above as the settled law on this question. But that ease, on its facts, differs widely from the one at bar. There the evidence was in conflict. Here, we have the defendant as soon as she learned of the judgment, and ever since, insisting that her name to the bond is a forgery. All of the testimony in the case supports that contention. The appellee offered no testimony whatever, and in refusing to open the judgment, judging from the testimony and the reasons given by the court below, I am forced to the conclusion that a sound judicial discretion was not exercised.

Considerable importance is given by counsel for appellee to the alleged fact that Maria Buck executed the bond in 1880 and paid interest thereon until April 1, 1892. But where is the evidence that she paid any interest on this bond ? There is not a'scintilla of competent evidence to that effect. Evidence is alleged to be found in the indorsements on the bond, made by Unteymoehl, of the payment of,interest for about twelve years. But this is only the ex parte statement of the holder of the alleged forged instrument. If there had been competent proof of the payment by the defendant of interest on this bond for twelve years, it would have been very stróng evidence that she executed and delivered it. ’But there is no such evidence. It is just possible that Untermoehl made the indorsements on the bond without receiving a cent of interest, for "the very purpose of manufacturing evidence of. the genuineness of the instrument.

T would reverse the order discharging the rule, open the judgment, and send the question of forgery to a jury.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Cairns v. Chester City, Appellant.

      Municipalities — Sewers—Negligence—Contributory negligence — Waters —Evidence—Province of court and jury.

    In an action" of trespass against a city to recover damages for injuries resulting from the flooding of a cellar, the plaintiff cannot be charged with contributory negligence as a matter of law, where it appears that the plaintiff connected his premises with the city sewer under lawful authority from the city, and that for several years after the connection was made, the work of drainage went on undisturbed, leaving the cellar dry, and easily cleaned.
    Where a municipality in the exercise of its rightful powers has. constructed a public sewer, it. assumes the duty of maintaining it in a reasonable state of efficiency, and a failure to discharge such duty is an act of negligence, and will subject the municipality to an action for damages by a citizen whose property has been injured by reason of such failure.
    In an action against a city to recover damages for injuries resulting from the flooding of a cellar, the case is for the jury where the plaintiff shows that he connected his premises with the public sewer under authority from the city; that for several years the drainage was effectual-; that later the water began to back into' his cellar; that these occurrences became more and more frequent; that he repeatedly gave notice to the borough authorities without obtaining any relief and that finally, it appeared, that the sewer had been allowed to become so choked with sand and dirt that its volume and efficiency were greatly diminished thereby.
    In such a case where the defendant claims that the injuries were the result of the action of tides in a tidal river into which the sewer emptied, but the evidence shows that only under infrequent weather conditions, when heavy rain storms and unusual tides happened at the same time, was damage done to plaintiff’s premises, the defendant cannot complain of the verdict against it, if it appears that the court carefully instructed the jury that there could be no responsibility for injuries suffered by the action of the tides or forces not under the control of man.

      Municipalities — Negligence—Sewers—Damages—Measure of damages.

    In an action against a city to recover damages for injuries to a dwelling house caused by flooding from a broken sewer, the owner who is in the occupancy of the house, is entitled to recover for injuries affecting the structure itself, and also for the temporary destruction or diminution of the use value of the house; and the owner cannot be deprived of his damages for diminution in the use value of the house for six years prior to the bringing of the action, although the injuries began more than six years before the action was brought.
    Argued Nov. 22, 1906.
    Appeal, No. 204, Oct. T., 1906, by defendant, from judgment of C. P., Delaware Co., June T., 1903, No. 136, on verdict for plaintiff in case of Andrew Cairns v. The City of Chester.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, J J.
    Affirmed.
    Trespass to recover damages for injuries to a dwelling house alleged to have been caused by the flooding of the cellar of the house by water from a sewer. Before Johnson, P. J.
    The court charged in part as follows :
    It appears that the plaintiff lives on Second street, in the city of Chester, at the corner of Ward and Second, and owns two small brick houses, stores; some time about 1888 or along there he built the first of these houses; in 1891 he built the other; and that prior to that time the city of Chester had constructed a sewer on Second street which ran from his place westward to Townsend street and down Townsend street to the Delaware river. He connected .his house or cellar with this sewer on Second street by means of a pipe leading from the cellar (six-inch pipe I believe) to the sewer, and in that pipe he left a hole in the cellar, three inches across. His complaint is that by reason of the negligent maintenance of that sewer the water backed into his cellar through the pipe— through this hole, and injured his house, injured the walls of the house, so that it cracked, and depreciated its value by lowering the rent in the one house that he rented, and by preventing his using the cellar in the other. That is his claim. Now, the first question we shall submit to you is, whether or not in the construction of this pipe leading from the cellar to the sewer; whether in its reasonable and proper construction that hole should have been left in the pipe ?
    If you shall find that that was not necessary in its reasonable and proper construction and that he would have suffered no damage if that hole had not been there, that is the end of the plaintiff !s case and he cannot recover, and your verdict will be for the defendant; and in passing upon that question we do not intend' to restrict you to any particular witness. You have heard the plumbers. You have heard those who are familiar with the uses to which that hole was to be put, and if you shall find from all the evidence that in the reasonable and proper construction that was not necessary and that he would have suffered no damage if that hole had not been left there, then you shall find for the defendant, because, in the coui't’s view, that being found in the city of Chester’s favor he cannot recover.
    But if you pass that question and find from all the testimony in the case that in the reasonable and proper construction that hole was properly there, and that through it the water came and it injured his property, then pass to the next question. If you shall find that the water which flowed into the plaintiff’s premises was because of the inflow of the tide, of the water from the Delaware river, and find that this sewer was in proper order and condition, or, in other words, find that the dirt or mud which was in the bottom of it in no way affected that flow, then your verdict must be for the defendant, for in the court's view of the case, that if the flow of the water into his cellar came from the tides, caused wholly and entirely by the tides, and was not affected in any way by reason of this earth or dirt in the sewer, then jmur verdict must be for the defendant, and you need go no further, but if you find from the evidence that that was not the cause of it then you will pass to the next question.
    The claim of the plaintiff is, and the only claim in which we think he can maintain* his suit, that this injury to the plaintiff, to his buildings, was caused by the failure of the city of Chester to keep the dirt cleaned out of this sewer, and the theory of the plaintiff is that this injury was caused by the filling up- of the sewer opposite his place so that' when the water during a rain, ordinary rain storm, flowed into the sewer that the sewer was so nearly filled up with the water, filled up passed the aperture where he joined on to the drain pipe, and flowed the water back into his cellar. If you shall find from All the evidence in the case that that was the cause of it, and that that cause was by the failure of the city of Chester to keep this sewer cleaned out (because it was the duty of the city to maintain it in good order for the purpose for which "it was to be used), if that was the cause of this flow of water into his cellar — if you find that it was, then pas's to the next question. What will compensate him for the injury? [Now, he is entitled, if you find that he was damaged by reason of the neglect of the city of Chester, that is, the failure to maintain this sewer in a proper condition — if you find that he was injured by that or his property was, then we will instruct yóu that he was 'entitled to recover, first, whatever be may have lost by the depreciation of the rent in the one house, and whatever the depreciation was for the loss of the cellar in the other, because there was no rent from that.
    : Now, upon this question of rent. We do not intend to intimate what it should be. -You have heard the witnesses — the difference 'between what it would have brought if it had keen in the condition it would have beet! if the sewer had not been there, and the condition that it was made by the sewer, if id was changed and whatever that difference is this plaintiff will be entitled to recover from July 17, 1897,'until to-day. Now, there is some dispute about the (as you will notice) depreciation caused by this cellar being wet — some contradiction of the testimony about the amount of rent he did receive some time in 1891. Take all the testimony, and he will be entitled to receive whatever that difference will be.] [11]
    [Then it is also claimed that the building has been damaged : that the water in the cellar undermined in some way or another the walls of the building, and that they settled and cracked the front of the building fronting on Second street, one of the buildings. I am not sure whether both or not.
    Mr. Geary: I think he said both buildings.
    The Court: He claims that by reason of the water in the cellar that it undermined or affected the foundations of the buildings and that the walls settled and cracked the front of his building, and he claims to be compensated for that. Now, the evidence upon that point is very contradictory. And you will pass upon that question. First, whether or not there was any settling of the walls, and, if so, did they cause this crack in the building? Whatever will be necessary to compensate him for the damage done to that building, he is , entitled to it.] [12]
    Defendant presented these points:
    2. If the injury to plaintiff’s property resulted from water from the sewer backing on to or flooding it through or by reason of the connection from it to his property, the city is not liable and your verdict should be for the defendant. Answer: We answer that if the injury resulted entirely from the action of the tides, and the sewer was properly maintained, this point is affirmed. In other words, if this sewer was properly maintained and this injury to the plaintiff arose entirely from the tides, than the plaintiff cannot recover, and your verdict must be for the defendant. [1]
    3. If the plaintiff’s cellars were flooded from the sewer through the connection prior to six years before suit brought, the same was notice to him, and he thereafter retained the connection at his own risk, and the verdict must be for the defendant. Answer: That is refused. We cannot say to you that because he did not bring his suit as soon as he discovered it that he is not entitled to recover. The fact, if it be a fact, that he did not bring this suit for ten or twelve years after he had noticed it you may take into consideration in passing upon the question whether or not he has been damaged and whether he has been damaged in the way he says he has. [2]

      4. Neither the borough of South Chester nor the city of Chester, the municipalities wherein the plaintiff’s property has been located since they were constructed in 1888 and 1891, required or compelled the said plaintiff to connect his cellar with the said sewer, or to maintain said connection; the said connection was, therefore, permissive only, and at the risk of the said plaintiff. Answer: Much of that we might affirm, but we cannot say that it was at the risk of the plaintiff. Therefore, it is refused. [3]
    5. The connection from the plaintiff’s cellar to the sewer was permissive only, and the said cellar having been flooded prior to six years before the institution of this suit and as such flooding was sufficient notice to the plaintiff that his property was likely to be injured if he still maintained it, his maintenance of it thereafter was at his own risk, and the defendant is not responsible or liable for any damages that happened after such first flooding. Answer : That is refused. [4]
    7. The only damages the plaintiff is entitled to recover in this case, if he is entitled to recover any, are the cost of closing the connection or opening from his cellar through to the pipe that led into the sewer, the cost of a vent box at the curb, and possibly the cost of cementing the cellar of the house on the corner, and any other incidental and necessary expenses arising and growing out of the closing of said connection and ■ hole. Answer: That is refused. [5]
    8. Under all evidence the verdict should be for the defendant. Answer : The eighth point is refused, too. [6]
    Verdict and judgment for plaintiff for $813.20. Defendant appealed. •

      Errors assigned were (1-6,11,12) above instructions, quoting them.

      A. A. Cochran, for appellant.
    The flooding was mainly due to the forces of nature, and, therefore, it was an act of God. In any aspect it was damnum absque injuria: Berninger v. Sunbury, etc., Ry. Co., 203 Pa. 516 ; Taylor v. Canton Twp., 30 Pa. Superior Ct. 319.
    It is the duty of a party injured by a breach of contract or tort to make reasonable effort to avoid damages therefrom, and such damages as might by reasonable diligence upon his part have been avoided are not to be regarded as a natural and proper result of the defendant’s acts. There can be no recovery, therefore, for damages which might have been prevented by reasonable efforts on the part of the party injured : Chamberlin v. Morgan, 68 Pa. 168; R. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. Repr. 105).
    There is extensive authority for the position that in a case of this kind the measure of damage is the cost to the plaintiff of obtaining relief, if it can be obtained. If not, then the measure would go to his loss. At least, he must make a reasonable and proper effort for relief before he can claim to be paid for his full loss : Barclay R. R. & Coal Co. v. Ingham, 36 Pa. 194 ; Eshleman v. Martic Twp., 152 Pa. 68 ; Elder v. Lykens Valley Coal Co., 157 Pa. 490 ; Mellick v. R. R. Co., 203 Pa. 457 ; Talley v. Counter, 93 Mich. 473 (53 N. W. Repr. 621) ; Galveston, etc., R. R. Co. v. Becht, 21 S. W. Repr. 971.

      A. B. Geary, for appellee.
    If the flooding of the cellar was caused by improper construction of the sewer or permitting it to become obstructed, the defendant is liable : Vanderslice v. Phila., 103 Pa. 102; Haus v. Bethlehem, 134 Pa. 12; Allentown v. Kramer, 73 Pa. 406 ; Blizzard v. Danville Boro., 175 Pa. 479 ; Owens v. Lancaster, 182 Pa. 257 ; Gift v. Reading, 3 Pa. Superior Ct. 359 ; Boehm v. Boro, of Bethlehem, 4 Pa. Superior Ct. 385; Cooper v. Scranton City, 21 Pa. Superior Ct. 17.
    If the tide did interfere with the flow of the water, and that should be considered an act of God, and the negligence of the defendant concurred with that act of God in producing the injury, the defendant was liable, and the question was for the jury: Helbling v. Allegheny Cemetery Co., 201 Pa. 171; Siegfried v. South Bethlehem Boro., 27 Pa. Superior Ct. 456 ; Toole v. Del., Lack. & Western R. R. Co., 27 Pa. Superior Ct. 577.
    The burden of proving contributory negligence was on the defendant, and the question was not so clear that the court could have given binding instructions for the defendant: Baker v. Westmoreland & Cambria Natural Gas Co., 157 Pa. 593.
    The plaintiff surely had the right and was justified in assuming that this sewer would be cleaned: Penna. R. R. Co. v. Werner, 89 Pa. 59 ; Thomas v. Kenyon, 1 Daly (N. Y.), 132; Pittsburg v. Grier, 22 Pa. 54; Spangler v. San Francisco, 84 Cal. 12; Barton v. Syracuse City, 37 Barbour (N. Y.), 292; Phila. & Reading R. R. Co. v. Hendrickson, 80 Pa. 182.
    October 7, 1907:
    The case which rules the one under consideration is Gould v. McKenna, 86 Pa. 297.
    Where an injury in such cases is not permanent, the measure of damages is the cost of restoring the property to its former condition, together with compensation for the loss of its use and of rental: Helbling v. Allegheny Cemetery Co., 201 Pa. 171; Gift v. City of Reading, 3 Pa. Superior Ct. 359 ; McCartney v. Phila., 22 Pa. Superior Ct. 257.
   Opinion by

Head, J.,

Unless the learned trial court erred in declining to hold, as matter of law, that the plaintiff was guilty of contributory negligence, there is no just ground for criticism of the manner in which that question was submitted to the jury. If the existence of such negligence could be fairly inferred from any fact or facts developed in the testimony, such inference must have rested on the theory (a) that the plaintiff had no legal right to connect his premises with the sewer, leaving an opening in the connection to drain his cellar and vent waste water therefrom ; or (b) that, conceding his right to the use of the sewer, he had constructed or maintained his connection in an unusual, .unskillful and negligent manner, and thus caused, in whole or in part, the injury of which he complained. But in urging the adoption of either of these theories the defendant is confronted with testimony sufficient, if believed by the jury, to establish the following facts. The sewer was built by the borough and part, at least, of the cost assessed on the abutting properties, including the plaintiff’s. The defendant then, by general ordinance, authorized its use by property owners, regulated the manner of such use and, in consideration of the payment of a license fee, issued formal permits to citizens desiring to connect with the sewer. The plaintiff paid his fee and received his license. There was nothing in the ordinance or license prohibiting any use to which the plaintiff has subjected the sewer. The system of drainage adopted wasMesigned and constructed by a plumber and was not different in plan or workmanship from those in current use by other citizens. If, as we say, the jury accepted the evidence tending to establish these facts, it ought to be clear enough that this case is substantially different from Dasher v. Harrisburg, 20 Pa. Superior Ct. 79, cited and relied on by the learned counsel for appellant. In that case, “ the plaintiff’s predecessor in title had connected the premises owned by the plaintiff with the sewer in violation of city ordinances which required the consent of the city authorities to be first obtained, the payment of a fee for the privilege of connecting, and that the construction shall be done under the supervision of the city engineer.” We note in the printed argument 'for the appellant the following statement: “ In this case it was shown that there was no ordinance or resolution of council of the borough of South Chester providing for the authorizing of or permitting property owners to connect with public sewers”’ We must regard this as an error into which counsel inadvertently was led because we find in the record, “ An ordinance relating’ to the streets, to tap for either sewer or water,” approved October 8, 1888, in which it is provided that, “all property owners of the said borough who tap the water pipe or sewer will be required to have the street put in as good condition as they found it in six dciys,” etc. Another ordinance approved October 13, 1890, provided, inter alia, “ any person desiring to make sewer connections (on Second street) shall pay to the street commissioner a sum equal to one dollar per square yard for the pavement desired to' be removed,” etc. No ordinance on this subject older than the one first quoted seems to have been offered in evidence, although the record shows that a sewer license No. 77, was issued on September 16, 1887, to the plaintiff’s contractor for which a fee of $1.50 was paid.

But beyond all this, it was shown by evidence, practically undisputed, that for several years after the plaintiff’s premises were connected with the sewer, the work of drainage went on undistlirbed, leaving his cellar dry and easily cleaned. From this a jury might fairly infer that the proximate cause of the floodings and consequent damage, which later began to happen, was not any fault in either the design or the workmanship of the plaintiff’s connection, but should be looked for elsewhere. Upon such a state of facts we are unable to point to any rule of law or fixed standard of legal duty, imposed by statute or declared by judicial decision, of which the plaintiff’s conduct could be clearly said to be a violation. This being so the court could not have rightfully declared, as matter of law, that plaintiff had been guilty of contributory negligence and the submission of that question to the jury, in a proper charge, left the appellant without just cause for complaint.

Whilst the construction of public sewers, to promote the health and comfort of the citizens, is a municipal function for the exercise of which ample powers have been given to our cities and boroughs, yet it has ever been held that the time when and the conditions under which such powers should be exercised are questions to be determined exclusively by the municipality itself. It follows that the citizen can have no cause of action against his local government because it has not provided a sewer to carry off surplus water, sewage, etc., the presence of which is detrimental to his property. But it is equally clear that having, in the exercise of its rightful powers, constructed a public sewer, the municipality assumes the duty of maintaining it in a reasonable state of efficiency, so that the public moneys expended in its construction may not be wasted, and what was designed for a public benefit be permitted to lapse into an injurious or dangerous nuisance. A failure to discharge that duty is an act of negligence and will subject the municipality to an action for damages by a citizen whose property has been injured by reason of such failure. The many cases declaring this principle are so well known they need not be cited here.

It was on precisely such an alleged breach of duty that the present plaintiff planted his right to recover. To sustain his claim he showed the facts already adverted to as to the construction of the sewer, his connection with it and the good service it rendered for a considerable period of time. That later the water began to back into his cellar ; that these occurrences became more and more frequent; that he repeatedly gave notice to the borough authorities without obtaining any relief and that finally, it appeared, that the sewer had been allowed to become so choked with sand and dirt that its volume and efficiency were greatly diminished thereby. Upon this state of facts he asked the jury to find that his damages were the result of the failure of the borough to perforin its legal duty in maintaining the sewer in proper condition. The facts being established by the verdict, unless some intervening and adequate cause for the injury were shown, the conclusion reached by the jury could not be said to be either unreasonable or unwarranted.

The defendant stoutly contended before the jury that it had found such a cause in the action of the tides in the Delaware river into which the sewer emptied. Much testimony was produced to support this contention. But there was also evidence tending to show that only under infrequent weather conditions, when heavy rain storins and unusual tides happened at the same time, did damage come to the plaintiff from such causes. Besides, during the years when there was no trouble and no injury, these natural forces were operating under the same laws that later controlled their action. The jury might, therefore, decline to accept the defendant’s claim that the damage suffered by the plaintiff was wrought by an act of God rather than a breach of duty by the municipality. The learned trial court carefully instructed the jury that no person could be held responsible for injury suffered by the action of the tides or forces not under the control of man, and no fault can be found, from the standpoint of the defendant, with the charge in this respect.

There remains to be considered the assignments which attack the correctness of the charge as to the measure of damages. The verdict having established, after a fair submission of the questions, that the defendant was negligent in permitting its sewer to become choked with sand and dirt; that this negligence was the cause of the injury complained of and that the plaintiff was free from contributory negligence, what was the proper measure of the latter’s recovery? Undoubtedly compensation, or in other words the restoration of his property to its former condition — if it could be so restored for less than its value — plus the money lost by him by reason of his inability to use and occupy it during the period of injuty as shown by the pleadings and evidence. The learned trial court, as we understand his charge, instructed the jury that the cost of repairing cracks in the wall, washed-out mortar joints, etc., if injured by the negligence of the defendant within six years, would measure the damage to the building; whilst the loss of rental value attributable to the same cause, would fairly measure the damage to the plaintiff’s right of use and occupation. _ As there was testimony tending to prove both kinds of injury, viz.: temporary, destroying or diminishing the use value; permanent, affecting the structure itself, we are unable to see in what other way compensation could have been brought about. Had the cellar been occupied by a tenant, he could have maintained an action for the one injury, the owner for the other. That the owner was also the occupier ought not to change the measure of the defendant’s liability. The rule thus laid down we regard as in entire harmony with the principles announced in Eshleman v. Martic Township, 152 Pa. 68; Elder v. Lykens Valley Coal Co., 157 Pa. 490, and kindred cases cited by appellant. Nor can we accept the doctrine, so earnestly urged by appellant, that because the injury began more than six years before the bringing of this action, and because the plaintiff did not then find and adopt some means of stopping it, even if that involved the closing of his cellar vent and the cutting out of his rain spouts, he must now be regarded as the responsible author of his own injury. True, the defendant could have, by general ordinance, prescribed any fair and reasonable methods for com nee ting with the public sewer and forbidden its use in other ways. It did not do so. The manner of the plaintiff’s use has not been found to be unlawful, unusual or negligent. He may not at first have known the cause of his injury. He may have relied, as he had the right to rely, on the assumption that the negligence would cease. If from one or both these reasons he bore 1ns injury during some years for which he cannot recover by reason of the statute, we cannot discover, in this fact, any reason why he is now remediless. The assignments of error are all overruled.

Judgment affirmed.


text:
    Clegg v. Seaboard Steel Casting Company, Appellant.

      Negligence — Master and servant — Vice principal — Fellow servant— Master mechanic — Repairs.
    A master mechanic of a steel works, is a vice principal and not a fellow servant of other employees of the works, where it appears that he has entire charge of the repairs, employs and discharges the repair men, and has the authority to determine, without being required to consult any higher officer, when and what repairs are necessary, and to select his own means for executing his plans.
    A vice principal is one to whom the master delegates a duty of his own which is a direct, personal and absolute obligation, from which nothing but performance can relieve him.

      Negligence — Master and servant — Safe place of employment — Vice principal.

    The obligation of a master to furnish to his servant a reasonably safe place in which to work, is a direct, personal and absolute obligation, and if such a duty is delegated to an agent, such agent is a vice principal.
    The imperative obligation upon a master to furnish to his servant a safe place in which to work, is not discharged by the master merely by seeing that the working place was safe, when the relation began; he must continuously furnish it, that is, maintain it, in that condition; and the rule extends to the means provided on the master’s own premises by which the servant obtains access to his working place.
    In an action against a corporation operating a steel works, by an employee, to recover damages for personal injuries, it appeared that the plaintiff fell into an open ditch on the 'defendant’s premises, and was injured. The ditch had been opened over night by the defendant’s master mechanic who had entire charge of the repairs of the plant. When the plaintiff was on his way to his work in the morning, he approached the ditch without being aware of its existence. There was evidence on behalf of the defendant that warning of the danger was given by a burning torch. The plaintiff, however, testified that, at the moment he passed, no such light was visible, either because the torch was not then actually burning, or because its light was swallowed up in, and obscured by, the clouds of steam and fog then rolling along the surface of the ground. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      Negligence — Judgment—Wrong reason for rightful conclusion — Motion for judgment n. o. v.

    Where the court refuses a motion for judgment non obstante veredicto, and in its opinion gives a wrong reason for a rightful conclusion, and it appears that there is no trace of the erroneous view in the record of the trial, nor that it was in any way productive of the verdict that was rendered, the appellate court will not reverse the judgment because of the wrong reason thus given.
    Argued Nov. 23, 1906.
    Appeal, No. 224, Oct. T., 1906, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1904, No. 184, on verdict for plaintiff in case of Albert Clegg v. Seaboard Steel Casting Company.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for 11,033.33. Defendant appealed.

      Errors assigned were (1) in not giving binding instructions for defendant; and (2) in not entering judgment for defendant non obstante veredicto on the whole record.

      Wm. I. Schaffer, for appellant.
    The plaintiff was an employee at the time of the injury: Labatt on Master and Servant, 1822; Ewald v. Chicago, etc., R. R. Co., 70 Wis. 420; McGuirk v. Shattuck, 160 Mass. 45 (35 N. E. Repr. 110); Helmke v. Thilmany, 107 Wis. 216; Walbert v. Trexler, 156 Pa. 112.
    If the plaintiff was not a servant at the time of the accident, then the defendant owed him no duty. If he was in the works at a reasonable hour, he was a servant and is subject to the co-employee rule: Walbert v. Trexler, 156 Pa. 112.
    A master is not bound to indemnify one servant for injuries caused by the negligence of another servant in the same common employment as himself, unless the negligent servant was the master’s representative: 2 Labatt on Master and Servant, p. 1304; Casey v. Penna. Asphalt Paving Co., 198 Pa. 348.
    In order to constitute one a vice principal, he must have general power and control over the business and not mere authority over a certain class of work or a certain gang of men: Labatt on Master and Servant, sec. 519, p. 1437 ; New York, Lake Erie & Western R. R. Co. v. Bell, 112 Pa. 400; Duncan v. A. & P. Roberts Co., 194 Pa. 563.
    Under the doctrine of Prevost v. Citizens’ Ice & Refrigerating Co., 185 Pa. 617, which is the leading authority in the United States on the second branch of the vice principal doctrine, no vice principalship was shown in this case : Bemisch v. Roberts, 143 Pa. 1; Durst v. Carnegie Steel Co., 173 Pa. 162; Labatt on Master and Servant, sec. 612 a; Filbert v. D. & H. Canal Co., 121 N. Y. 207; Hurley v. Lukens Iron & Steel Co., 186 Pa. 187; Auburn v. Tube Works Co., 14 Pa. Superior Ct. 568 ; Ingram v. Lehigh Coal & Nav. Co., 148 Pa. 177.
    The leaving open of trapdoors by employees as a result of which other employees are are injured will not permit of a recovery against the employer: Pawling v. Hoskins, 132 Pa. 617; Clough v. Hoffman, 132 Pa. 626.

      A. B. Geary, for appellee.
    Witsil had complete and absolute charge of all repairs and the accident was caused by failure to perform the absolute duty of the defendant to furnish the plaintiff with a safe place to go to and from his work : New York, etc., R. R. Co. v. Bell, 112 Pa. 400; Prevost v. Ice, etc., Co., 185 Pa. 617; Mullan v. Steamship Co., 78 Pa. 25; Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Lewis v. Seifert, 116 Pa. 628 ; Prescott v. Ball Engine Co., 176 Pa. 459.
    The duty to keep the pathway along -which' the workmen traveled free from obstructions, or have the same guarded, was a duty of the appellant which was a direct, personal and absolute obligation from which nothing but performance could relieve it: Hoffman v. Clough, 124 Pa. 505; Wannamaker v. Burke, 111 Pa. 423 ; Johnson v. Bruner, 61 Pa. 58 ; Lewis v. Seifert, 116, Pa. 628; Prevost v. Ice, etc., Co., 185 Pa. 617 ; Casey v. Penna. Asphalt Paving Co., 198 Pa. 348; Finnerty v. Burnham, 205 Pa. 305 ; Lillie v. American Car & Foundry Co., 209 Pa. 161; Lininger v. Westinghouse Air Brake Co., 210 Pa. 62; Schiglizzo v. Dunn, 211 Pa. 253 ; New v. Milligan, 27 Pa. Superior Ct. 516 ; Weller v. Aberfoyle Mfg. Co., 28 Pa. Superior Ct. 102.
    This includes a reasonably safe pathway to walk in going to and from the shop where he is employed: Payne v. Reese, 100 Pa. 301; Vanesse v. Catsburg Coal Co., 159 Pa. 403 ; Baird v. Pettit, 70 Pa. 477.
    October 7, 1907:
   Opinion by

Head, J.,

In his charge to the jury the learned trial court stated most of the material facts on which the plaintiff’s claim was based, and the two questions as to which the defendant craved special instructions, in the following language, viz.: “ It appears that on December 3, 1902, this plaintiff, who was an employee of the Seaboard Steel Casting Company, was going to his work in the morning somewhere near 7 o’clock, quarter ’before 7, or somewhere about that time, and while passing over the route, the usual route I think he said he took, he slipped into, or fell into this ditch. It appears that on the day before, there being something the matter with the steam that heated one of the departments of this establishment, a ditch was dug along the line of the steam pipe to ascertain a leak, and near this pathway over which the plaintiff traveled, an opening was left which had been dug, he said, four or five feet long. Some of the other witnesses say ten or twelve feet long and about fifteen or eighteen inches wide. He says that on this morning he was passing along this pathway and when he got to what has been termed the comer of the scrap pile where he turned short around to the left, he there stepped into this ditch. The great battle has been fought here over two questions: First, whether the plaintiff did exercise due and reasonable care; and next, whether the defendant did all that it was reasonable it should do under the circumstances ? ” The court concluded that both of these questions were questions of fact and submitted the whole case, on both branches, to the jury.

The learned counsel for the defendant did not then contend and does not now argue that the court should have declared, as matter of law, that the plaintiff was guilty of contributory negligence. The evidence on this point was conflicting. There was indeed very strong and persuasive testimony from which the jury might well have reached a different conclusion on this question, and the' tenor of the general charge and the answer to the defendant’s first point show that the trial court was duly impressed by it. But that court had no right, nor have we any, to usurp functions which, from time immemorial, the law has committed to another tribunal. We may therefore dismiss this subject without further consideration.

By its second point the defendant asked the court to hold, as matter of law, that “ the negligence in this case, if any, was that of a coemployce of the plaintiff, and the plaintiff, therefore, is not entitled to recover.” This was refused for the reason that “to affirm that point would be to take the case from the jury. ... It is a question for you whether, under all the circumstances, the verdict shall be or shall not be for the defendant.”

Here was a distinct specific request for the application by the court to the case, as it then stood, of the well-established rule of law “ which holds that the master is not responsible for an injury received by an employee caused by the negligence of a coemployee or fellow workman.” Here we may pause to observe that it is obvious this point of the defendant, the only one inviting a ruling on a distinct legal proposition, necessarily assumed as' a fact in this case, that the plaintiff, at the time of his injury, was an employee of the defendant. The court refused the point, not because of any question as to the relation then existing between the parties, but for the reason quoted. The only point presented by the counsel fo.r the plaintiff himself, and the answer thereto, clearly indicate that both counsel and court regarded it as an undisputed fact in the case that the plaintiff was in the service of the defendant. The onlj- reference made to this question in the general charge is in the opening sentence already quoted where the plaintiff is called “ an employee.” It seems clear, therefore, to us that throughout the trial the case proceeded on the assumption, unquestioned by anybody, that the relation of the parties, at the time of the plaintiff’s injury, was that of master and servant, and the verdict of the jury, on the questions of fact submitted, cannot now be fairly said to have been induced or in any way influenced, by any different idea of that relation that later was suggested to or adopted by the court below. The significance of these remarks we will refer to later on and now return to a consideration of the question raised by the second point and the answer thereto. This will involve the statement of some additional facts. It is of course conceded that the place where the accident happened was within the premises and plant of the defendant, the path, along which the plaintiff was then traveling, leading from the main entrance to the pattern shop where he was employed. The obligation of his service required the plaintiff to be at his post prepared to begin work at seven o’clock. He had reached the plant about eighteen minutes before that hour and the accident occurred at approximately ten minutes later.

The repairs to the buried steam pipe which necessitated the opening of the ditch, into which the plaintiff stepped at the turn of the path, had been ordered by one Witsil. They were begun the day before the accident and were conducted under his personal supervision, although there was a foreman in immediate charge of the men. Witsil describes in his testimony how the work was done, and admits that they left a section of the ditch unfilled about twelve feet long. Who was Witsil? What were the nature and extent of his authority? Did he occupy towards the plaintiff the relation of a fellow-servant- or a vice principal ? He was the master mechanic of the defendant, and in his own testimony, not contradicted, we find the following :

“ Q. I am asking you what are your general duties at the Seaboard? A. As.chief engineer and as master over all the works of all work pertaining to the work. Q. Do you mean repair work ? A. Repair work. Q. You have charge of all the repair men, have you? A. Yes, sir. Q. And hire and discharge them ? A. Yes, sir.”

From this testimony it may be fairly deduced that as to one important branch of the defendant’s business, the keeping of its plant and machinery in a state of efficiency and repair, Witsil was invested with the full authority of his principal. He appears to have determined, without being required to consult any higher officer, when and what repairs were necessary, and to have selected his own means for executing his plans. Doubtless he was responsible to his superiors for the results obtained, but there is no evidence from which a jury could find that within his sphere of action his work was regulated by any discretion or oversight but his own. This would bring him within the first branch of the definition of a vice principal announced by Mr. Justice Mitchell in Prevost v. Citizens’ Ice. etc.. Co., 185 Pa. 617.

But, according to the second branch of the same definition, a vice principal is also “ one to whom he (the master) delegates a duty of his own which is a direct, personal and absolute obligation, from which nothing but performance can relieve him.” The obligation of a master to furnish to his servant a reasonably safe place in which to work is such direct, personal and absolute obligation, “ and while the master may delegate these duties to an agent, such agent stands in the place of his principal:” Lewis v. Seifert, 116 Pa. 628. We need hardly add that this imperative obligation to furnish to his servant a safe place in which to work could not be discharged by the master merely by seeing that the working place was safe when the relation began. He must continuously furnish it, that is, maintain it in that condition. The same reason that supports the rule requiring the master to keep reasonably safe the place in which his servant actually performs his work, would necessarily extend the rule to the means provided on his own premises, by which the servant obtains access to his working place.. It would be absurd to say that a factory owner performed his duty by providing and maintaining a safe place for his operative to work on the fifth floor of his building if, at the same time, he permitted the stairway, by which his employee reached it, to get into such a condition as to become a menace to the lives and limbs of those using it; or that a mine owner, after providing a safe room in which his miner could work, could, without liability, fail to protect and secure the gangway, by which that room was reached. That our law furnishes no foundation for any such conclusion is abundantly established in Vannesse v. Catsburg Coal Co., 159 Pa. 403 ; Payne v. Reese, 100 Pa. 301, and kindred cases. It was the duty of the defendant, therefore, to keep the pathway on which the plaintiff was traveling, at the time of the accident, reasonably safe. If the master, in the course of his business, were required himself to make the working place, or the approach thereto, temporarily unsafe, his plain duty would be to provide such notice and warning of that condition that no reasonably careful servant could suffer therefrom.

If the defendant failed to discharge that duty it cannot escape responsibility because it selected Witsil to do the work. In such a case, as we have seen, the agent selected is regarded as a vice principal and the master must answer for his negligence : Lewis v. Seifert, 116 Pa. 628. We are unable to discover, therefore, that the defendant has any just ground of complaint because the court refused to affirm its second point, but permitted the jury to find, on the uncontradicted testimony of Witsil himself, that his relation to the plaintiff was that of a vice principal.

Was the act of the defendant in leaving this open ditch alongside the pathway, traveled by its employees, an act of negligence? Certainly it was not negligence per se. The master had the undoubted right to make necessary repairs. But if in doing so he rendered unsafe the pathway of his servant, the exercise of the right created the consequent duty either of barricading the dangerous opening or giving timely notice of its existence by lights or other notice calculated to warn the traveling employee. Here again we have a serious conflict in the evidence. Whilst there is strong testimony that warning of the danger was given by a burning torch, the plaintiff positively asserted that, at the moment he passed, no such light was visible, either because the torch was not then actually burning or because its light was swallowed up in and obscured by the clouds of steam and fog then rolling along the surface of the ground. In this case, however, the fact that the plaintiff saw no danger in the presence of the steain does not necessarily bring his conduct within the lines of the criticism made, of somewhat similar conduct, by Mr. Justice Gordon in Payne v. Reese, 100 Pa. 301, because the plaintiff testified that under the atmospheric conditions existing on that morning, it was no unusual thing to find the. steam from the main exhaust of the plant, unable to rise through the heavy air, clinging to the earth awaiting more favorable conditions. The court, therefore, was obliged to submit to the jury the question whether or not the defendant had given proper and reasonable warning of the existence of thes danger it had created.

The record of the trial which we have thus gone through, step by step, clearly shows that, under a proper submission, a jury has found in favor of the plaintiff every fact necessary to establish his light to recover from the defendant, regarding the latter solely in the light of an employer, the former in that of an employee. What remains? After the verdict the defendant moved for judgment, notwithstanding the verdict, under the act of 1905. Clearly no such judgment could be legally entered unless, at the conclusion of the trial, the court should have given binding instructions for the defendant. We have endeavored to show that the record of the trial discloses no warrant for any such action on the part of the court, and the motion was properly denied. It is true that in the last paragraph of his opinion refusing the motion the court below said: “The accident happened before the plaintiff’s employment had begun for that day, therefore, he was not a fellow servant with any of the persons ordered to do the digging of the excavation or leave it uncovered.” This position is vigorously assailed by the able counsel for the appellant. Did the validity of the judgment appealed from depend on the soundness of this prop-position, we might find grave difficulty in affirming it. But why should we reverse the judgment and send the case back to he retried for what is, in substance and effect, nothing more than a wrong reason for a rightful conclusion? Were we to do so the case might be tried exactly as it was before and we would find no error in the record for the reasons we have fully given. And this is manifestly so because no trace of this erroneous view of the court, assuming it to be such, appears in the record of the trial, nor can we discover the slightest indication that it was, in any way, productive of the verdict that was rendered. As we have shown, the case was actually tried on the theory now contended for by the appellant, and we would accomplish nothing by ordering it to be tried again on the same theory. The assignments of error are, therefore, dismissed.

Judgment affirmed.


text:
    Smith, Appellant, v. Metropolitan Life Insurance Company of New York.

      Insurance — Life insurance — Beneficiary—Designation of beneficiary— Vested interest.
    Where a husband, in taking out insurance on his own life, designates his wife as sole beneficiary, and there is no reservation in the policy of a power in the insured to designate a new beneficiary, and no provision from which a power in the insured to designate another beneficiary in ease of the death of the wife, can be inferred, the vested interest of the wife in the policy cannot be divested without the consent of the wife during her life, or of her legal representatives after her death. In such a case an attempt by the husband, after the death of his wife to substitute his daughter as beneficiary, will be futile.
    Argued Dec. 6, 1906.
    Appeal, No. 227, Oct. T., 1906, by plaintiff, from order of C. P. Schuylkill Co., Jan. T., 1906, No. 36, refusing to take off nonsuit in case of Esther A. Smith v. The Metropolitan Life Insurance Company of New York.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on five policies of insurance. Before Marr, J.
    The facts appear by the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      James B. Reilly, with him George W. Ryon, for appellant.—
    The wife’s rights under the policy terminated with her death : Thomeuf v. Knights of Birmingham, 12 Pa. Superior Ct. 195 ; Herr v. Reinoehl, 209 Pa. 483 ; Cent. Bank v. Hume, 128 U. S. 195 ; Olmsted v. Keyes, 85 N. Y. 593.

      R. E. Koch, with him Guy E. Farquliar, for appellee.
    The following cases seem to us to clearly sustain the judgment of the court below: Waltz v. Mut. Aid Society, 5 Pa. C. C. R. 208 ; Anderson’s Est., 85 Pa. 202 ; Brown’s App., 125 Pa. 303; Entwistle v. Ins. Co., 202 Pa. 141; Glanz v. Gloeclker, 104 Ill. 573 ; Weston v. Richardson, 47 L. T. N. S. 514 ; Pence v. Makepeace, 65 Ind. 345 ; Allis v. Ware, 28 Minn. 166 ; Herr v. Reinoehl, 209 Pa. 483; Watt v. Gideon, 22 Pa. C. C. R. 499; Jones v. Jones, 23 Pa. C. C. R. 254.
    October 7, 1907:
   Opinion by

Porter, J.,

The plaintiff brought this action to recover upon five policies of insurance upon the life of her father, William F. Gordon, alleging that she had been properly designated as the beneficiary thereunder. The uncontradicted evidence produced by the plaintiff at the trial established that at the time the insurance under each of the policies was effected it was taken for the benefit of Anna E. Gordon, Lire wife of the insured, who was duly designated as the beneficiary thereunder, without any designation of an alternative beneficiary in case of the death of said wife during the lifetime of the insured. There was nothing in the evidence from which the reservation of a power in William F. Gordon to designate another beneficiary, in case of the death of his wife during his lifetime, could be inferred. The insurance company was notified, at the time the insurance was effected, of the designation of the wife of the insured as the sole beneficiary under the policies, and this the .insured under the provisions of the several policies had the right to do. Anua E. Gordon died in 1897, and her husband, the insured, survived her about eight years. About a year after the death of his wife the beneficiary under the policies, William F. Gordon, the insured, attempted to substitute the appellant as the beneficiary under the several policies by executing and delivering to the agent of the insurance company several papers, one for each of the respective policies, each entitled, “ Change of designation,” and setting forth that Anna E. Gordon had been designated as the person to whom the insured desired the benefits to be paid; that the insured desired to change said designation, and that he now designated the plaintiff, his daughter, as the person to whom he desired the benefits to be paid under the policies. No representative of the estate of Anna E. Gordon, the original beneficiary, was a party to this attempted change of the designation of the beneficiary. William F. Gordon, having continued to pay the premiums upon the several policies, died in .1905, and the plaintiff subsequently brought this action. The court below entered a judgment of nonsuit, which it subsequently refused to take off. The plaintiff appeals.

The absolute designation of Anna E. Gordon as the sole beneficiary under the several policies and the notice of such designation given to the company, at the time the insurance was effected, vested in the wife the beneficial ownership of the policies : Scott v. Dickson, 108 Pa. 6 ; Wise’s Estate, 182 Pa. 168; Hani v. German Life Insurance Co., 197 Pa. 276. Anna E. Gordon having been unconditionally designated as the sole beneficiary under the several policies, and there having been no reservation of a power in the insured to designate a new beneficiary, in the absence of any provision in the policies from which a power in the insured to designate another beneficiary, in case of the death of his wife, could be inferred, the vested interest of the wife in these policies could only be divested with her consent or by the act of the law : Anderson’s Estate, 85 Pa. 202; Brown’s Appeal, 125 Pa. 303; Entwistle v. Travelers’ Insurance Co., 202 Pa. 141; Herr v. Reinoehl, 209 Pa. 483. William F. Gordon, the insured, could not without the consent of his wife during her life, or of her legal representatives after her death, change the beneficiary under these policies ; that his attempt to do so was ineffectual necessarily follows.

The judgment is affirmed.


author: Beaver, J.,

text:
    Clairton Borough.

      Boroughs — Annexation of adjacent territory — Appeals—Quarter sessions —Acts of June 2,1871, P. L. 283 and April 22,1903, P. L. 247.
    The Act of April 22, 1903, P. L. 247, relating to the annexation of adjacent territory to boroughs, repeals the Act of June 2, 1871, P. L. 283, sec. 4, giving the right of appeal to the. quarter sessions.
    When the record of annexation proceedings is filed in the court of quarter sessions as provided by the Act of April 22, 1903, P. L. 247, the court has jurisdiction only to pass upon any irregularity in the record itself, upon the application of a party in interest. It cannot go behind the record and Open up the proceedings for the purpose of determining whether or not the town council had acted upon good and sufficient grounds, had properly considered the facts involved, or had exercised a proper discretion in the passage of the ordinance providing for annexation.
    Since the passage of the Act of April 22, 1903, P. L. 247, the remedy of a party aggrieved may be by a bill in equity in the common pleas for relief from the attempted extension of the boundaries of the borough.
    Argued Dec. 10, 1906.
    Appeal, No. 55, April T., 1907, by J. O. Percival, from order of Q. S. Allegheny Co., Sept. T., 1905, No. 35, quashing an appeal in the matter of the annexation of a part of Jefferson township in the borough of Glairton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal in proceedings to annex territory to a borough.
    From the record it appeared that a petition was filed by certain freeholders of Jefferson township praying that the proceedings annexing certain territory of the township to the borough of Clairton be declared void. The borough of Glairton filed an answer to the petition. A commissioner was appointed who took testimony and filed a report thereon, recommending the dismissal of the appeal. On exceptions to the report the court made the following order: “ And now, June 18, 1906, it is ordered that the appeal in this case be quashed.”

      Error assigned was the order of the court.

      J. P. Hunter, of Schoyer & Hunter, with him Mellvain, 6Murphy <$• Jones, for appellants.
    If jurisdiction is conferred upon a court in respect to any matter, and conditions precedent are necessary to the exercise of that jurisdiction, the court can inquire into the validity of the matters conditional upon which such jurisdiction is had: Devore’s App., 56 Pa. 163; Little Meadows Borough, 28 Pa. 256 ; Incorporation of Osborne Boro., 101 Pa. 284; Incorporation of Versailles Borough, 159 Pa. 43 ; West Phila. Borough, 5 W. & S. 281; South Chester Borough, 5 Del. Co. 281; Corry v. Corry Chair Co., 18 Pa. Superior Ct. 271; Hershberger v. Pittsburg, 115 Pa. 78; Erie v. Willis, 26 Pa. Superior Ct. 459.

      October 7, 1907:
    ‘The court of quarter sessions had jurisdiction to entertain this proceeding under the 27th section of the act of 1851, as amended by the Act of May 22, 1883, P. L.,39 : McConnell’s Est., 5 Pa. Superior Ct. 120 ; Hendrix’s Account, 146 Pa. 285; Com. v. Vetterlein, 21 Pa. Superior Ct. 587 ; Pittsburg’s App., 79 Pa. 317.

      Thomas M. Gcealey, with him Reed, Smith, Shaw Beal, and David A. Reed, for appellee.
   Opinion by

Beaver, J.,

In Donora Borough’s Appeal, 26 Pa. Superior Ct, 300, and in Washington Borough Extension, 26 Pa. Superior Ct. 296, we held, that “ The Act of April 22, 1903, P. L. 247, completely changes the mode of annexing adjacent territory to a borough and repeals the Acts of April 3, 1851, P. L. 320, sec. 30, June 2, 1871, P. L. 283, sec. 4, July 15, 1897, P. L. 296, and April 6,1899, P. L. 33.”

In the Donora Borough case, Judge McIlvaine, who heard the case below, said: “ As we view the law, it is this : The 30th section of the act of 1851, supra, ‘ directed and required ’ the borough council to annex adjacent territory, upon the pre-' sentation of a petition, and there was no appeal, unless it be under the provisions contained in section 27 of that act, paragraph II. The council had no discretion and could not consider the question of the expediency of annexing the territory. The minority had no tribunal at which they could be heard on this question. The act of 1871 allowed them an appeal, so that they could be heard before the grand jury and court. The purpose of the act of 1903, as we view it, was to take away this right of appeal and opportunity to be heard before the grand jury and court, and in lieu thereof give the borough council power to pass"an ordinance of annexation or to defeat it, so as to afford those interested against annexation a tribunal .where they could be heard. In other words, the borough counsel was made the sole tribunal at which the question of the expediency of annexation could be heard.”

We confined ourselves, in our opinion, largely to the consideration of the question of the inconsistency between the Acts of June 2, 1871, P. L. 283, sec. 4, which provided for an appeal, from the action of the town council in annexing territory, to the court of quarter sessions, and the act of 1903, supra, which omitted the provision relating to the right of appeal, and pointed out that, under the second section which distinctly repeals all acts or parts of acts inconsistent with the latter, the act of 1871, allowing such appeal, was distinctly repealed, and referred with approval to the opinion of the court below.

We said further: “ If, as intimated by the court, there should be any invalidity in the ordinance or if any of the provisions of the act were not fully complied with, the court of quarter sessions could be called upon by appeal to determine whether or not the steps required to constitute a legal admission of an outlying territory into the borough had been properly taken.”

The appellants in this case construe the latter declaration to decide that the court of quarter sessions has the right to allow an appeal, and, upon its consideration, to go behind the record, inquire into the facts and determine whether or not the borough council had properly exercised the discretionary power vested' in it by the terms of the act under consideration. The power to take an appeal from the action of the borough council, however, was entirely taken away by the repealing clause of the act of 1903, which, as we then pointed out, repealed the act of 1871', under which such an appeal was allowed.

The act of 1903 provides : “ Whenever the borough or town authorities shall extend the limits of such borough or town, as aforesaid, they shall file, in the court of quarter sessions of the proper county, a plan or plot, showing the boundary both of the original borough or town and of the section admitted, together with the certified copy of the ordinance, and a description of the boundaries both of the original borough or town and of the borough or town as extended, giving the courses and distances in words at length; which section shall, after the filing of the matter as aforesaid, be deemed part of said borough or town, and subject to its jurisdiction and government.”

The filing- of the plot or plan provided for in this section constitutes a record of the court of quarter sessions and is, of course, under the control of that court. If, therefore, there should be any irregularity in the record itself, it seems to us that the court might take cognizance thereof, upon formal application by any person interested, or under the provisions of section 27, paragraph 2, of the general borough act of 1851. Such application or complaint or such an appeal, if it can be so called, could, however, in the nature of the case, as we view it, relate only to the irregularity of the record. Upon inquiry by the court, it would be in effect a certiorari, bringing up the record, it is true, but such inquiry would be necessarily confined to a consideration of its regularity. It would confer no power upon the court to open up the proceedings for the purpose of determining whether or not the town council had acted upon good and sufficient grounds, had properly considered the facts involved, or had exercised a proper discretion in the passage of the ordinance providing for annexation. To hold otherwise would be a practical nullification of the repealing clause of the act of 1903 and would give full effect to the act of 1871.

We are not to be understood, by what has been said, as intimating that the appellants here have no remedy. Devore’s Appeal, 56 Pa. 163, was express authority for the right of persons aggrieved to resort to the common pleas in equity for relief from the attempted extension of the boundaries of the borough of Mount Pleasant, under the provisions of the act of April 3, 1851. That remedy is, of course, efficacious under the act of 1903 which, as we have heretofore held, repeals the 30th section of the act of 1851. This remedy has lately been resorted to and sustained in the late celebrated case of Sample v. Pittsburg, 212 Pa. 533.

We are not prepared to say that the second paragraph of section 27 of the act of April 3, 1851, as amended by the Act of May 22, 1883, P. L. 89, is not in force and may not be invoked for the purposes therein set forth, but, as we understand it, this section did not confer the right of appeal to the quarter sessions from an ordinance of annexation, so as to enable the court to inquire into the expediency of the action of the borough council in reference thereto. As to the details in the proceedings in the passage of the ordinance we must go back to the act of 1851, and if there had been any fatal defect in the said proceedings as prescribed in said act, a party aggrieved might perhaps lyy complaint to the court of quarter sessions have the matter inquired into. In such a case, however, the action of the court as provided in the act itself would be conclusive.

We have no intimation here as to the ground upon which the apppeal, which was specially allowed by the court of quarter sessions, was quashed. A commissioner was appointed who inquired into the facts aud made a report. Whether or not the court considered these facts in reaching its conclusion or whether, upon an examination of the record, it became satisfied that all the steps necessary to be taken to annex the part of Jefferson township to the borough of Clairton, which was declared annexed by the borough ordinance, had been taken, which is the more likely, we cannot say; but, upon an examination of the record, we fail to find any irregularity whatever and, therefore, presume that the court quashed the writ on the ground that the proceedings were regular, and that their authority went no further. If in this we are correct, we are satisfied that the court acted within the scope of its authority and properly disposed of the so-called appeal.

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