author: Head, J.,

text:
    Casey, Appellant, v. Canning.

      Easement — Deeds—Boundaries—Privies.
    1. Where an owner of land subjects part of it to an open, visible, permanent and continuous service or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be.
    2. Where 'four lots on which dwelling houses are erected are owned by one person, and at the common intersection of the four lots there has been constructed a large privy vault with a building over it divided by partition walls into four separate and distinct sections or privies for the use of the four houses respectively, and the owner conveys one of the lots by a deed whose boundaries include two of the contiguous sections or privies, and thereafter conveys to another person the contiguous lot by a deed whose boundaries do not include the contiguous privy section, the grantee in the first deed takes the land conveyed to him subject to the easement of the privy which had always been used by the tenants of the second lot conveyed.
    Argued Oct. 20, 1909.
    Appeal, No. 124, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 1,862, on verdict for defendant in case of Louise E. H. Casey, Trustee, v. John Canning.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and ¡Porter, JJ.
    Reversed.
    Trespass for interference with an easement. Before Barratt, J.
    The facts appear by the opinion of the Superior Court and by Casey v. Canning, 39 Pa. Superior Ct. 94.

      Error assigned was in entering judgment for defendant on the verdict.

      Roland R. Foulke, for appellant.
    The doctrine of implied grant applies: Grace Church v. Dobbins, 153 Pa. 294; Held v. McBride, 3 Pa. Superior Ct. 155.
    The use of the privy was a servitude not an estate: Murphy v. Campbell, 4 Pa. 480; Piro v. Shipley, 211 Pa. 36.
    The nature of the servitude is immaterial in applying the doctrine of implied grant: Phillips v. Phillips, 48 Pa. 178.
    The use of the privy was a necessary appurtenance: Zell v. Universalist Society, 119 Pa. 390.
    D. Webster Dougherty, for appellee.
    The right to the exclusive use, possession and enjoyment of land has always been considered an estate, a corporeal and not an incorporeal hereditament, and unless based on a grant can only be maintained by an adverse possession of twenty-one years: Huff v. McCauley, 53 Pa. 206; Leonard v. White, 7 Mass. 6; Harris v. Elliott, 35 U. S. 25.
    The precise question involved in this case was decided by this court in the case of Empire Steel & Iron Co. v. Lawrence, 27 Pa. Superior Ct. 620. See also Wood v. Truckee Turnpike Co., 24 Cal. 474; Jackson v. Hathaway, 15 Johnson (N. Y.), 447; Post v. Pearsall, 22 Wendell (N. Y.), 425.

      July 20, 1910:
   Opinion by

Head, J.,

In 1891. there was conveyed to one William Easby_ a parcel of land in the city of Philadelphia, on the southwest corner of Spruce and Factory or Cypress streets. The property was irregular in shape, fronting about eighteen feet on Spruce street and extending of that width clear through the block to the other street mentioned. Along that street, however, it fronted about sixty feet, making the whole piece L shaped. That portion of the property which fronted only on Factory street had a depth of about thirty-five feet. Although all of the property mentioned was conveyed by a description using only outside lines, as if it were one parcel, it had in fact been previously subdivided into five separate lots on each of which a dwelling house was erected. There were thus four houses on shallow lots facing south on Factory street, whilst one lot of considerably more depth faced north on Spruce street. The accompanying plan will show this subdivision. At the rear of the Spruce street lot, located partly upon it and partly on the shallow lot immediately west of it, there had been constructed a large privy vault with a building over it divided by partition walls into four separate and distinct sections marked on the plan A, B, C and D. As the property was conveyed to Easby, section B opened into the Spruce street lot and was used by its occupant. Section D opened into the rear lot, 2301 Factory street, and was used by the tenants of the dwelling house thereon erected. With the two western sections, A and C, we have no concern. How long this structure had existed and been thus used, the record does not disclose.

With the ground thus subdivided and improved, and with its consequent use thus visible.and apparent, Easby in 1892 conveyed to John Canning, the defendant, the Spruce street lot. The deed described it as fronting eighteen feet on Spruce street and extending back of even width along Twenty-third street a distance of seventy feet. It is not denied that the description in this deed plainly includes the two eastern sections B and D of the outbuilding already referred to. The deed was duly recorded. In 1893 Easby conveyed to the testator of the present plaintiff the remainder of the property. The description in that deed ju-st as clearly excludes the two sections of the outbuilding, although in point of fact no mention of said building or its use, either by way of grant or reservation, is contained in either deed.

There was no way in which section D could be entered from the Spruce street lot conveyed to the defendant, the only entrance thereto being through the premises of the present plaintiff at 2301 Factory street. On receipt of his deed the defendant was put in possession of the Spruce street lot to the extent that it had been used and enjoyed by the previous common owners or their tenants, whilst the later vendee of Easby took possession of the rear lot and enjoyed and used it as it had formerly been used without question or molestation from anyone. The testimony discloses that at the time of the alleged trespass, to be next referred to, there was a fence extending from Twenty-third street across the rear ends of the two lots, thus effectually shutting off the occupant of the Spruce street lot from any access to section D of the outbuilding, the entrance to which, as already stated, opened into the rear lot. The exact time when that fence was built does not appear.

It further appears that in the summer of 1904 some complaint by the board of health resulted in the expenditure of some money by the present plaintiff in order to drain the vault and put it in such condition as would make it conform with the requirements of the board. In the spring of 1905 the defendant, without any warning, tore down and removed the two sections of the outbuilding, B and D, which were embraced within the lines of the description in his deed. As the dwelling house at 2301 Factory street was not otherwise provided with toilet conveniences, its occupants were thus left entirely without them. To recover damages for the injury which the plaintiff alleges was thus wrongfully done to her property she brings this action.

She does not deny that the defendant is the owner of the land on which all of the building that he removed stood. Nor does she contend that any portion of it is included within the lines of her own deed. She rests her claim on the proposition that because of the manner in which the common owner had subdivided his property, and the visible uses to which it was subjected, there arose, upon his conveyance to the defendant, an easement, in favor of the premises she afterwards bought, to continue the use of the outbuilding in the same manner as it had been arranged by the common owner for the use of the several properties. She relies upon a rule of the law which is thus stated by Mr. Justice Mitchell in Grace Church v. Dobbins, 153 Pa. 294, “Where an owner of land subjects'part of it to an open, visible, permanent and continuous service or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be.” Of the existence of such a rule from early days in Pennsylvania there can be no doubt after an examination ,of the cases cited in the opinion from which we have just quoted. It was recognized and enforced by this court in Held v. McBride, 3 Pa. Superior Ct. 155, where the opinion of the late Judge Smith reviews the many cases asserting the doctrine. A study of the decisions of the courts of other states shows that the recognition of this principle is widespread, if not universal, in this country. If we were to look only at the reason of the rule as stated by Mr. Justice Mitchell, we might be led to the conclusion that the principle applied only when the easement was set up by the grantee as an implied grant, and not where it was asserted by the grantor, for the benefit of himself or a later grantee, as an implied reservation in the first grant. “This is the general rule founded on the principle that a man shall not derogate from his own grant,” says the learned judge. But it is clear enough that the rule in Pennsylvania, as well as in other states, is reciprocal, because the opinion continues, “The cases in which the subject has most frequently come before this court, are those in which the grantor has conveyed the servient tenement, and the question has been whether the purchaser took subject to the easement remaining in the estate of the grantor, Overdeer v. Updegraff, 69 Pa. 110, and the rule has been uniformly held to be as above stated.”

In- the case last mentioned Mr. Justice Williams says, “But if there had been no express reservation of the right to the use of the alley in the conditions of sale and in the deed executed and delivered to the purchaser, the latter would have taken it subject to the servitude imposed upon it by the decedent for the use and benefit of the occupants of the adjoining lot. It was a continuous and apparent easement, and the law is well settled that in such a ease the purchaser, whether at private or judicial sale, takes the property subject to the easement.”

Whilst then the principle of the implied reservation of an easement in favor of a grantor may not rest on precisely the same ground as the cognate doctrine of the implied grant of an easement in favor of the grantee, its foundation is none the less secure and substantial. It is well stated by Mr. Justice Vann in Wells v. Garbutt, 132 N. Y. 430, 30 N. E. Repr. 978, thus: “The doctrine of implied reservation rests upon the presumed intention of the parties as it is gathered from the conveyance, interpreted in the light of the circumstances surrounding them when it was executed, and with reference to which, as existing facts, they are supposed to have contracted.” So it was said by Chief Justice Hand in Powers v. Heffernan, 233 Ill. 597, “This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if instead of a benefit conferred a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.” The same idea, we think, is expressed by our own Chief Justice Gibson in Murphy v. Campbell, 4 Pa. 480, in the following language: “Were it necessary to put the cause on that point, the question would be, whether the use of the privy in contest could be brought within the operation of the plaintiff’s conveyance as a thing previously annexed to the subject of it; and the construction would be governed by the intention of the parties, deduced not only from their words, but from the previous disposition and enjoyment of the property.”

We are not able to agree with the learned counsel for the appellant that the case last cited is on all fours with the present one and therefore conclusively rules it, although the reasoning of the chief justice just quoted is in harmony with the general trend of decision and strongly supports the conclusion we have reached. The case there actually went off on the proposition that the plaintiff’s deed was to be construed, not according to the courses and distances mentioned in it, but rather by its metes and bounds, and that thus construed it actually embraced the portion of ground which was the subject-matter of that contest. It has, however, been subsequently cited by the Supreme Court in support of the proposition embraced in the first clause of the opinion, to wit: “Under special circumstances the word appurtenances has been allowed to'include land.” If then we construe the deed from Easby to Canning, the defendant, according to “the presumed intention of the parties as it is gathered from the conveyance, interpreted in the light of the circumstances surrounding them when it was executed, and with reference to which, as existing facts, they are supposed to have contracted,” it is not easy to escape the conclusion that there was an implied reservation of an easement for the continued use of section D of the outbuilding in favor of the occupants of the Factory street lot. Some earlier common owner of the entire property had so arranged and subdivided it that it would accommodate a number of tenants. In doing this the requirements of health and decency alike demanded that some provision, similar in effect at least to that actually adopted, be made for the necessary convenience of the tenants. The plan selected was well adapted to accomplish the purpose in view; the subdivision of the property was actual and visible; the manner in which each lot was supplied with the necessary convenience referred to was apparent tó the eye of the purchaser; and the entire arrangement was of a permanent character. The intention of the parties must have been directed to these existing facts, and in the light of them they dealt. The long acquiescence of the defendant, although it furnishes no foundation for an easement by prescription, is significant of the interpretation put upon his conveyance by the'parties to it. It seems to us, therefore, after careful consideration that every element is present to invite and require the application of the principle we have referred to.

The learned counsel for the appellee ably and earnestly argues that this principle cannot be applied to the facts of the present case for the reason that what the plaintiff claims is not an easement to use a portion of the defendant’s land in common with him, but to maintain such an exclusive and adverse possession as would in tinie ripen into a title to the soil itself. This theory, however, does not seem to rest upon any substantial foundation of fact. It was not necessary to the proper and reasonable enjoyment of the easement, claimed by the plaintiff, that her possession of that portion of the building should be at all times exclusive and adverse to the real owner of the soil. Had she thus attempted to surcharge her easement and develop it into a title to the land itself, a remedy at law or in equity would have been available to the owner to prevent the clandestine acquisition of his title. We are impelled to the conclusion, therefore, that the plaintiff has suffered an injury which, although it may not be great, measured financially, is sufficiently substantial to enable her to maintain this action.

As the record stands now there has never been any liquidation of her damages, if indeed the record discloses any evidence upon which she could recover more than nominal damages. As the case was tried, the learned court below directed a verdict for the defendant. Upon consideration later of a motion for judgment non obstante veredicto he directed a general judgment in favor of the plaintiff. Upon an appeal to this court, Casey v. Canning, 39 Pa. Superior Ct. 94, it was held that such judgment was improvidently entered and had no basis upon which it could rest. The record was therefore remitted with direction to enter judgment for the defendant, on the verdict and without prejudice to the right of the plaintiff to appeal from such judgment. Her appeal is now before us. In reversing the judgment, we are compelled to award a new venire so that the case may be tried out to its legitimate end.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Wright v. Adams Express Company, Appellant.

      Carriers — Common carriers — limitation, of amount of liability — Interstate commerce — Act of congress of June 29, 1906, 34 Statutes at Large, 584■

    1. The Pennsylvania rule that a common carrier cannot contract for exemption from, or limitation of liability arising from his negligence or that of his servant, is applicable to commerce between Pennsylvania and other states, and the contrary rule permitting a limita-tion of liability applied by the federal courts is not binding upon the courts of this state in the absence of congressional action upon the subject.
    2. The act of congress of June 29, 1906, 34 Statutes at Large, 584, requiring carriers to reduce the contract for transportation to writing, and enacting certain other rules for the regulation of interstate commerce, is not such congressional legislation as will require the courts of Pennsylvania to follow the rule laid down by the federal courts that a carrier may limit his liability to an agreed valuation in consideration of a lower rate for carriage.

      Carriers — Common carriers — Valuation of goods — Fraud—Bills of lading.

    3. Where an owner of goods delivers them to a carrier through an agent, and the agent in response to an inquiry states that he does not know the value of the goods, and the bill of lading is stamped “value asked and not given;” and it appears that neither the shipper nor his agent knew the minimum rate and the carrier has no knowledge of the value of the goods, the shipper cannot be charged with fraud for paying a minimum rate on goods of a greater value than that on which the minimum rate is charged.
    Argued Oct. 21, 1909.
    Appeal, No. 192, Oct. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1908, No. 2,392, for plaintiff on case stated in suit of Daisy Wright v. Adams Express Company. ’
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beayer and Porter, JJ.
    Affirmed.
    Case stated to determine liability for loss of furs.
    The case stated was as follows:
    It is hereby agreed by and between the parties in the above-entitled action that the following case be stated for the opinion and decision of the court in the nature of a special verdict.
    On November 18, 1907, plaintiff, a resident of Philadelphia, was the owner of a long fur coat and a muff made of brown “ Japanese sable,” which she had bought from O’Hara, an importer, of New York City, for 1350. Desiring to send the coat and muff to O’Hara for repairs, she packed them in a box, wrote on it the destination— “O’Hara, 11 East 48th Street, New York City” — and gave it to James Nelson, her chauffeur, giving him no instructions except that he was to send it to the addressee by express. Nelson did not know the value of the contents of the box.
    Nelson took the box and its contents to the office of the defendant at 1413 Chestnut street, Philadelphia, and there delivered it to one Stivers, defendant’s receiving clerk. Stivers, who was ignorant of the value of the shipment, asked Nelson its value, and Nelson said he did not know the value. Thereupon Stivers stamped “Value asked and not given” in red ink on a bill of lading, filled in the other blanks, signed it and gave it to Nelson, who paid forty cents, the express charges demanded. A copy of the bill of lading marked exhibit “A” is attached hereto and made a part hereof. Nelson subsequently gave said receipt to the plaintiff. She did not know at the time the amount charged by the defendant in this case.
    Defendant has never delivered the box to O’Hara or returned it to plaintiff.
    Plaintiff made proper claim and demand upon defendant for the loss of the furs.

      On November 18, 1907, and before and after that date the regular rate established and in force on defendant’s line of transportation for carrying furs of the weight of those shipped from Philadelphia to New York was forty cents if their value was $50.00 or under, and sixty cents if their value was $350.
    •These rates were included in the schedules filed by defendant with the Interstate Commerce Commission at Washington and printed and posted at the office of the defendant at 1413 Chestnut street, Philadelphia, in accordance with the provisions of the United States statute entitled, an act to regulate commerce, approved February 4, 1887, and its amendments and supplements. But neither the plaintiff nor Nelson had actual knowledge that the defendant had a' published schedule of rates, or what the defendant’s actual rates were,' but she did know that the express charges were based on the value and that more was charged if the shipment was valued. Plaintiff and Nelson had often shipped packages by defendant company, but neither of them knew the provisions of the bill of lading.
    On November 18, 1907, and before and after that date a shipment valued at over $50.00 was handled differently by defendant from one not so valued, in the following respects, to wit: the value was written on the face of such shipment and on the waybill which accompanied it; such a shipment was handled both at the initial office and at the delivering office in a special department called the “valuable room”; from its receipt by defendant until its delivery to consignee, it was at all times under the personal custody of a particular employee; each employee who handled such a shipment gave a receipt to the person from whom he received it and took a receipt from the person to whom he gave it; none of which things was done in the case of a shipment not so valued. This method of handling was adopted solely for additional security and for the purpose of giving to a shipment of particular value the care which its value warranted.

      July 20, 1910:
    If the court be of opinion that plaintiff is entitled to recover from defendant the full value of the said furs, then judgment shall be entered in her favor for $350 with interest ■ from November 18, 1907, and costs. If the court be of opinion that the recovery should be limited to $50.00, then judgment shall be entered for plaintiff for that amount without costs. If the court be of opinion that the judgment should be for defendant, a judgment for defendant shall be entered and costs assessed.
    The judgment of the court shall be-subject to review by either party hereto by appeal or by writ of error.
    The court entered judgment for plaintiff for $350 on the case stated.

      Error'assigned was in entering judgment for plaintiff.

      John Lewis Evans, with him Thomas DeWitt Cuyler, for appellant.

      G. W. Pepper, with him W. B. Bodine, Jr., for appellee.
   Opinion by

Henderson, J.,

This appeal involves a consideration of the effect of the interstate commerce legislation on the liability of a common carrier for damages for negligence on a contract for the carriage of goods from Pennsylvania to the state of New York. The plaintiff sued to recover the value of a consignment of furs delivered to the defendant in Philadelphia for carriage to New York City. The bill of lading contained the following provision: “1. In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.” The package was not delivered to the consignee nor accounted for and the court entered judgment on the case stated in favor of the plaintiff for $350, the value of the goods, notwithstanding the limitation of liability in the contract. One of the facts agreed upon was that on November 18, 1907, and before and after that date the regular rate established and in force on defendant’s line of transportation for carrying furs of the weight of those shipped from Philadelphia to New York was forty cents if their value was $50.00 or under and sixty cents if their value was $350. It was also agreed that when the plaintiff’s servant delivered the package of furs to the defendant, the agent of the latter inquired what the value of the package was and the servant not knowing the value stated that he did not know; whereupon the agent stamped on the bill of lading delivered to the plaintiff’s servant, “Value asked and not given.” The appellant contends (1) that the liability of a carrier for loss of goods shipped in interstate commerce under a contract containing ah agreement as to the value of the goods should be determined by the law as announced in the decisions of the supreme court of the United States and not according to the rule adopted by the Supreme Court of this state, because of the provision of the interstate commerce legislation requiring a carrier, to issue a receipt or bill of lading to the shipper and making such carrier liable to the holder of the receipt for loss or damage. It is conceded that it is the well established law of this state that a common carrier cannot contract for exemption from, or limitation of, liability arising from his negligence or that of his servant. This doctrine has its foundation in considerations of public policy which hold that contracts permitting a common carrier to relieve himself from the obligation to take care of the property committed to his custody tend to encourage guilty negligence: Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. 67; Cole v. Goodwin, 19 Wend. 251; R. R. Co. v. Lockwood, 84 U. S. 357. The nature of the carrier’s undertaking imposes on him the obligation to exercise a high degree of care and a contract which has the effect to protect him when he has committed a breach of duty and which disregards a well-defined rule of public policy cannot be enforced. There are many cases in this state which apply this doctrine as will be seen by an examination of Powell v. R. R. Co., 32 Pa. 414; American Express Co. v. Sands, 55 Pa. 140; Penna. R. R. Co. v. Raiordon, 119 Pa. 577; Buck v. Penna. R. R. Co., 150 Pa. 170; Willock v. R. R. Co., 166 Pa. 184; Eckert v. Penna. R. R. Co., 211 Pa. 267. And with reference to this rule no distinction has been made between transactions involving interstate carriage and those in which the transportation was wholly within the state. Grogan v. Adams Express Co., 114 Pa. 523; Willock v. R. R. Co., 166 Pa. 184; Hughes v. Penna. R. R., 202 Pa. 222, and Eckert v. Penna. R. R. Co., 211 Pa. 267, were all cases in which shipments were made from one state to another. The decisions of the federal courts have applied a different rule. They sustain the doctrine of the common law that a carrier may not contract for exemption from liability for his own negligence but hold valid an agreement with the shipper limiting his liability to the agreed valuation in consideration of a lower rate for carriage, the shipper at the same time to have the privilege to insist upon the carrier’s liability for the full value of the property on payment of the price of transportation charged according to such value: Hart v. R. R. Co., 112 U. S. 331; such limitation of liability being regarded as a lawful means of protection to the carrier against excessive valuation and a proper method of securing a due proportion between the amount for which the carrier is responsible and the freight paid. And it is this rule which the appellant asks to have applied here. It is conceded that the law on the subject as announced by the supreme court of the United States is not binding on the courts of this state unless congress has legislated on the subject in the act of June 29, 1906, 34 Statutes at Large, 584. Prior to that enactment it had been decided by the supreme court of the United States that a statute of a state or rule of law established by the courts of a state declaring void any contract of a common carrier exempting him from, or limiting his liability for, negligence was not in conflict with the legislation of congress on the subject of interstate commerce: Penna. R. R. Co v. Hughes, 191 U. S. 477. Such a statute or rule of law has for its object the protection of people of the state in the enjoyment of their rights of property and to secure for them adequate redress for wrongs done within the state and this is clearly within the authority of the state. Common carriers like other persons doing business within the territorial jurisdiction of the state are subject to its law. And in each of the states there are to be found statutes and judicial decisions defining the rights and duties of such carriers and declaring the means by which persons injured by their failure to perform their obligation may be compensated in damages. It was accordingly held in Chicago, etc., Ry. Co. v. Solan, 169 U. S. 133, that a carrier exercising his calling within a particular state although engaged in the business of interstate commerce is answerable according to the laws of the state for acts of nonfeasance or misfeasance committed within its limits and that on failure to deliver goods at the time and place the right of action is given by the local law. That was a case in which a limited liability contract was set up by the railroad company in an action for personal injury received by the plaintiff while engaged in transporting cattle on the defendant’s railroad; a statute of the state of Iowa declaring that no contract, receipt, rule or regulation shall exempt any corporation engaged in transporting persons or property by railway from the liability of a common carrier or carrier of passengers which would exist had no contract, receipt, rule or regulation been made or entered into. To the same effect are Smith v. Alabama, 124 U. S. 465; New York, etc., R. R. Co. v. New York, 165 U. S. 628; Railroad Co. v. Husen, 95 U. S. 465; Hughes v. Penna. R. R. Co., 202 Pa. 222. The conclusion of these cases was reached in accordance with the doctrine that the regulation of the rights and duties of all persons under the jurisdiction of the state belongs in the first instance to the state because of its reserved power to provide for the safety of the persons and property within its territory and that this right is not taken away from it because of the exclusive right of congress to regulate interstate commerce except in cases where the attempted exercise of authority in a state is in conflict with an act of congress or is an attempt to regulate interstate commerce. In Martin v. R. R. Co., 203 U. S. 284, Mr. Justice White after reviewing some of the federal cases bearing on the subject said, “The result of the previous rulings was to recognize in the absence of action by congress the power of the states to legislate- and of course this power involved the authority to regulate as the state might deem best for the public good without reference to whether the effect of the legislation might be to limit or broaden the responsibility of the carrier.” These are not in themselves regulations of interstate commerce although they control in some degree the conduct and liability of those engaged in such commerce. It is plainly decided in the case of Hughes v. R. R. Co., 202 Pa. 222, -that the interstate commerce legislation up to that time did not control the statutes or decisions of the courts of the states as to the validity of contracts limiting liability for negligence. But the appellant argues that the act of congress of 1906 has that effect inasmuch as it provides “that any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill-of-lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: provided that nothing in this section shall deprive any holder of such receipt or bill-of-lading of any remedy or right of action which he has under existing law.” The apparent purpose of this amendment was to require the carrier to reduce the contract for transportation to writing and to give the holder thereof prima facie title to the property; to render the first carrier liable to the-lawful holder of the receipt or bill of lading for any loss caused by such carrier or by any connecting carrier over whose line or lines such property may pass and to forbid exemption of such carrier by contract from the liability imposed by the act. We are unable to discover in the language of this amendment any evidence of an intention to change the rule of law theretofore existing with reference to the measure of damages to which a carrier might be subjected in an action for negligence. The provision for a receipt or bill of lading was evidently to enable the shipper to have the best evidence of the terms of his contract and to avoid controversy as to the title to the property shipped. No form of receipt is prescribed nor is any other liability created than that which makes the first carrier responsible for loss occurring anywhere on the line of shipment. This is a provision in aid of the shipper, intended to meet the difficulty often experienced of determining on what part of a route over connecting lines a loss occurred and rendering invalid a contract with the first carrier in which liability for loss is limited to a loss occurring on the line of that carrier. But this has nothing to do with the measure of damages which is the important subject in this appeal. It was said in Penna. R. R. v. Hughes, 191 U. S. 477, that the interstate commerce laws contained no sanction of agreements limiting liability to stipulated valuations and that until congress shall legislate upon it there is not any valid objection to a state enforcing its own regulations upon the subject although it may to this extent indirectly affect interstate commerce contracts of carriage; and in Chicago, etc., Ry. Co. v. Solan, 169 U. S. 133, the court referring to rules prescribed for the construction and management of railroads and designed to protect persons and property said, “They are not in themselves regulations of interstate commerce although they control in some degree the conduct and the liability of those engaged in such commerce. So long as congress has not legislated upon the particular subject they are rather to be regarded as legislation in aid of such commerce and as a rightful exercise of the police power of the state to regulate the.relative rights and duties of all persons and corporations within its limits.” To the same effect is McLean v. Denver, etc., R. R. Co., 203 U. S. 38. It cannot be successfully contended that a statute or rule of law of a state declaring what shall be the measure of damages for the breach of a contract of a common carrier to deliver goods to a destination in another state is in any proper sense a regulation of interstate commerce or violative of the constitution of the United States or any law of congress. It may be conceded that congress might legislate upon the particular subject and give validity to contracts limiting the carrier’s liability, but until such action has been taken the statutes or rules of law of the respective states are in force and we are not persuaded by the careful and exhaustive argument of the counsel for the appellant that the amendment of 1906 was intended to at all affect the subject of the right of a common carrier engaged in interstate commerce to contract for exemption from liability for his own negligence or to limit his liability with reference thereto. In every undertaking of a carrier there is a contract either expressed or implied and at the time of the enactment of the amendment referred to the custom was perhaps general on the part of carriers to give receipts or bills of lading for the goods accepted for transportation. If congress had intended to prescribe the terms or declare the effect of such a document except as specifically set forth in the statute it is reasonable to suppose that such intention would have been plainly expressed. If the act have that' effect the intention can only be ascertained by processes of interpretation and reasoning which are not convincing. As the subject is a plain one and adequate language was at command it seems evident that no such decisive change of the law as is contended for by the appellant could have been contemplated. The intention was not to abridge the rights of shippers but to correct defects in the preceding legislation by reason of which they were placed at a disadvantage. This appears not only from the body of the enactment but.also from the proviso continuing to shippers any remedy or right of action had under existing law. The appellant insists that the words “remedy or right of action” in the proviso have reference to the method of procedure and do not relate to the cause of action, but the enactment bears on the rights of shippers and not on the legal processes by which their rights might be enforced and was apparently intended to hold fast the law as’ it existed with the addition of the enlarged rights given to shippers and the increased liability imposed on the carrier. It is in this sense we think that the term “right of action” is used by Mr. Justice Gray in Ry. Co. v. Solan, 169 U. S. 133, and by Mr. Justice White in Martin v. R. R. Co., 203 U. S. 284. The language of the proviso admits the interpretation that the holder of a shipping receipt is permitted to exert his cause of action for a negligent wrong in transportation by a common carrier in the method and with the result allowed according to the law existing at the time the amendment was enacted. Our attention is directed by the appellant to the case of Tullock v. Mulvane, 184 U. S. 497, as a controlling authority. That was an action on an injunction bond filed in the circuit court of the United States for the district of Kansas in a proceeding in equity. Such proceedings in courts of equity of the United States are regulated by rules adopted and promulgated by the Supreme Court under the power given it by congress and it is under one of these rules that the courts of the United States proceed in requiring indemnity bonds and granting injunctions. The decision was based on the reasoning that the bond was given with reference to the rules of law applicable to such bonds in the United States courts; that the contract was with reference to a definite rule of liability and that there could be no certain general rule by which to determine such liability except as administered in the federal court; that the court has the inherent right to set the bond aside and to determine in its discretion whether recovery could be had upon it. If the obligor’s liability could be measured in other courts according to a different standard from ■ that which controlled in the cóurt which had directed the bond to be given, it might occur that although the latter court had decreed that the injunction was rightfully issued, nevertheless in an action on the bond a state court' might hold otherwise and thus subject the obligor to liability without redress. The liability of the obligors was-determinable according to the measure of liability existing in the court where the bond was given, and the parties • must be presumed to have contracted according to the law there prevailing. It followed as a consequence that the law of the state of Kansas which permitted the recovery of counsel fees under such a bond could not prevail against the decisions of the federal courts that such a charge was not costs within the meaning of the obligation. There the rule of court and the order of the chancellor determined the character of the bond and the extent of its obligation. The amendment of 1906 to the interstate commerce legislation has no such effect. It neither prescribes the form of a bill of lading nor fixes the measure of liability thereunder.

The second position for which the appellant contends is that the shipper obtained transportation at less than the regular rate by undervaluing the goods and that the contract is therefore illegal and that at most recovery could not be had for more than the value on which the freight charge was paid. If a case were presented of one who had fraudulently obtained an undervaluation of goods in order to secure a lower transportation charge the question would be one worthy of serious consideration, but the facts agreed upon do not furnish a foundation-for the argument presented. The shipper did not know that the appellant had an advertised schedule of rates nor what the appellant charged in this case at the time the goods were received nor what the provisions of the shipping bill were. Her agent transacted the business in her absence. She did know that express charges were based on the value of the goods, but it does not appear that she knew what the minimum value to be carried at the fixed charge was. Nor do the facts stipulated show any fraudulent conduct or intention to deceive on the part of the plaintiff’s servant. He had no knowledge of the published schedule of rates nor what the rates were, nor did he know the conditions set forth in the bill of lading. He told the truth when he informed the defendant’s agent that he did not know the value of the furs. When he gave that statement no further inquiry was made on the subject and the goods were promptly receipted for without knowledge on the part of the company of their value. The facts leave no room, therefore, for argument on the theory of a deception practiced by the plaintiff. There was no thought in the mind of the plaintiff or of the defendant of accepting or granting a concession or preference in the matter of rates. It would work a great hardship on many innocent shippers to hold that where one in good faith delivered his goods to a carrier for interstate transportation and paid the rate demanded without knowledge of the schedule of rates or what the rate actually was he rendered himself powerless to insist in a. legal tribunal that he have his goods or their value. If the plaintiff had seen the shipping receipt when the goods were received by the defendant she could not have learned therefrom that she was getting a lower, rate than was given to others under like circumstances. Preferences were forbidden by the interstate commerce legislation in force at the time the amendment of 1896 was adopted, but this did not prevent a recovery in Penna. R. R. v. Hughes, 191 U. S. 477. Our conclusion is that the courts of this state have not been deprived by the interstate commerce legislation of the power to enforce the doctrine established in this state that the contract of a common carrier limiting his liability for negligence is contrary to public policy and therefore void.

The judgment is affirmed.


text:
    Davidson v. Adams Express Company, Appellant.

      Carriers — Common carriers — Limitation of liability — Interstate commerce.

    1. The act of congress of June 29, 1906, 34 Statutes at Large, 584, does not prevent the Pennsylvania courts from continuing to apply the rule that a common carrier cannot contract for exemption from his own negligence, or that of his servants, nor for a limited liability in case of loss from such negligence.

      Contract — Sale—Title.
    2. An absolute sale of goods cannot be shown by evidence to the effect that the owner sent the goods to another person to be sold at a price named, the latter to get his commissions from the buyer of the goods, and in the event that they could not be sold they would be returned to the owner.
    Argued Oct. 21, 1909.
    Appeal, No. 87, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,701, on verdict for plaintiff in case of Abe Davidson, trading as Davidson & Son, v. Adams Express Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for loss of goods. Before Brégy, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was, inter alia, in dismissing defendant’s motion for judgment non obstante veredicto.

      July 20, 1910:

      John Lewis Evans, with him Thomas DeWitt Cuyler, for appellant.

      Alfred Aarons, with him Henry N. Wessel, for appellee.
   Opinion by

Henderson, J.,

Two questions are raised on this appeal: (1) Had the plaintiff a title to the goods shipped which will support the action? (2) is the limitation of liability in the bill of lading available to the defendant where the loss occurred through the negligence of the latter the goods having been received in Philadelphia to be transported to the city of New York? The court submitted to the jury the question whether the transaction between the plaintiff and the pérson to whom the goods were consigned constituted a sale to the consignee or whether they were sent to be sold on account of the plaintiff and if not sold to be returned to him. The evidence justified this instruction. The testimony of John Davidson, a witness for the plaintiff; shows with sufficient clearness that the furs were sent to Mr. Aronin in New York to be sold at a price named, the consignee to get his commission from the buyer of the goods and in the event that they could not be sold that they were to be returned to the plaintiff. The deposition of Jacob Scher while not very explicit on the subject supports to some degree the evidence of Davidson and there is no contradiction on the point. To have instructed the jury that the evidence showed an absolute sale of the furs would have been erroneous.

The second branch of the case relates to the effect of the amendment of the interstate commerce legislation by the act of congress of June 29, 1906, 34 Statutes at Large, 584, on the law in force in Pennsylvania that a common carrier cannot contract for exemption from his own negligence or that of his servants nor for a limited liability in case of loss from such negligence. The same question was brought up on the appeal of Wright v. Adams Express Co., ante, p. 40, in which an opinion was handed down to-day. The argument in that case covered the same field of inquiry and followed the same lines of discussion employed in this case. Our conclusion was adverse to the positions taken by the appellant, and, for the reasons given in the opinion referred to, the first, second and third assignments are overruled. The other assignments relate to the plaintiff’s title and right to sue and have already been disposed of.

The judgment is affirmed.


text:
    Cutler v. Morrison, Appellant.

      Negligence — Roofing—Fall of bucket of pitch — Evidence.
    1. In an action to recover damages for personal injuries to a child caused by the fall of a bucket of hot pitch from a roof which was being repaired, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained, where it appears that there were two usual methods employed for preventing buckets of pitch from falling in a roofing operation, and that neither method had been used to secure the bucket in question and prevent its fall upon the child.
    2. In such a case if the fall of the bucket was caused by the fall of the workman who lost his balance while carrying the bucket, the employer of the workman will be responsible if it appears that the accident happened from his negligence in failing to provide a reasonably secure way for his workman to travel.
    Argued Oct. 21, 1909.
    Appeal, No. 159, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 4,181, on verdict for plaintiff in case of Charles Cutler, by his father and next friend, Frank Cutler, and Frank Cutler in his own right v. Andrew G. Morrison.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kinsey, J,,

      July 20, 1910:
    The circumstances of the accident are stated in the opinion of the Superior Court.
    The defendant presented these points:
    1. The jury must find a verdict for defendant. Answer: Refused. [1]
    2. If the jury find the plaintiff's injury was suffered by the falling of the contents of the pitch bucket by the accidental fall of the workman who lost his balance while carrying the pitch, they must find for defendant. Answer: Refused. [2]
    Verdict and judgment for Charles Cutler for $300, and for Frank Cutler $100. Defendant appealed.

      Errors assigned were above instructions, quoting them.

      E. Spencer Miller, for appellant.
    The proof failed to show negligence: Spees v. Boggs, 198 Pa. 112; Zahniser v. Torpedo Co., 190 Pa. 350; Stearns v. Spinning Co., 184 Pa. 519; Higgins v. Fanning & Co., 195 Pa. 599; Diver v. Mfg. Co., 205 Pa. 170; Guille v. Campbell, 200 Pa. 119; Phila. & Reading R. R. Co. v. Adams, 89 Pa. 31; Marsh v. Giles, 211 Pa. 17; White v. Roydhouse, 211 Pa. 13; Heister v. Fawn Twp., 189 Pa. 253; Ohl v. Bethlehem Twp., 199 Pa. 588; Ford v. Anderson, 139 Pa. 261; Kilbride v. Carbon Dioxide, etc., Co., 201 Pa. 552; Wall v. Lit, 195 Pa. 375.

      Maurice Rose, with him Enoch W. C. Greene, for appellee.
    The case was for the jury: Frankford, etc., Turnpike Co. v. Philadelphia, etc., R. R. Co., 54 Pa. 345; Crissey v. Hestonville, etc., Pass. Ry. Co., 75 Pa. 83; Pennsylvania R. R. Co. v. Ogier, 35 Pa. 60; North Pennsylvania R. R. Co. v. Kirk, 90 Pa. 15; Spear v. P., W. & B. R. R. Co., 119 Pa. 61; Cougle v. McKee, 151 Pa. 602; Holland v. Kindregan, 155 Pa. 156.
   Opinion by

Head, J.,

The defendant had undertaken to put a new coat of hot pitch on the roof of the dwelling house known as No. 939 South Sixth street in the city of Philadelphia. The roof was steep, its ridge running parallel with the street. Each of the slopes, the one fronting the street and the other the rear, was pierced by a dormer window. At the time of the occurrence to be related the workmen had completed the slope of the roof facing the street and were engaged in applying the pitch to the slope facing the rear. The pitch was heated in a tank or caldron on the side of Sixth street opposite to the house. A workman would fill a bucket with this boiling fluid and carry it across the street to the foot of the house wall. Another workman was on the roof above. It appears to have been his duty to lower a rope with a hook on the end of it and, when the bucket was attached, to hoist it by hand to the edge of the roof on which he stood. Having detached the rope, he then carried the bucket along this roof edge to the dormer window, and passing through it and the attic of the house, delivered the bucket of pitch at . the other side of the building where it was being applied. In doing the work according to this plan, there was no protection arranged either for the bucket or the workman. About the middle of the day two children, one of whom is the plaintiff, were sitting or playing about the doorstep of the house two doors above the one mentioned and on the same side of the street. Suddenly, both the bucket of pitch and the workman who had hoisted it to the roof fell to the pavement, the hot contents of the bucket were distributed in every direction and a considerable quantity of it Unfortunately struck the plaintiff who was badly burned. It being alleged that the injury was caused by the carelessness of the defendant’s employees, this action was brought to recover damages.

The testimony is not entirely clear as to just how the accident occurred. That offered by the defendant would tend to show that the workman, while walking along the edge of the roof with the bucket of pitch in his hand, lost his footing and fell to the street, carrying the bucket with him. But the evidence produced for the plaintiff, if believed, would tend to show that the bucket was hoisted to the roof and was resting there at the point where the slope of the roof joined the gutter. Either because of its insecurity, or because it was disturbed by the foot of the workman, the bucket fell. Whether he had lost his footing before he touched the bucket, or whether it was because of his anxiety to secure it before it fell over, that he himself fell is a matter not free from doubt.

The able counsel for the appellant first undertakes to convict the learned trial court of error because he refused to direct a verdict .in favor of the defendant on the ground that no negligent act or omission, on the part of the defendant, had been shown. The principle upon which he relies, and to establish which he cites many cases, may be summed up in the following language from the opinion of the Supreme Court in Titus v. Bradford, etc., Railway Co., 136 Pa. 618: “Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery, and appliances is' the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. Conceding the correctness of. this principle, how does the application of it to the facts testified to in this case leave the defendant? Two witnesses were called by the- plaintiff, each of whom was a man of wide experience in that kind of work. Each of them described" two methods in general use by those undertaking such work. The purpose in view in using either one of them is thus declared by the witness Rose: “Q. What are the purposes of those two methods you have described? A. To protect passers-by and protect the men working on the roof. It is impossible with those protections for a bucket of pitch to turn over. In the first place you have the weight of the bucket that keeps it on the level surface, then you have that backboard it leans up against.” The other witness, describing the purpose of adopting either one of the methods referred to, said, “ It takes a good bit to kick it [the bucket] over if it stands on a level, but if it stands on a slant it will go over as soon as, you touch it.”

The two methods thus testified to be in general use may be briefly described as follows: The first consisted in the use of a ladder called a chicken ladder.” This ladder rested against an upright board or plank nailed to the edge of the roof and stretched up along its slope to or towards the ridge. It was equipped with a substantial board or plank of sufficient width to hold the bucket, and so arranged that the bucket would always stand on a level, no difference how great the slope of the roof. This rest could be moved from portion to portion of the ladder so that the workman could have it at any height at which he desired to use it. The other method consisted in securing a perpendicular strip of lumber of sufficient height along the edge of the roof. A board or plank would be laid from this to the slope of the roof in such manner as to furnish a level and even footway for the workman and a secure resting place for his bucket of pitch, and it appears to have been so constructed that the perpendicular piece always projected a distance aboye the footway, thus forming as it were a.guard rail for the protection of the bucket.

As. already stated, neither of these plans was in use at the time and place of the accident. It is true the workmen were equipped with a chicken ladder. They had used it while spreading the pitch on the slope of the roof next the street and were using it on the rear slope at the time of the accident, but the workman who was hauling up the hot pitch, and had to'transport it along the sloping roof and immediately above the-traveled highway, was provided with nothing to guard against the likelihood of such an accident as actually happened. Under this state of facts, it seems clear enough to us that the plaintiff had shown a case outside of that class relied on by the learned counsel for the appellant, of which Titus v. Railway Co., 136 Pa. 618, is an illustration. Had the second method above described been used, the workman on the roof would have had not only a secure place to rest his bucket while he detached and disposed of the hoisting rope, but a level and comparatively safe place on which to walk to the dormer window. Had he been provided with a chicken ladder, the bucket would not have been easily overturned by any unintentional movement on his part while preparing to carry it. No explanation at all is offered why the bucket was not hoisted at the dormer window and the perilous journey along’the roof edge thus entirely avoided. In any event, accepting the testimony for the plaintiff as true, the jury could have found that by the adoption of precautions in general use in that business, the accident in all probability would not have occurred. The first assignment of error must therefore be dismissed.

The second assignment of error complains of the refusal of the learned trial judge to affirm the defendant’s second point, which was as follows: “If the jury find that the plaintiff’s injury was suffered by the falling of the contents of the pitch bucket, by the accidental fall of the workman who lost his balance while carrying the pitch, they must find for the defendant.” We do not think the proposition advanced by the point is necessarily or universally true. If the fall of the workman was purely accidental, within the legal meaning of that word, that is to say, without negligence upon his own part or that of his employer, then the conclusion might be correct. But if the fall were accidental only in the sense that it was not intentional, but if at the same time it resulted from the manifest negligence of the employer in failing to provide a reasonably secure way for his workmen to travel, then we do not think the court could have properly so instructed the jury. Taking the refusal of the point in connection with the instructions exhibited in the charge as a whole, we are not able to discover any reversible error on the part of the learned trial court. This assignment therefore must also be overruled.

The third assignment is but a formal complaint of the act of the court in entering judgment on the verdict. If we are correct in holding that the plaintiff exhibited a case that the court was bound to submit to the jury, and if the instructions uhder which it was submitted were free from error, it would follow this assignment could not be sustained.

Judgment affirmed.


text:
    Brown v. Sunbury & Selinsgrove Electric Street Railway Company, Appellant.

      Practice, C. P. — Trial—Charge—Misstatement of evidence — Duty of counsel — Review—Appeals.
    1. Where a trial judge in the course of his charge makes a mistake in stating the evidence, it is the duty of counsel to call his attention to the mistake and give him an opportunity to correct it; but if counsel overlook the slip, or if noticing it, choose to remain silent, they cannot on appeal ask that the judgment be reversed because of the mistake.

      Practice, C. P. — Trial—Misconduct of counsel — Improper statements to jury — Withdrawal of juror.

    2. On the trial of an accident case against a street railway company the court should withdraw a juror and continue the case if requested to do so, where counsel for the plaintiff reflects on the employees of the defendant called as witnesses, as to their credibility on account of their employment, and further says, “I don’t care if they call the whole line of the employees of the defendant, and of course if they had, they would have all sworn to the same thing.”
    Argued Oct. 29, 1909.
    Appeal, No. 194, Oct. T., 1909, by defendant, from judgment of C. P. Northumberland Co., Feb. T., 1909, No. 200, on verdict for plaintiff in case of William J. Brown and Ellen Brown, his wife, v. Sunbury & Selinsgrove Electric Street Railway Company.
    Before Rice, P. J., Henderson, Morrison, Orladt,Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Auten, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for Ellen Brown for $375, and for William J. Brown for $50.00. Defendant appealed.

      Errors assigned were for refusing to withdraw a juror, for misstating the evidence of Moyer, and in not making a fair and adequate charge.

      July 20, 1910:

      G. M. Clement, with him M. H. Taggart and C. F. Clement, for appellant.

      J. Fred Schaffer, for appellees.
   Opinion by

Head, J.,

That the plaintiff, on the- evening of her injury, was a passenger on the car of the defendant company is not denied. Nor that, at her destination point, the car stopped long enough to permit a number of other passengers to alight in safety. She alleges, however, that as she was in the act of alighting the car started with such suddenness and force as to throw her to the ground, and as a result of her fall she suffered á fracture of both of the bones of her right leg.

As to the crucial question, viz.: that her fall was caused by the movement of the car before she had safely reached the street, her case rests solely and entirely on her own testimony. The substance of the evidence of one Moyer, the only witness she called, was that when he first saw her she, was in the act of falling, that she did not have hold of the car and that her feet were on the ground. The car was then moving slowly. At another place, to the question, “Was she all .at the ground when you saw her? ” he answered, Not quite, no.” As to the impetus which caused her to lose control of her limbs and begin the act of falling the witness could give no light. But little more can fairly be predicated of this testimony than that it was not inconsistent with the plaintiff’s assertion that the car started before she had safely alighted.

In the second assignment the appellant complains of the manner in which the learned trial court, in the general charge, referred to this testimony, viz.: “A young man by the name of Moyer testifies that he saw her in the act of falling, as I recollect his testimony, and he says he could not say whether or not at the time he saw her she was free from the car; in other words, whether her hand and foot were both detached from the car. . . . And Mr. Moyer, her witness, testifies he saw her falling but could not say whether or not she still had hold of the car.” In point of fact the witness had- clearly stated that she had not hold of the car. when, he saw her. “Q. Did she have hold of the car when you saw her? A. No, sir, not when I seen it.”

Of course, the learned trial judge was not bound to refer in detail to the testimony of this witness, but having chosen to do so, it was of the utmost importance to the defendant that the reference should be accurate, especially in view of the unusual strength of the contradiction of the plaintiff’s story by all of the other witnesses in the case. But it is clear that the mistake was a wholly inadvertent one. The duty of counsel to aid the trial judge in such matters and give him an opportunity to correct such mistakes is manifest. If counsel themselves overlooked the slip at the time, or if, noticing it they chose to remain silent,- they cannot in- fairness now ask an appellate court to reverse because of it.

The second and third assignments may be considered together. As already stated the whole story of the-plaintiff was strongly contradicted by a number of witnesses. They testified that she had boarded the car in company with a man, not her husband, who paid her fare, sat in the seat and conversed with her and tried to persuade her to continue her journey. Several of them declared there was evidence to ear, eye and nostril alike that she had been indulging in the use of intoxicating liquor and that she had safely and completely alighted from the car before it started. In all of these respects the testimony offered by the plaintiff was wholly irreconcilable with that of the other witnesses. None of this testimony was apparently shaken on cross-examination, and no direct or permissible attack was made on the character or reputation of any of these witnesses. It is true some of them were employees of the defendant, not then, however, in charge of the car but riding as passengers.

With the evidence in this state the plaintiff’s counsel was addressing the jury when the following occurred: “Mr. Shaffer, ‘You know and I know that employees of corporations are brought in and catechised with reference to an accident almost immediately after it happened.’ Colonel Clement (for defendant), ‘Counsel for the defendant moves the court to withdraw a juror and continue the case.’ Mr. Shaffer, ‘The evidence is that this superintendent, according to his own testimony, immediately sends out his couriers and sends out this man Conrad and somebody else to interrogate this plaintiff and get an admission from her about this accident, and you can take that down too. Gentlemen of the jury, I say to you that the evidence of Conrad, Day, Lauer and Specht is the evidence of employees of this defendant, and I say to you, you have a right to consider the fact that they are employees as to whether or hot their testimony would likely be colored and made to fit into the defendant’s theory of the case. I don’t care if they call the whole line of the employees of the defendant, and of course if they had they would have all sworn to the same thing.’ Colonel Clement, ‘I renew my motion.’ By the court, ‘The motion to withdraw a juror is overruled, and an exception for the defendant.’ ”

Here was a wholesale attack upon an entire class of men of whom the evidence disclosed nothing worse than that they earned their livelihood by working for a public service corporation whose business it was to daily transport in safety perhaps thousands of individuals. It is not needful that we should, at this time, attempt to express anew the manner in which appellate courts view such an abuse of the great powers with which an advocate is invested under our system of jurisprudence. An examination of the recent cases of Holden v. Penna. R. R. Co., 169 Pa. 1; Saxton v. Pittsburg Rys. Co., 219 Pa. 492; Freeman v. Traction Co., 36 Pa. Superior Ct. 166, will show that there is nothing left to be said on the subject.

In this case there was no notice of the matter taken by the learned trial judge, not even a caution to the jury to disregard such statements. We have already indicated our view that this case is one of the class that peculiarly demands of the trial judge a careful and adequate presentation of the real issue; of the points of strength or weakness in the respective contentions of the parties and of those considerations from which alone the verdict should spring.

The second and third assignments are sustained. The remaining ones are overruled.

Judgment reversed and a venire facias de novo awarded.


author: Rice, P. J.,

text:
    Grove v. School District of Spring Township, Appellant.
    July 20, 1910:

      School law — High school — Contract for tuition — Quarter sessions— Jurisdiction — Acts of May 8,1854, P- P- 617, June 28,1895, P. L. 41S, April 8, 1908, P. L. 158, March 16, 1905, P. L. 40, and May 2, 1907, P. L. 158.

    There is nothing in the Acts of May 8, 1854, P. L. 617, June 6, 1893, P. L. 330, June 28,1895, P. L. 413, April 3, 1903, P. L. 153, March 16, 1905, P. L. 40, and May 2, 1907, P. L. 158, which confers jurisdiction upon the quarter sessions to compel school directors to enter into a contract with the directors of an adjoining school district for the tuition of pupils in a high school maintained by the latter district.
    Argued. Oct. 28, 1909.
    Appeal, No. 78, Oct. T., 1909, by defendant, from order of Q. S. Centre Co., Feb. Sessions, 1908, No. 5-8, making absolute rule on school directors to enter into a contract for the tuition of pupils of a neighboring high school in case of A. C. Grove et al. v. School District of Spring Township.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Rule to show cause why the school directors of Spring township should not make a contract with the school directors of Bellefonte borough for the tuition of pupils resident in Spring township in the high school of the borough. Before Orvis, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule to enter into a contract.

      Clement Dale, with him A. A. Dale, for appellant.

      J. C. Meyer, for appellees.
   Opinion by

Rice, P. J.,

Upon the petition of certain citizens and taxpayers of the township of Spring the court of quarter sessions granted a rule upon the school directors of the township “to show cause why they should not consent to- and enter into an arrangement with the school board of Bellefonte borough for the admission of petitioners’ children in the schools of the borough of Bellefonte, including the high schools of said borough, at the expense of the district of Spring township school district, and why said directors of Spring township school district should not promptly make settlement with Bellefonte school district for tuition, cost of books, etc., accrued and now due and payable.” An answer was filed by the respondents in which they admitted that they had declined to pay for the schooling of certain children at the Bellefonte high school because the respondent district had established a township high school at Pleasant Gap for the education of all advanced pupils in the township of Spring, and placed said school in charge of a competent teacher, a graduate of a chartered college; that should the respondent district agree to educate the children enumerated in the petition at the Bellefonte high school, it would be a precedent for a large number of other children to apply, who live near Bellefonte, and thus destroy the usefulness of their own township high school; that there are but twenty-seven pupils in the high school of Spring township, and that room for double that number could be made, if necessary. After other averments as to the number and location of the schools of the district, the cost of maintaining them, .the indebtedness of the district, and the number of pupils attending the schools of the district, as well as of those attending the schools of Bellefonte, for whose education the respondent district was paying, the answer concluded with the averment, “that in establishing the township high school at Pleasant Gap, your respondents took into consideration that there was the largest number of pupils living in and .around Pleasant Gap who were ready for the high school training and also that there was a suitable building at Pleasant Gap for the high school; that in establishing the schools of Spring township, as well as the high school, your respondents exercised the wisest discretion possible and that their conclusions are arrived at after mature deliberation.” After hearing upon depositions the court made absolute the rule, and from that order this appeal was taken.

It is seen from the above reference to the petition and answer that the action of the court involved a review and setting aside of the discretion of the school directors and the substitution of the court’s discretion therefor. The counsel for the appellees, while not denying that a discretion is vested in the school directors with reference to the subject-matter of the petition, contends that it is a reviewable discretion and may be overruled if unreasonably or arbitrarily exercised. But before considering the question whether under the evidence there was a clear abuse of discretion resulting in failure to perform official duty, we deem it important to determine whether the court of quarter sessions had jurisdiction. This question is fairly raised by the fourth and fifth assignments of error. The opinion of the learned judge rests the jurisdiction of the court upon the act of 1854, and it would seem, from the form of the prayer of the petition, that the petitioners sought to enforce performance of the duty imposed by paragraph IX, sec. 23, of the act of May 8, 1854, which provides that “if it shall be found, that on account of great distance from, or difficulty of access to the proper school house in any district, some of the pupils thereof could be more conveniently accomodated in the schools of an adjoining district, it shall be the duty of the directors or controllers of such adjoining districts, to make an arrangement by which such pupils may be instructed in the most convenient school of the adjoining district; and the expense of such instruction shall be .paid, as may be agreed upon by the directors or controllers of such adjoining districts, by resolution or agreement entered upon the minutes of the respective boards.” Section 9 of the same act provides that if all the members of any board of directors or controllers shall refuse or neglect to perform their duties by levying the tax required by law, and to put or keep the schools in operation so far as the means of .the district will admit, “ or shall neglect or refuse to perform any other duty enjoined by law,” the court of quarter sessions may, upon complaint in writing and upon due proof, declare their seats vacant and appoint others in their stead until the next annual election for directors. But no statute has been pointed out authorizing the court of quarter sessions to compel, by a direct proceeding, the directors to make a contract with the directors of another district such as was decreed in this case. None is referred to in Young v. School Directors of Pymatuning Township, 14 Pa. D. R. 473, or in Freeman v. School Directors of Franklin Township, 37 Pa. 385. Certainly no such power is given to the court of quarter sessions by the Act of June 28, 1895, P. L. 413, relative to the establishment, classification and maintenance of high schools, or by the Act of April 3, 1903, P. L. 153, relative to the attendance of children of certain districts upon high schools in other districts, or by the Act of March 16, 1905, P. L. 40, permitting children residing in school districts in which no public high school is maintained to attend the high school in some other district located near their homes and providing for the payment of cost of tuition and schoolbooks, or by the Act of May 2,1907, P. L. 158, to permit children who reside one and one-half miles or more from the nearest school in the district where they reside to attend any more convenient school in any other district. These are all of the acts that are referred to in the briefs of counsel, and, as we said, none of them authorizes the court of quarter sessions to coerce school directors into entering into such a contract as is contemplated by the petition. . The act of 1854, as has been seen, gives the court power, under certain circumstances, to remove the directors, and the same power is given, under other circumstances, by the Acts of June 6, 1893, P. L. 330 and 339. But this power manifestly does not include the power here claimed, and it is needless to say that it is not included in the general jurisdiction of the court of quarter sessions. We have deemed it important .to go into this question, because by reviewing the case on the merits we would seem to be establishing a precedent unwarranted by law.

The order is reversed and the whole proceedings are dismissed, at the costs of the petitioners.


text:
    Thompson, Appellant, v. Stone.

      Contracts — Cancellation—Sale—Evidence.
    1. Parties to a contract, so long as it is executory, may at any time rescind it either in whole or in part by mutual consent, and the surrender of their mutual rights is sufficient consideration; but there can be no cancellation unless the intention of the parties be clearly shown. This may be by express agreement to that effeet, or it may be shown by the circumstances of the case. But it must be shown.
    2. In an action for the breach of a contract to accept goods agreed, to be bought on monthly deliveries, it appeared that both parties waived strict compliance with the terms of the contract except in respect to the times of deliveries. After the time specified in the contract for the last delivery had expired for a considerable period the parties met. One of the defendants testified that at this meeting he made the proposition that if the plaintiffs would extend the time to take the remaining goods and permit the defendants to take them as their business would allow them to do, they, the defendants, would pay for them the prevailing prices in the market at the time the goods were delivered, and that plaintiffs assented to this proposition. There was evidence, that subsequently to the alleged supplemental agreement the defendants wrote to the plaintiffs that they considered the contract as canceled, and that if the plaintiffs wished to continue to do business they would have to submit them new samples .with prices. After some further correspondence the plaintiffs notified defendants that unless they took the remainder of the goods without further delay, they would sell them in the market and hold them for any loss. Subsequently the goods were sold, and suit was brought for the loss. The trial judge charged that if the defendants’ version of the transaction was a correct one, it was conclusive of the question of cancellation. Held, that the instruction was erroneous inasmuch as such evidence was only to be taken into consideration with all that had gone before and came afterwards upon the question whether the contract was rescinded by mutual agreement of the parties.
    Argued Oct. 13, 1909.
    Appeal, No. 155, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., June T., 1908, No. 2,005, on verdict for defendants in case of David F. Thompson et al., trading as Thompson, Son & Company, v. Pia Stone et al., trading as Stone Brothers & Company.
    Before Rice, P. J., Henderson, Morrison, Ordady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover damages for breach of a contract for the sale of goods. Before Audenried, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [On February 10, however, a meeting took place in the office of Thompson, Son & Company, in New York, between two of the partners of that concern, Mr. Thompson and Mr. Bryson, on one side, and one of the defendants on the other. This particular defendant, Morris Stone, went to New York and called at the plaintiffs’ office on the morning of that day, and referring to the correspondence which passed between them, said that they were not in a position to do as the plaintiffs requested the defendants to do, and take all the goods at once; that, in fact, he did not want to take any more goods unless the price could be reduced, that times were hard, he could not sell the output of his factory, he had- been obliged to mark down the price of his goods, and that he wanted the plaintiffs to make a reduction in the price at which these goods were to be paid for. They seem to have replied by requesting him to take the goods promptly. He said he could not do that. Mr. Thompson then said that if he would take the goods within a reasonable time he could have them at the price of six and one-half cents a yard, although the original price fixed by the contract was seven and five-eighths cents per yard. So far, Mr. Morris Stone and Mr. Thompson agree as to what was said between them. They agree also in saying that Mr. Stone replied to Mr. Thompson that he would take the goods at that price, but he was unwilling to have the goods charged against him then, immediately. He said he could not raise the money with which to pay the bill. The case, I think, turns on what transpired between these men in the afternoon, when Mr. Morris Stone returned to the plaintiffs’ place of business. According to the testimony of Mr. Stone,- the plaintiffs, at his instance, modified their proposition of the morning, and said that they were willing to waive performance of the contract made between them and the defendants on May 15, 1907, and let the defendants take the goods just as the requirements, of their business made it convenient for them to do so, and charge the goods to the defendants at the market price prevailing at the time the goods were delivered. Now, Mr. Thompson says that no such arrangement was made between him and Mr. Stone.] [1]
    [Mr. Bryson testifies to the talk between himself and Mr. Stone, which seems to indicate that the modification in these terms of the original contract between these parties, which had been agreed on, was not what Mr. Stone said it was. If what Mr. Stone says about this matter is correct, the plaintiffs’ case fails. If you believe that on February 10, it was agreed between the plaintiffs and the defendants, acting by their partners who were present at this interview, that the plaintiffs would waive the exact performance by the defendants of the terms of their agreement of May 15, 1907, and that they would permit the defendants to call for the goods just as they needed them, and pay for them at the price prevailing in the market at the time the goods might be called for, as each lot of goods might be called for, then, under that view of the matter, the verdict in this case ought to be in favor of the defendants.] [2]
    [If what Mr. Stone says about this matter is correct the plaintiffs’ case fails.] [3]
    [If the goods were sold, and sold at these prices, and these prices were the market prices, and in so selling them the plaintiffs acted as reasonable business men would act under the circumstances, and they had the right to sell them because of the default on the part of the defendants in taking the goods within a reasonable time after February 10, 1907, then I charge you that for the loss on the goods, that is, the difference between the prices at which the goods sold and the price at which the defendants agreed to accept and pay for them, seven and five-eighths cents a yard, the defendants are responsible.] [4]
    [The plaintiffs have asked that after this be awarded them you award them also, in addition to that, an allowance of six per cent on the original contract price of the eleven cases of cambric, amounting to $121.86, to cover insurance, expenses of handling, and compensation for efforts to make the sale. In my judgment the proofs do not entitle them, under any view of the case, to an allowance of that commission here. I instruct you that if your verdict is for the plaintiffs, it cannot exceed the sum of $753.88 with interest from May 15, 1908.] [5]
    6. The learned court erred in his charge to the jury in instructing them as follows:
    [If, however, you are of the opinion that the terms of this contract were so waived by Mr. Thompson and Mr. Stone when they met on February 10, 1908, at Mr. Thompson’s office in New York, that the arrangement then left remaining open between the defendants and the plaintiffs was that the defendants would call for the goods just as the requirements of their business made desirable, and the plaintiffs would, when the goods were called for, deliver them and charge for them at the rate prevailing in the market at the time the cambric was delivered, your verdict ought to be in favor of the defendants and against the plaintiffs.] [6]
    Verdict and judgment for defendants. Plaintiffs appealed.

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

      J. Siegmund Levin, for appellants.
    The modification of the contract alleged by the defendants to have been made was void by reason of lack of mutuality and certainty: American Cotton Oil Co. v. Kirk, 68 Fed. Repr. 791; Crane v. Crane & Co., 105 Fed. Repr. 869; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. Repr. 77; Teipel v. Meyer, 81 N. W. Repr. 982; Higbie v. Rust, 112 Ill. App. 218; Ames v. Pierson, 4 Pa. Dist. Rep. 392.
    July 20, 1910:
    There was no consideration for the alleged modification of the contract: Moyer v. Kirby, 2 Pearson, 64; Strange v. Carrington, 116 Ill. App. 410; Weed v. Spears, 86 N. E. Repr. 10; Cannon v. Young, 5 Pa. Dist. Rep. 772; McNish v. Reynolds, 95 Pa. 483; Rumberger v. Golden, 99 Pa. 34; McIntyre v. Mining Co., 60 Pac. Repr. 552; Unruh v. Taylor, 43 Atl. Repr. 515; Willingham Sash & Door Co. v. Drew, 45 S. E. Repr. 237; Alaska Assn. v. Domenico, 117 Fed. Repr. 99; Zerr v. Klug, 121 Mo. App. 286.
    The defendants having notified the plaintiffs that the contract was canceled, and the plaintiffs in consequence thereof, after due notice to the defendants having sold the balance of the goods for their account, the defendants were by reason of such notice precluded from setting up other reasons as a ground for their refusal to accept the goods: United Fruit Co. v. Bisese, 25 Pa. Superior Ct. 170.

      Julius C. Levi, for appellees,
    cited: Flegal v. Hoover, 156 Pa. 276; Dreifus v. Salvage Co., 194 Pa. 475; McNish v. Reynolds, 95 Pa. 483; Malone v. Philadelphia & Reading R. R. Co., 157 Pa. 430.
   Opinion by

Rice, P. J.,

In this action of assumpsit the plaintiffs sought to recover damages for the breach of a certain contract made in May, 1907, whereby the plaintiffs agreed to deliver, and the defendants agreed to accept and pay for, twenty-five cases of cambric at the price of seven and five-eighths cents per yard. A memorandum of the terms of the contract was made by the plaintiffs and delivered to the defendants, by which it appears that the goods were to be delivered in the following September, October, November and December, and that the defendants were to have sixty days after delivery for payment and were to be allowed a discount of two per cent, if payment was made within that time, and an additional discount of one per cent, if made within ten days. Before the end of December, 1907, the defendants had taken and paid for, at the contract price, eleven cases of the goods. The circumstances show that both parties waived strict compliance with the terms of the contract in respect to time, but up to February 10, 1908, both regarded it as binding upon them in all other respects. After that date the defendants ordered three more cases of cambric to be shipped to them. These orders were filled and the plaintiffs billed the goods at six and one-half cents per yard, on which basis they were paid for. About the middle of April the plaintiffs pressed the defendants to take the rest of the cambric called for by. the contract. The latter replied that the contract of May 15, 1907, had been .canceled and that they were under no obligation to take more goods. We shall refer to this later. After some correspondence on the subject the plaintiffs notified defendants that unless they took the remainder of the cambric without further delay they would sell it in the market and hold them for any loss that might result. Subsequently these goods were sold by the plaintiffs at prices which realized’ $753.88 less than they would have yielded at the contract price. Plaintiffs claim to recover this sum and a commission of six per cent for expenses of resale. The foregoing statement of undisputed facts is taken substantially from the opinion of the learned judge refusing a new trial.

The principal controversy arises out of what took place at a conference on the afternoon of February 10, 1908, between James Bryson, one of the plaintiffs, and Morris Stone, one of the defendants. The testimony on the subject was in conflict and the court submitted to the jury the determination of the question whether the version given by Bryson or that given by Stone was the correct one, but instructed them that if they found the latter to be correct their verdict should be for the defendants. It is important, therefore, to see what his version was. He says that he made the proposition that if the plaintiffs would extend the time to take the remaining cases of cambric and permit the defendants to take them as their business would allow them to do they, the defendants, would pay for them the prevailing prices in the market at the time the goods were delivered, and that Bryson assented to this proposition. This is the substance of the defendants’ testimony in chief upon tins subject. We quote now from his cross-examination: “Q. There were fourteen cases, and when were you to take them? A. I agreed with Mr. Bryson to take them as soon as my business allowed me. Q. During what year, in what particular time? A. There was no time mentioned. Q. You were to take them just whenever you wanted? A. Yes, as the business allowed it. . . . Q. Who was to fix the date when the cases,, when the rest of the goods were to be delivered? A. Nobody; the business conditions. Q. Whose business conditions? A. Of this country. Q. Whose business conditions? A. Mine.” The appellants’ counsel argues that such an agreement lacks the certainty, definiteness and mutuality which are necessary constituents of a legal obligation, and the authorities cited by him tend to support this proposition. The defendants seem to have taken the same position, for on April 18, 1908, they wrote to the plaintiffs as follows: “Yours of the 17th instant is at hand, and in reply to same beg to state that we have no goods on contract with you, the goods in question have been canceled some time ago. And if you wish to continue to do business with us you will have to submit new samples with prices.” It was not until after suit was brought that the defendants took the position that the supplementary agreement of February 10, 1908, was in force and would be carried out by them. Speaking of the foregoing letter the learned judge, in his opinion refusing a new trial, says that it is not inconsistent with the defendants’ testimony in the case, because the agreement of February 10, 1908, by reason of its lack of certainty, imposed no contractual obligation on the defendants. If that be true, and we are inclined to the opinion that it is the correct view, it is difficult to seé how it could in and of itself be held as matter of law to have superseded the original contract.. But it is argued that the case before us is one of cancellation by mutual releases and hence it is immaterial whether or not the new agreement created an enforceable obligation. This assumes that there was a cancellation of the original agreement. That the parties to a contract, so long as it is executory, may at any time rescind it, either in whole or in part, by mutual consent, and that the surrender of their mutual rights is sufficient consideration, is well settled: Flegal v. Hoover, 156 Pa. 276; Reber v. Brownback, 27 Pa. Superior Ct. 471. But there can be no cancellation unless the intention of the parties be clearly shown. This may be by express agreement to that effect, or it may be shown by the circumstances of the case. But it must be shown. We assume that there may have been a cancellation of the original contract, although the agreement of February 10, 1908, did not create an enforceable obligation. The difficulty we find in the case is in concurring with the learned judge’s instructions that, if the defendants’ version of the transaction was the correct one, it was conclusive of the question of cancellation. In our view of the case it was evidence to be taken into consideration with all that had gone before and came afterwards upon the question whether the contract was rescinded by mutual agreement of the parties, but was not of itself conclusive upon that question. Therefore, the assignments of error, in so far as the instructions therein recited upon this subject are in conflict with this view, are sustained.

Upon the question of the right to recover commissions on a resale, the learned judge instructed the jury that the proofs were insufficient to sustain the claim, and in that conclusion we concur.

• We have not gone into as full discussion of the case as might be warranted, because we think it is very clearly stated in the opinion of the learned judge refusing a new trial. We have endeavored to point out the reasons for our inability to agree with him as to the legal effect of the agreement entered into on February 10, 1908, assuming the defendants’ version of what took place in the afternoon of that date to be correct.

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