author: CERCONE, Judge.

text:
    633 A.2d 196
    Dorthea MURRAY, Executrix of the Estate of Perry Murray, Deceased, and Dorthea Murray in her own right, Appellant, v. HAMOT MEDICAL CENTER OF the CITY OF ERIE, a Corporation, Community Blood Bank of Erie County, a Corporation, George J. D’Angelo, M.D., Individually and George F. Kish, M.D., Individually, both d/b/a the D’Angelo Clinic v. REGIONAL CLINICAL LABORATORIES OF NORTHEASTERN PA and Pathology Associates of Erie, Inc. (Two Cases)
    Superior Court of Pennsylvania.
    Argued July 22, 1993.
    Filed Nov. 4, 1993.

      Franklyn E. Conflenti, Pittsburgh, for appellant.
    Harry Kunselman, Pittsburgh, for Hamot Medical, appellee.
    John W. Beatty, Erie, for Community Blood Bank, appellee.

      Patricia J. Kennedy, Erie, for D’Angelo, M.D. & Kish, M.D., appellees.
    Before CAVANAUGH, BECK and CERCONE, JJ.
   CERCONE, Judge.

The issues raised in this appeal concern the proper application of the statute of limitations for personal injury arising out of the contraction of the Human Immunodeficiency Virus (HIV), which causes Acquired Immune Deficiency Syndrome (AIDS).

The circumstances of this case are tragic, indeed. In June, 1985, the decedent, Perry Murray, was admitted to Hamot Medical Center in Erie, Pennsylvania, for open heart surgery. During surgery, Mr. Murray required a blood transfusion, which his doctors administered. In June of 1987, Hamot Medical Center officials learned that the donor of his blood had tested positive for HIV. They contacted Mr. Murray and recommended that he be tested for the virus, as well. That same month, Mr. Murray learned that he had, in fact, contracted HIV. More thorough testing confirmed this result. In June, 1989, the decedent began to suffer from various ailments, referred to in the complaint as “HIV infection together -with accompanying persistent dysfunctions,” including loose bowels, swollen feet, mouth ulcers, fatigue and corresponding weight loss.

On October 28, 1991, the decedent and his wife (appellants) instituted the instant suit against Hamot Medical Center, the Community Blood Bank of Erie County, Drs. George D’Angelo and George Kish, his treating physicians, and their medical group, the D’Angelo Clinic. The complaint alleged causes of action for negligence and lack of informed consent against each party, which caused Mr. Murray to contract HIV with accompanying persistent dysfunctions. After various appellees filed preliminary objections, but before oral argument on the objections, appellants agreed to amend their complaint. Appellants filed their first amended complaint on May 4,1992. The appellees again filed preliminary objections to the amended complaint. On August 24, 1992, the trial court granted preliminary objections of each of the appellees as to counts II, V and VIII of the amended complaint, which alleged causes of action based on lack of informed consent. The trial judge held that these claims failed to state a recognized cause of action. Appellants sought an appeal of the trial court’s order in this Court. We quashed the appeal as interlocutory.

Before the trial judge granted the aforementioned preliminary objections, appellee Community Blood Bank of Erie, filed a motion for summary judgment on grounds that the time period for bringing the action had expired. The trial judge granted this motion on December 4, 1992, finding that appellants knew about the injury to the decedent for more than two years before filing their writ of summons. The trial judge also held that the “separate disease rule,” applicable in asbestos actions, did not apply to this matter. The other appellees filed similar motions for summary judgment which the trial judge granted on December 23, 1992. Appellants filed timely appeals to both the order granting preliminary objections and the orders granting the various motions for summary judgment. The appeals have been consolidated for our review and raise the following issues:

1. In a medical malpractice action wherein the plaintiff contracts HIV from tainted blood, is the absence of any discernible physical injury to the plaintiff and the concealment of the responsible party sufficient to toll the statute of limitations;
2. In a medical malpractice action involving the administration of blood, does the lack of informed consent state a proper cause of action.

As a preliminary matter we have two outstanding filings which we must review. First, counsel for The Pathology Associates of Erie, Inc., an additional defendant in the lower court action, seeks leave to withdraw since no complaint has been filed against it. Because of our disposition in this matter, as set forth below, we hereby grant counsel’s petition to withdraw.

We also have before us appellants’ outstanding request for this Court to take judicial notice of certain facts regarding the medical community’s knowledge of AIDS in 1987. Appellees, Hamot Medical Center, and Drs. Kish and D’Angelo filed a motion to quash this request since appellants failed to offer such facts in the lower court. It is well-established that an appellate tribunal may not take judicial notice of facts not supported in the certified record. Although an appellate court may take judicial notice of a fact to the same extent as the trial court, we cannot take judicial notice of facts where such facts were never offered into evidence in the lower court. Ware v. McKnight, 368 Pa.Super. 502, 506, 534 A.2d 771, 773 (1987), rev’d on other grounds, 520 Pa. 89, 552 A.2d 666 (1988). In the present case, appellants never requested the lower court to take judicial notice of the facts offered here. We are therefore constrained to deny appellants’ request. We turn now to the merits of the appeal.

Our standard of review from orders granting summary judgment is well-settled:

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. Rule 1035(b)____ In passing on a motion for summary judgment the court must examine the record in a light most favorable to the nonmoving party____ It is not a part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried____ Any doubt must be resolved against the moving party.... The court, in ruling on a motion for summary judgment, must ignore the controverted facts contained in the pleadings.... The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Samarin v. GAF Corp., 391 Pa.Super. 340, 346-47, 571 A.2d 398, 401-02 (1989), allocatur denied, 524 Pa. 624, 574 A.2d 66 (1990) (quoting Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986)) (citations omitted) (emphasis in original). We will overturn a trial court’s entry of judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). Summary judgment is appropriate where the statute of limitations on a cause of action has expired. A. McD. v. Rosen, M.D., 423 Pa.Super. 304, 307, 621 A.2d 128, 130 (1993).

Appellants first argue that the trial court erred in granting summary judgment by finding that the period of limitations had expired before the instant actions were initiated. Specifically, they contend that there remains an issue of fact as to when the decedent began suffering from full-blown AIDS emanating from the HIV infection. Alternatively, appellants claim that this Court should apply the “separate disease” rule, developed in asbestos cases, to HIV and any subsequent development of AIDS or AIDS-related complex (ARC). We shall discuss each of these claims.

The applicable statute of limitations is set forth in 42 Pa.C.S.A. § 5524(1), (2) and provides for a two-year period within which a plaintiff must bring an action for negligence which causes personal injury, or an action based on lack of informed consent. A recent en banc decision of this court thoroughly discussed application of the statute of limitations, as follows:

“As a matter of general rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do[es] not toll the running of the statute of limitations.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983) (citations omitted) (emphasis added). See: Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964). See also: A. McD. v. Rosen, M.D., supra [423 Pa.Super.] at 307, 621 A.2d at 130. In general, the statutory period will begin to run when the cause of action accrues, i.e., the date on which the injury is sustained. Pounds v. Lehman, M.D., 384 Pa.Super. 358, 361, 558 A.2d 872, 873, allocatur denied, 523 Pa. 643, 565 A.2d 1167 (1989). An injury is done “ ‘when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.’ ” Id., quoting Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959).

Ingenito v. AC & S, Inc., — Pa.Super.-,-, 633 A.2d 1172, 1174 (1993) (en banc).

In cases where “creeping diseases” are involved, however, Pennsylvania courts have adhered to the discovery rule in ascertaining when the statute of limitations begins to run. Our Courts have most frequently applied the rule in cases concerning asbestos exposure. See id.; Lucera v. Johns Manville Corp., 354 Pa.Super. 520, 512 A.2d 661 (1986); Tries-chock v. Owens Coming Fiberglas Co., Inc., 354 Pa.Super. 263, 511 A.2d 863 (1986), allocatur denied, 514 Pa. 619, 521 A.2d 933 (1987); Morgan v. Johns-Manville Corp., 354 Pa.Super. 58, 511 A.2d 184 (1986), allocatur denied, 514 Pa. 636, 522 A.2d 1105 (1987).

Because of the nature of HIV transmission and its detection, we find that the discovery rule is appropriately applied in cases involving HIV infection, as well. The Human Immunodeficiency Virus (HIV) is transmitted by direct blood-to-blood contact or by sexual contact with an infected individual. Levine, Acquired Immunodeficiency Syndrome: The Facts, 65 S.Cal.L.Rev. 423, 427 (1991). Once a person becomes infected with HIV, the virus attaches itself to T4 cells which are responsible for immune function in humans. Id. The virus then multiplies and impairs the immune system, ultimately allowing other infections to occur far more frequently than normal, with devastating effects. Note, Standards of Conduct, Multiple Defendants, and Full Recovery of Damages in Tort Liability for the Transmission of Human Immunodeficiency Virus, 18 Hofstra L.Rev. 37, 44 (1989). Once a person has been infected with HIV, the virus begins to incubate over time. Thus, although a person infected with the virus may remain asymptomatic and may appear well in all respects, the virus continues to affect the host’s immune system until it becomes so depressed that a limitless number of life-threatening infirmities may occur. Levine, Acquired Immunodeficiency Syndrome: The Facts, 65 S.CaLL.Rev. at 429. The period in which the virus incubates is indeterminate. It may be as short as one year and can extend as long as fourteen years. Note, Standards of Conduct, Multiple Defendants, and Full Recovery of Damages in Tort Liability for the Transmission of Human Immunodeficiency Virus, 18 Hofstra L.Rev. at 44 n. 38; Note, Tort Liability for the Transmission of the AIDS Virus: Damages for Fear of AIDS and Prospective AIDS, 45 Wash. & Lee L.Rev. 185, 186 n. 4 (1988). Because of its inherent latency, HIV will likely be undetected for a long period of time. Thus, in cases such as this, where HIV has been transmitted through a blood transfusion, the discovery rule is particularly applicable since the prospective plaintiff will have no indication that he carries the virus.

In Ingénito, supra, our esteemed colleague, Judge Wieand, writing for the en banc majority, detailed a thorough discussion of the discovery rule.

The “discovery rule” is an exception to the rule which arises from the inability of an injured person, despite the exercise of due diligence, to know of the injury or its cause. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040,1043 (1992); Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra [503 Pa.] at 85, 468 A.2d at 471. In creeping diseases cases, it has been held, the statute of limitations begins to run when the injured person “knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Cathcarb v. Keene Industrial Insulation, 324 Pa.Super. 123, 136-137, 471 A.2d 493, 500 (1984) (footnote omitted). “A court presented with an assertion of applicability of the ‘discovery rule’ must, before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra [503 Pa.] at 85, 468 A.2d at 471. “ ‘The standard of reasonable diligence is an objective or external one that is the same for all individuals.’ ” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985), quoting Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982). “We evaluate the plaintiffs conduct in terms of what he should have known at a particular time by following a course of reasonable diligence. If a party has the means of discovery within his power but neglects to use them, his claim will still be barred.” Burnside v. Abbott Laboratories, supra [351 Pa.Super.] at 292, 505 A.2d at 988. See: DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 508, 460 A.2d 295, 303 (1983). A plaintiff does not need to know that he has a cause of action, or that he has suffered an injury due to another party’s wrongful conduct. “ ‘[0]nce [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.’ ” Burnside v. Abbott Laboratories, supra [351 Pa.Super.] at 291, 505 A.2d at 987-988, quoting Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984) (emphasis omitted). A diligent investigation may require one to seek further medical examinations as well as competent legal representation. Souders v. Atlantic Richfield Co., 746 F.Supp. 570, 573 (E.D.Pa.1990), citing United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259, 270 (1979).
Where the issue involves a factual determination regarding what is a reasonable time for plaintiff to discover his injury and its cause, the issue is usually for the jury. Hayward v. Medical Center of Beaver County, supra [530 Pa.] at 325, 608 A.2d at 1043; A McD. v. Rosen, M.D., supra [423 Pa.Super.] at 307, 621 A.2d at 130; MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 423, 578 A.2d 970, 974 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991); Burnside v. Abbott Laboratories, supra [351 Pa.Super.] at 292, 505 A.2d at 988. However, where the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury or its cause was unreasonable as a matter of law, summary judgment may be entered by the court. Cams v. Yingling, M.D., supra [406 Pa.Super. 279,] at 285, 594 A.2d [337,] at 340. See also: A. McD. v. Rosen, M.D., supra; MacCain v. Montgomery Hospital, supra.

Ingenito, —— Pa.Super. at —, 633 A.2d at 1174.

In the present case, the decedent had open heart surgery in June, 1985. It was during that operation that his doctors authorized the blood transfusion through which he contracted HIV. In June, 1987, Dr. D’Angelo contacted Mr. Murray and advised him that the blood which was used in the transfusion was tainted with HIV. He then asked Mr. Murray to undergo testing for presence of the virus. During the same month, the test revealed that Mr. Murray was HIV-positive. Subsequent blood tests confirmed that result. Moreover, Dr. D’Angelo related to the decedent that the tainted blood was given to him through the transfusion which occurred during the open heart surgery in June, 1985. None of the parties to this action disputes these facts. Thus, the discovery rule applies to toll the statute of limitations until the time that Mr. Murray learned that he was infected with HIV and knew of its cause. Once he learned that he was infected by the virus, in June 1987, and knew that the injury emanated from the blood transfusion, it was incumbent upon him to take legal action for his injury within two years from that date, by June, 1989. Appellants did not file the instant action until October, 1991. Therefore, even applying the discovery rule to the facts of this case, appellants’ action is still time barred.

Appellants make two arguments in support of their delay in filing. First, they contend that to sue based on HIV transmission, without any corresponding illness would mean that the claim was premature and no viable cause of action could be proven. We are constrained to disagree with appellants in this regard. First, we note that the statute of limitations does not begin to run when an injured party learns he has a viable cause of action. Burnside v. Abbott Laboratories, swpra. Rather, an injured party must sue when he learns of the injury and its cause. In this vein, we deem the decedent to have suffered an injury once he was infected with HIV. His cause of action began to accrue when he subsequently learned about the infection and its cause, in June, 1987, after testing positive for HIV.

We do not agree with appellants’ assertion that an HIV-infected person, in this regard, has no damages during the time he is asymptomatic. The Human Immunodeficiency Virus is contagious. Accordingly, once a person learns that he has been infected with HIV, he will likely take steps to avoid its transmission. This entails changes in and limitations to his lifestyle. Also, HIV does not lie in a dormant state even though an infected individual is asymptomatic. The virus begins to multiply and deplete the body of cells necessary to proper immune functioning. Accordingly, those who test positive for HIV begin treatment in an attempt to slow the progression of the virus’ reproduction. Cf. Giffear v. JohnsManville Corporation, 429 Pa.Super. 327, 632 A.2d 880 (1993) (No. 1038 Philadelphia 1992, filed September 16, 1993) (en banc), slip op. at 19 (restrictions in activities or physical debility may be sufficient to demonstrate injury from pleural thickening in asbestos cases). Such damages are real. We therefore hold that sufficient injury exists upon which a suit may be brought, at the very least, when the injured party learns of his infection with HIV.

Appellants also claim that their infectious disease specialist, Dr. Lee VanVoris, misrepresented to them that Mr. Murray did not have AIDS and might not ever develop AIDS. They contend that such evidence demonstrates that they were lulled into a false sense of security by these statements thereby causing them to relax their vigilance. They argue that under caselaw in this jurisdiction, the appellees are estopped from asserting the statute of limitations as a defense for that period of time that they concealed the true nature of Mr. Murray’s condition. Although the statute of limitations will be tolled under the discovery rule for that period during which a physician fraudulently conceals relevant facts regarding a patient’s medical condition, see Citsay v. Reich, 380 Pa.Super. 366, 371, 551 A.2d 1096, 1098-99 (1988), such circumstances are not present in the instant matter. At no time did Dr. VanVoris conceal that appellant was infected with HIV. Also, the appellants specifically knew that the virus was transmitted from the blood Mr. Murray received during open heart surgery. It is immaterial whether appellants thought that Mr. Murray’s subsequent infirmities were not indicative of full-blown AIDS or AIDS-related complex (ARC), since he knew of the injury and its cause.

It is also worth noting that in the affidavit of Mrs. Murray in opposition to the motions for summary judgment, she indicated that she and her husband were devastated to learn that Mr. Murray had contracted HIV. Thus, they were aware of the grave nature of the virus. Moreover, accepting as true, as we must, that Dr. VanVoris related to appellants that Hamot Medical Center wanted to help them financially, but did not wish to be sued, appellants were certainly on notice that legal recourse might exist. We therefore find no evidence that Dr. VanVoris concealed any material facts from appellants or acted to relax their vigilance in this regard. Accordingly, we find that summary judgment against appellees was proper since the statute of limitations had expired for causes of action based on the blood transfusion and negligent transmission of HIV.

Our decision today also comports with decisions in other jurisdictions which have addressed this issue. Thus, in J.K. and Susie L. Wadley Research Institute and Blood Bank v. Beeson, 835 S.W.2d 689 (Tex.Ct.App.1992), the appellant instituted survival and wrongful death claims against a blood bank which negligently transmitted blood tainted with HIV to her husband. The court rejected the Blood Bank’s argument that the statute of limitations had run because the husband had not learned of his infection until he developed symptoms of AIDS four years after having undergone coronary bypass surgery during which he became infected. The Texas Court of Appeals held that the statute of limitations for HIV infection is tolled until that time in which the injured party learns of the infection. Id. at 695. See also Sweeney v. Presbyterian/Columbia Medical Center, 763 F.Supp. 50 (S.D.N.Y.1991) (discovery rule codified in New York statute allows a person infected with HIV to sue within three years after discovery of the injury). Accord Gandara v. Slade, 832 S.W.2d 164 (Tex. Ct.App.1992); DiMarco v. Hudson Valley Blood Services 147 A.D.2d 156, 542 N.Y.S.2d 521 (1989); Prego v. City of New York, 147 A.D.2d 165, 541 N.Y.S.2d 995 (1989). We therefore hold that all of appellants’ causes of action for negligence and lack of informed consent are barred by the two-year statute of limitations set forth in 42 Pa.C.S.A § 5524.

Finally, appellants claim that even if their causes of action for HIV infection are time-barred, we should apply the “separate disease rule” as enunciated in this Court’s en banc decision in Marinanri v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992) to allow appellants’ cause of action for negligent contraction of AIDS. We find, however, that this issue is not properly before us and any discussion on our part would be merely advisory. Appellants have not amended their complaint to include causes of action for negligent contraction of AIDS. Nor is there a separate action presently before us which alleges such causes of action. Appellants have only alleged causes of action for negligent transmission of the HIV virus and lack of informed consent as to the blood transfusion. Having only alleged one injury, we may not consider whether an action for separate injury may be brought.

Orders affirmed. Petition of Pathology Associates of Erie, Inc. is granted. Request to take judicial notice is denied. Jurisdiction is relinquished.

      . The parties contest whether the decedent knew that these ailments constituted full-blown AIDS.

      . Perry Murray died in November, 1992, before the trial judge issued his order granting the motions for summary judgment. Appellees, George D’Angelo, George Kish and the D’Angelo Clinic, filed a motion for substitution of party in accordance with Rule of Appellate Procedure 502(a). We granted this motion, thereby allowing the representative of Mr. Murray’s estate, appellant Dorthea Murray, to be substituted in the appeal. The caption was not altered by the Court’s order.


source: Caselaw Access Project

author: Beaveb, J.,

license: Public Domain

text:
    Wertz v. Oliver Township School District, Appellant.

      School law — High schools — Tuition—Suit by parent — Act of May 28, 1907, P. L. 202 — Presumption.
    1. A suit by the father of a pupil against the school district in which he resides to recover money paid for the tuition of the pupil in a high school in an adjoining district, can only be maintained for money which had been paid after the passage of the Act of May 23, 1907, P. L. 202.
    2. In such a suit where it appears that the principal of the high school of the adjoining district duly examined the son of the plaintiff for admission to his school, it will be presumed that he does so under the direction of the county superintendent, not only because the acts of a public officer are presumed to have been done in accordance with law, but also because a teacher with a certificate of the county superintendent, is supposed to act under his direction in all things so far as his duties are made subject to the direction of the county superintendent.
    Argued March 15, 1910.
    Appeal, No. 13, March T., 1910, by defendant, from judgment of C. P. Perry Co., Nov. T., 1908, No. 16, for plaintiff on case tried by the court without a jury in suit of H. W. Wertz v. School District of Oliver Township.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      April 18, 1910:
    Case tried by the court without a jury. Before Shull, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the judgment of the court in entering judgment for plaintiff for $17.85.

      Luke Baker, for appellant.

      James M. Barnett, of Barnett & Son, for appellee.
   Opinion by

Beaveb, J.,

The plaintiff was allowed to recover in the court below, in which the case was tried without a jury, the sum of $17.85 amount of tuition paid by him to the school district of the borough of Newport for tuition for his son for the years 1907-1908. His claim was for the sum of $75.09 for the years 1905-1906, 1906-1907 and 1907-1908. The court’s second conclusion of law, however, was “That plaintiff is not entitled to recover in this action the moneys paid for the years 1905-1906 or 1906-7.” The appeal is by the defendant township, which claims that the court should have found that the plaintiff was not entitled to recover any portion of the amount paid by him to the school district of the borough of Newport for the tuition of his son.

We held in Hughesville Borough School District v. Wolf Twp., 40 Pa. Superior Ct. 311, that, under the Act of March 16, 1905, P. L. 40, the school district maintaining a high school, in which were pupils from an adjoining district which maintained no high school, was entitled to recover for tuition so furnished. The act of 1905 has been amended by the Act of May 23, 1907, P. L. 202, in which it is provided: “It shall be the duty of the district in which said children reside to pay the cost of tuition and school books; and, upon their failure to do so, the same may be paid by the parent of such children, and by him collected as debts, of like amount are now collectible by law.”

In this case the father paid for the tuition of his son for several years, the court allowing recovery only for one year for the reasons set forth in its findings of fact and conclusions of law. The suit here being by the father of the pupil against the school district in which he resided for money paid, laid out and expended by him for the tuition of his son in the district adjoining that in which he lived, in which a high school is maintained, it is doubtless true that no recovery could be had before the passage of the enabling act of May 23, 1907.

The appeal is based upon strictly technical objections, in none of which do we recognize any special merit and to which no greater effect is required to be given than is absolutely necessary to carry into effect the provisions of our common school system (so-called) which is maintained under the first section of the tenth article of the constitution, which provides that “The general assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this commonwealth above the age of six years may be educated.” Before the adoption of the constitution of which this is a part, the commonwealth of Pennsylvania maintained what was supposed to be a system of public instruction which was in force at the time of the adoption of the constitution, under the one which was then in force, the basis of it being for the most part the Act of May 8, 1854, P. L. 617.

Among the court’s findings of fact, were: “First. Plaintiff is a citizen and resident of Oliver township, Perry county, Pa. Said township comprises a school district in which there is no public high school maintained. It adjoins the borough of Newport, in which said borough and school district there has been maintained a high school that is ‘located nearest and most convenient to the home’ of plaintiff.

“Third. In the year 1905-6, the cui’riculum of the High School compi'ised Mental and Written Arithmetic, Algebra, U. S. History, Civil Government, Political and Physical Geography, Spelling and English Grammar, Physics, Plane Geometry, Rhetoric, Eng. and Am. Literature, Latin Grammar and Cassar’s Latin Gallic War, and in 1907 were added Solid Geometry, English History, Botany and Zoology, which course was in 1907 submitted to the State Superintendent of Public Instruction, and by him approved. According to the provision of the act in such case provided, the special appropriation for the year 1907-1908 was allowed and paid to the Newport Borough School District by the State Treasurer.

“Seventh. The pupil, a son of plaintiff, prior to his admission, was examined by the principal, but it does not appear that such examination was ‘together with or under the direction the County Superintendent.’ Nor was there a high school within the meaning of the act, maintained in said borough prior to 1907.”

The act referred to in the seventh finding of fact doubtless is the Act of June 28, 1895, P. L. 413.

We held in Hughesville v. Wolf Twp., 40 Pa. Superior Ct. 311, that “Apart from the acts of May 26,1893, P. L. 146, and June 28, 1895, P. L. 413, a school district has the right to establish a high school under the powers conferred upon it by the General School Law of May 8, 1854, P. L. 617, which provides that ‘the directors and controllers of the respective districts shall have power to establish schools of different grades, and to determine into which school each pupil shall be admitted,’ ” and that “High schools created under this act are high schools within the meaning of the Act of March 16, 1905, P. L. 40, which provides that ‘ children residing in school districts in which no public high school is maintained may attend a high school in some other district located near their homes,’ with the consent of the directors of such district and payment of cost of tuition.”

The court, however, having found specifically that the tuition for which the plaintiff was allowed to recover was only that given after the high school provisions of the act of 1895, supra, had been complied with and the course of study had been approved by the state superintendent and the state appropriation had been made to the borough of Newport, in accordance with the provisions of the act, the general question which we had before us in Hughesville v. Wolf Twp., 40 Pa. Superior Ct. 311, does not arise.

The constitution having imposed upon the legislature the duty of maintaining and supporting a thorough and efficient system of public schools, wherein all the children of the commonwealth above the age of six years may be educated, and the legislature having enacted laws looking toward the establishment and maintenance of such a system, and having provided that the children of a township in which no high school is maintained may be educated in an adjoining municipality, in which such a high school is maintained, the legislation relating to that subject ought to be so construed as to give the largest possible effect to the enactments of the legislature looking toward a compliance with the provisions of the constitution. Not only will the legislature be presumed to have done its duty in endeavoring to meet by its enactments the requirements of the constitution, but we are dealing with public officials who are charged with the responsibility of carrying out the enactments of the legislature in such a way as to extend the beneficent scheme of education to which the people of the commonwealth have committed themselves in their fundamental law, and which is to be carried into effect through a system of education provided by legislation, whose chief merit, as recognized by educators in many years, has been its flexibility.

We have not heretofore regarded, nor do we regard the act of 1895, providing for the establishment of public high schools, as limiting the power of the school directors theretofore enjoyed, except as it limits their right to receive a portion of the special appropriation for the maintenance of high schools in the commonwealth. We are dealing, as already intimated, with the acts of public officers — those of the superintendent of public instruction of the commonwealth, of the- superintendent of public schools of the county of Perry, of the board of directors of the school district of the borough of Newport. The law presumes, in the absence of the finding of specific facts to the contrary, that they have all done their duty— that the school directors of the borough employed a competent principal, that the superintendent of public schools of the county, in certifying to the qualifications of a teacher qualified for the position of principal of the high school, did his duty, that the superintendent of public instruction of the commonwealth, in approving a curriculum of the high school of the borough of Newport, did his duty, and that, in appropriating the money of the commonwealth toward the support of such a high school, he also did his duty. We may presume also, without even an appearance of strained construction, that, when the principal of the high school of Newport borough examined the son of the plaintiff for admission to his school, he did so under the direction of the county superintendent. As a matter of fact, a teacher with the certificate of the county superintendent, is supposed to act under his direction in all things, so far as his duties are made subject to the direction of the county superintendent.

It was held in Danville State Hospital v. Bellefonte Borough Overseers, 163 Pa. 175, that “The maxim omnia prsesumuntur rite esse acta requires that their acts (those of the overseers in placing an insane pauper in the hospital at Danville) are presumed to be rightly done, without specific proof to.that effect;” and, upon this subject Mr. Justice Green, who delivered the opinion of the court, quoted from Comth. v. Slifer, 25 Pa. 23: “But the acts of public officers, where the rights of the public require it, should be construed with liberality. There is always a presumption that they are in accordance with the law. The presumption can be repelled only by clear evidence of illegality.”

It may be that the individual who paid for the tuition of his child or children in the high school of an adjoining township had not the authority to recover against the school district of the township in which he resided which maintained no high school, prior to the act of 1907, which gives him express authority to recover in his own name.

It is not necessary to consider the assignments of error of the appellant seriatim. They are all overruled.

Judgment affirmed.


author: Beaver, J.,

text:
    Commonwealth v. Spence, Appellant.

      Liquor law — Limitation on license.

    Where a person petitions for a retail liquor license, and strikes from the printed form the word “Spirituous" wherever it occurs in both petition and bond, and the court makes an order granting the license as “prayed for,” the licensee may be convicted of selling a low grade of whisky without a license, even if the license granted to him gives him the right to sell vinous, malt and brewed liquors.
    Argued March 17, 1910.
    Appeal, No. 3, Oct. T., 1910, by defendant, from judgment of Q. S. Chester Co., on verdict of guilty in case of Commonwealth v. James Spence.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for selling liquor without a license.
    At the trial the jury returned a verdict of guilty.
    On a motion for a new trial and in arrest of judgment, Butler, J., filed the following opinion:
    Prior to the passage, in 1887, of what is known as the Brooks high license act, the law provided for an inn or hotel license, under which spirituous, as well as vinous, malt and brewed liquor could be sold, and for an eating-house license, under which only the last named class of liquors, comparatively low in percentage of alcohol, could be sold. Where a fit person applied for a hotel license, and it was proved that he could provide proper meals and lodging for his guests, and it was further proved that the traveling public had substantial need for hotel accommodation at the place asked to be licensed, he was entitled to a hotel license. Where a suitable person applied for an eating-house license and demonstrated that the public needed his place as an eating house, he was entitled’to that form of license. The Brooks act of 1887 has created a retail liquor license, a license that has no necessary relation to a hotel or eating house, for it may lawfully be granted, and commonly is in the cities, to those who intend to provide the public with nothing but a liquor saloon. Confronted by this state of the law, Judge Futhey, then upon the bench of the district, felt that the public would be sufficiently accommodated with spirituous liquors, if the new retail liquor license should be confined to the hotels. He was not willing to grant it-for the creation of mere drinking places, nor did he consider it a proper license, authorizing as it did the sale of spirituous liquors, to grant to the eating houses. At the same time he was of opinion that those eating houses which were necessary to the convenience and comfort of the public, should be permitted to furnish liquors containing a small percentage of alcohol, as they had in the past, under the old eating-house license. Such licenses were granted by Judge Futhey, and have continued to be granted by his successors down to the present time, the licensees paying the same amount of license fee as the hotel proprietors who are granted the Brooks retail liquor license. The defendant, who has for many years conducted an eating-house in West Chester, after the passage of the act of 1887, annually applied for and received a license of the character above described, to sell vinous, malt and brewed liquors, as sanctioned by the old eating-house license, until a few years ago, when having greatly improved his building, he asked for the retail liquor license of the act of 1887. Feeling as did Judge Futhey that this license should be confined to the necessary hotels of the county and concluding that his house was not needed as a hotel, because of its proximity to existing hotels, and the absence of occasion for more, the court refused to grant this license, but under another and appropriate application granted him the other form of license. Such a license he continued to apply for and receive; and such a license he held — authorizing the sale only of vinous, malt and brewed liquors at the time he was convicted. On the trial the proof was conclusive and unquestioned, that he sold spirituous liquor, what was substantially a low grade of whisky, very much richer in alcohol than any vinous, malt or brewed liquor, such a percentage as could not be produced by fermentation, but only by distillation. The jury was instructed that the defendant had no license to sell spirituous liquor, and that if he had done so, it was their duty to convict him. In support of this motion for a new trial, it is contended that error was committed in telling the jury that defendant had no license to sell spirituous liquor, that the license granted him must be treated as any act of 1887, retail liquor license, because, as is contended, the law sanctions no other retail license. We cannot subscribe to this. If the law permits no other retail liquor license to be issued, than that prescribed by the Brooks act, then the defendant’s request for, and the court’s granting of another and different kind of retail liquor license was a mere abortion, and defendant received no license at all. A few years ago he was refused the Brooks retail liquor license, and on his other petition granted a different license, which, on similar petition, has been renewed each year. In view of this, we cannot regard him as holding the first-named license. Surely if one should ask for and receive a written authorization from the court to sell cider and should pay the license fee prescribed for a Brooks retail license, it would not be contended that he had been granted the latter license. We agree with counsel for defendant that if this court had granted the Brooks license, it could not have imposed restrictions and conditions of its own making, could not have denied the right given by it, to sell spirituous liquors. We also acquiesce in the proposition that if it appeared that the court had intended to grant the Brooks license, the fact that its decree or order, following the petition as it does, omits the word, “spirituous,” would not prejudice the defendant, for the extent of privilege granted would be controlled by the law under which the decree was made, and with which it would, in such case, have been intended to accord. This is foreign to the case being considered, however, for there was no appearance even, of a purpose to grant the defendant the Brooks license. The application on which his present license issued, states on the outside or back, 'that it is a petition for an eating-house license, and inside reads that it is a petition for a license to sell vinous, malt and brewed liquors, and it is such a license, and none other, that the court undertook to grant. It may have granted no license, but it certainly did not grant, and was not understood by the defendant to have granted, the Brooks license authorizing the sale of spirituous liquors. We think that the propositions of defendant’s counsel to the effect that the defendant was in any sense coerced into accepting an emasculated Brooks license, and has been imposed upon by being required to pay the license fee therefor, are not sound. As already stated, his petition for the Brooks license was positively and finally refused, and that application was fully determined and at an end, and he has never paid any license fee in that connection. On his petition for what is practically the old eating-house license, favorable action was taken, and voluntarily paid, as he and all other eating-hóuse licensees have paid since Judge Futhey began issuing this license, after the passage of the act of 1887, the same fee as is paid by those who receive the Brooks license. We must also except to the proposition that if there is no authority in law for issuing such a license, a wrong has been done the defendant in granting it, and permitting him to pay a license fee therefor. The fallacy of this contention becomes manifest when it is appreciated that no trouble has come to the defendant by reason of any weakness or defect in his license, that on the other hand, his calamity is referable solely to his' willful deliberate violation of the express terms of his license, to his sale of spirituous liquor, whisky, which it did not purport to authorize. We understand that there are at least two districts in the state, that composed of Montgomery county being one, in which, as here, what is substantially the old eating-house license is still issued.
    April 18, 1910:
    The rules for new trial and in arrest of judgment are dismissed.

      Error assigned among others was in refusing to arrest the judgment.

      A. M. Holding, for appellant,
    cited: Mercersburg Liquor Licenses, 5 Pa. Dist. Rep. 171; Franklin County Liquor Licenses, 12 Pa. Dist. Rep. 212; Jefferson County Licenses, 15 Pa. Dist. Rep. 563; Donoghue’s License, 5 Pa. Superior Ct. 1; In re Breslin, 45 Hun (N. Y.), 210.

      Robert S. Gawthrop, district attorney, for appellee,
    cited: Com. v. Hayes, 149 Mass. 32 (20 N. E. Repr. 456); Com. v. McCormick, 150 Mass. 270 (22 N. E. Repr. 911).
   Opinion by

Beaver, J.,

The appellant states the question involved after this fashion: “Has the Court of Quarter Sessions power to grant a retail liquor license and limit the license to the sale of vinous, malt and brewed liquors? ” If we answer this question in the affirmative, the appellant got precisely what he asked for and was properly convicted for the sale of spirituous liquors for which he had no license. If we answer it in the negative, he had no license of any kind and was, therefore, even more properly, if such a thing be possible, convicted.

The defendant presented his petition to the court of quarter sessions of Chester county, praying for a license “for one year from April 1, 1909, for the sale of vinous, malt and brewed liquors, by retail, in quantities not exceeding one quart, at the place above described,” which was, as stated in the petition, “Spence’s Restaurant.” The petition was in the usual printed form. Wherever the word spirituous occurred, however, it was stricken out, as it was in the bond which accompanied the petition. The decree upon the petition was: “Now March 1, 1909, after hearing, the license as prayed for is granted.” The defendant was indicted for selling and causing to be sold “certain vinous, spirituous, malt and brewed liquors, and an admixture thereof, without having first obtained license, agreeably to law, for that purpose, contrary to the form of the act,” etc.

The testimony taken at the trial is not printed in the appellant’s paper-book. We learn from his history of the case, however, that “it was shown upon the trial that the appellant, pursuant to his license, had sold ‘Bitters,’ which was to some degree a spirituous liquor,” and in the paper-book of the appellee it is said that the “Bitters” referred to' was a low grade of whiskey sold over his bar.

As we understand the facts of the case, the appellant, although charged in the indictment with selling certain vinous, spirituous, malt and brewed liquors, the testimony of the commonwealth relating to spirituous liquors only, was convicted solely of that offense.

The appellant, in his argument, says: “An examination of the petition and of the court’s order thereon shows, however, that the court undertook to limit or restrict the license to the sale of vinous, malt and brewed liquors,” and argues the question as growing out of this statement: “Not the license but this restriction, it is respectfully submitted, was void, and the licensee had the right to sell spirituous as well as malt and brewed liquors.” The appellant here attempts to put the court granting the license in a false position. The court made no restriction whatever. It granted a license “as prayed for.” Whether the court had a right to grant such a license under the authority of the Brooks law of 1887, under the principle that the greater includes the less, is one which we do not now consider, and whether or not the license so granted was void is also outside of this case, as we regard it. This was not a case of restriction imposed by judicial legislation. If restriction was valid, it was only imposed upon the appellant by himself, in which the court acquiesced. There was no decree as to the amount of the license fee to be paid. That was an entirely separate and distinct transaction between the appellant and the county treasurer. What that license fee was we are not informed, because, as previously stated, the testimony is not printed. That, however, was a question with which the court had nothing to do. The alleged hardship of which the appellant complains is, therefore, not in the case, so far as the court is concerned, and it is idle for him to say that, “It is the height of injustice to impose upon him (the appellant) a large fine, sentence him to prison, and take away his license, and thus destroy the business which he has been building up for some forty years.” This is not only unfair, but it is not correct. The business which he has built up, as appears by his own showing, was under just such a license as the court granted.

The court, in dismissing the rule for a new trial and the motion in arrest of judgment, has filed an opinion covering the facts of the case which we can gather from no other source, as the paper-book is made up, and it will, therefore, be well to print that opinion in connection with the report of the case.

Judgment affirmed and record remitted to the court below to the end that the sentence of the court may be fully carried into effect.


author: Henderson, J.,

text:
    Merrick, Appellant, v. Merrick.

      Divorce — Desertion—Indignities to person — Question for jury.

    1. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert willfully and maliciously persisted in without cause for two years.
    2. Where a husband withdraws from the presence and society of his wife, introduces into his household his father and mother, takes control of the house from the wife, forces her to live in separate apartments not properly heated, and so conducts himself as to lead to the inference that he was making life uncomfortable for her in order that she might be induced to leave, and the wife leaves the house under such circumstances as to show that she had no intention of deserting her husband, the question as to whether there was a desertion by the wife is a question for the jury in a divorce proceeding instituted by the husband, and a verdict and judgment for the wife in such proceeding will not be reversed.
    May 12, 1910:
    Argued Nov. 17, 1909.
    Appeal, No. 213, Oct. T., 1909, by plaintiff, from judgment of C. P. Chester Co., Jan. T., 1908, No. 57, on verdict for defendant in case of Richard Merrick, Jr., v. Lydia E. Merrick.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Libel for divorce. Before Hemphill, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      Thomas W. Pierce, with him C. Wesley Talbot, for appellant,
    cited: Eshbach v. Eshbach, 23 Pa. 343; Russell v. Russell, 37 Pa. Superior Ct. 348; Edmond’s App., 57 Pa. 232; Carey v. Carey, 25 Pa. Superior Ct. 223; Hardie v. Hardie, 162 Pa. 227.

      John J. Gheen and Alfred P. Reid, for appellee.
   Opinion by

Henderson, J.,

The cause of action set forth in the libel was willful and malicious desertion. After the answer of the respondent was filed denying the fact alleged the complainant demanded a jury trial and from the judgment entered on the verdict this appeal is taken. We are now asked to declare that the evidence was insufficient to support the verdict and that the jury should have been instructed to find for the libelant. All of the testimony for the respondent is therefore to be taken as true and she is also entitled to the benefit of all the inferences which the jury might legitimately draw therefrom. This evidence shows that the parties were married in March, 1889, and immediately thereafter commenced housekeeping on a farm which had theretofore been occupied by the libelant’s father. After a few months there, the complainant commenced to treat his wife with great indifference, habitually absented himself from her company and when she came into his presence he avoided her and in the course of time told her that he never would recognize her as his wife. For nearly a year he would not occupy the same room with her, nor pay any attention to her; as the respondent expressed it, “He utterly ignored me.” He remained away from her by day and by night, part of the time engaged in his business as a drover, but at no time explaining to her where he was or what he was doing. This condition of things continued until April 1, 1890, when the father and mother of the complainant were brought .to the farm by the latter and put in possession of the house, the mother assuming the control and management of the domestic establishment, and the respondent being relegated to the use of two rooms on the second floor of the house. This arrangement was made against the protest of the wife and without her knowledge that it was actually to be done until the father-in-law and mother-in-law arrived on the premises. The respondent was thus put out of control of her own home and out of the use of the principal part of it and subjected to the management of the mother of the complainant and her servant. Thus matters remained during the summer and fall, the respondent being subjected to numerous annoyances and vexations and much mental distress because of the situation in which she was placed. As winter approached no arrangement was made for fire in the rooms which she occupied, the only provision for heat being a pipe in one room from a stove in a room below, but this was not sufficient for the inclement weather of winter and when the. respondent attempted to increase the heat in the stove her efforts were thwarted by the interference of the servant and she was told by her mother-in-law that the servant was in charge of that department. The rooms became so cold in December that she conld not occupy them with comfort or safety and she became so worried and prostrated by her situation that she feared she might become helpless and incapable of caring for herself. She then went to her husband and told him that she could not put up with this any longer and asked him to furnish her a separate home, to which he replied that he never would; that he would not furnish any other home than the one she had there. Thereupon, she told him that she would give him until April 1 to provide her a home, and that if he did not do it then she would have to do something else. After this conversation the respondent took her clothing and went to her father’s house intending to give her husband an opportunity to provide a place for her. Her goods other than her wearing apparel she left at the house. The libelant did not communicate with her afterward and some time after April 1, she instituted a proceeding under the act of 1867, to compel her husband to support her, in which proceeding an order was made by the court of quarter sessions directing the husband to pay $2.50 per week to his wife. At that hearing the respondent offered to live with her husband if he would furnish a home for her apart from his father and mother. This, the libelant refused to do. No question is raised as to the ability of the appellant to provide a comfortable and suitable home for himself and his wife. Some time in July after the proceeding in court the respondent and her brother went to the libelant’s house and got her goods. This was done pursuant to an arrangement and agreement between the counsel of the respective parties. From that time on they continued to live apart and no communication was had by the libelant with his wife up to the time the libel was filed. The learned trial judge instructed the jury to find from the evidence whether the respondent was guilty of willful and malicious desertion and absence from the habitation of her husband without reasonable cause, and we are not able to say that this- was erroneous. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert, willfully and maliciously persisted in without cause for two years. This intention becomes apparent when without cause or consent either party withdraws from the residence of the other. Whether there was consent or absence of reasonable cause is a question of fact properly disposed of by the jury where there is evidence bearing on the question. It was said in Richards v. Richards, 37 Pa. 225, “We can exercise no sound judgment without studying the acts complained of in their connection with the character of the parties and for this we want the common sense of the jury rather than fixed legal rules.” The allegation of the respondent was that she was subjected to such indignities as rendered her condition intolerable and her life burdensome. The acts or course of conduct which will amount to such indignities are not defined, and it was intimated in May v. May, 62 Pa. 206, that they are incapable of specification or exact definition. They were referred to in Eshbach v. Eshbach, 23 Pa. 343, as possible in numberless forms. The judge and jury who saw and heard the parties and their witnesses were satisfied that the respondent was not guilty of willful and malicious desertion, and we are hot willing to say that the evidence did not justify the verdict. The testimony tends strongly to show that Mrs. Merrick did not leave the house with the intention of deserting her husband. He seems not to have objected to her going, nor to have desired her to remain or come back, and the jury might have concluded that there was a separation merely and not a desertion. The evidence for the respondent would lead the jury to believe that the libelant was desirous of living apart from his wife and that he did not wish her presence or her society and that he was making it uncomfortable for her in order that she might be induced to leave. His whole conduct has that complexion when viewed in the light of the respondent’s testimony which as has been observed the jury credited. Separation is not desertion, and if the respondent went to her father’s home with the approval of her husband who had turned against her and determined never to regard her as his wife again, she cannot be properly charged with willful and malicious desertion: Ingersoll v. Ingersoll, 49 Pa. 249; Middleton v. Middleton, 187 Pa. 612. When we consider the charge of the court and the testimony presented we think the learned trial judge was not in error in affirming the defendant’s third point. The transaction to which it referred occurred some months after the defendant left the plaintiff’s house and was proved as one of the facts tending to show the intention of the complainant to bring about a separation. He did not speak to his wife at the time she went away although he was then at the house, nor make any objection to her departure nor ever communicate with her in any way thereafter, and his action in refusing to provide any other conditions of living than those which his wife had at the time she left, was evidence of a determined purpose to get rid of her or to provoke a desertion on her part. Under such circumstances the action of the wife declining to return until a reasonably suitable place was provided for her, did not of itself amount to willful and malicious desertion but a separation rather encouraged by the plaintiff.

The assignments are overruled and the judgment affirmed.

Rice, P. J., dissented.


text:
    Hoffman v. Susquehanna River & Western Railroad Company, Appellant.

      Railroads — Eminent domain — Widening Act of March 17, 1869, P. L. 12 — Straightening a stream.

    1. A railroad company which has exhausted its power of appropriating land for its right of way under the Act of February 19, 1849, P. L. 79, has no authority under the widening Act of March 17, 1869, P. L. 12, to condemn land near its right of way for the purpose of straightening a stream and doing away with two bridges along its right of way.
    2. The widening contemplated by the act of 1869, has reference to the right of way as the physical foundation of the road and the tracks, sidings, water tanks, stations and other facilities essential to and connected immediately with the maintenance of the road. A widening for any other purpose is not authorized. The statute relating to the improvement of aqueducts does not apply to railroads.
    Argued March 15, 1910.
    Appeal, No. 26, March T., 1910, by defendants, from decree of C. P. Perry Co., Jan. T., 1910, No. 11, on bill in equity in case of Jacob S. Hoffman v. Susquehanna River & Western Railroad Company and James Bell et al.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Shull, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding an injunction.

      W. H. Sponsler, with him James M. Barnett, for appellants.
    The injunction should not have been granted: Bigler v. Canal Co., 177 Pa. 28; Anspach v. R. R. Co., 5 Phila. 491; Lodge v. R. R. Co., 8 Phila. 345; Gas & Water Co. v. R. R. Co., 225 Pa. 152; Western N. Y. & P. Ry. Co. v. B. R. & P. Ry. Co., 193 Pa. 127; Brocket v. R. R. Co., 14 Pa. 241.

      W. N. Seibert, of Seibert & Seibert, for appellee.
    The injunction was proper: Snee v. R. R. Co., 210 Pa. 480; Wilson v. R. R. Co., 222 Pa. 541; Dryden v. Ry. Co., 208 Pa. 316; Bierly v. P. & E. R. R. Co., 225 Pa. 182; Fick v. R. R. Co., 157 Pa. 622; Omaha, etc., R. R. Co. v. Brown, 14 Neb. 170 (15 N. W. Repr. 321).
    May 12, 1910:
   Opinion by

Henderson, J.,

The appellant operates a railroad from Duncannon to Bloomfield in Perry county. The road was constructed about twenty years ago and has been in operation for that period. The track crosses the farm of the appellee and at two points thereon about 1,500 feet apart bridges span the Little Juniata creek which describes a bend through the plaintiff’s land. At a meeting of the board of directors of the defendant company held November 20, 1909, a resolution was adopted reciting that it would be for the benefit of the company that its lines at Hoffman and Roddy stations be improved by the changing of the channel or course of the Little Juniata creek to the northward side of the railroad track thus avoiding the ob-' struction of floods and ice at said point and condemning a strip of land through the farm of the plaintiff seventy feet wide .along the north line of the defendant’s right of way from the upper to the lower bridge. Having failed to agree with the owner for compensation proper for the damage likely to be caused by the taking of the land the defendant presented its petition to the court of common pleas for the appointment of viewers to assess the damages, upon which petition viewers were appointed. The plaintiff thereupon filed a bill to enjoin the defendant from taking his land. By the original definite location'of the right of way the power of appropriation under the Act of February 19, 1849, P. L. 79, was exhausted. The authority for the defendant’s proceeding must be found, therefore, in the Act of March 17, 1869, P. L. 12, if it exists at all. This act is to be construed in accordance with the well-established doctrine that the power of eminent domain is not to be extended beyond that which is given in plain words or by implication as a matter óf necessity. Power which is not clearly granted cannot be exercised because not having been so granted it is deemed to have been intentionally withheld: Packer v. Sunbury & Erie Railroad Co., 19 Pa. 211; Penna. R. R. Co.’s App., 93 Pa. 150; Woods v. Greensboro Nat. Gas Co., 204 Pa. 606; Dwarris on Stat. 750; Lewis on Eminent Domain, sec. 254. Unless, therefore, some one of the provisions of the act of 1869, plainly covers the appellant’s case it is without right in the present undertaking. That act does not confer on railroad companies unlimited power to condemn land whenever the board of directors deems such action advantageous to the company. Such acquisition of land can only be made when one (or both) of two objects is in view: (a) the better securing of the safety of persons and property; and (b) increasing the facilities and capacity for the transportation of traffic. To promote these objects the company may appropriate land for certain purposes. These are to straighten, widen, deepen, enlarge and otherwise improve the whole or any portions of their lines of railroads and the bridges, crossings, sidings, piers and structures thereof. And it is under the authority to widen that the appellant claims the right to do the thing proposed; The position taken by the company is that it has direct authority to widen its right of way for the sole and express purpose of turning the water of the creek over the strip which it proposes to take.- To give to the word, "widen,” the scope contended for would, we think, expand its meaning beyond the legislative intention in its use. The widening contemplated has reference to the right of way as the physical foundation of the road and the tracks, sidings, water tanks, stations and other facilities essential to and connected immediately with the maintenance of the road. It is the "lines of railroads” which are to be improved; that is, the railroad structure and equipment. A widening for any other purpose is not authorized. The use of the terms "straighten, widen, deepen, enlarge,” shows an intention, to limit the right of appropriation to cases of the enlargement of the right of way for the extension of the roadbed. It is not pretended that there is any purpose to lay additional tracks or to provide for any increase of business, or that any expansion of business demands more room in order that the company may efficiently perform the duties imposed upon it by its charter. Substantially the same conditions exist now which were present when the road was opened and no changes in the appliances and agencies for the conduct of the traffic are contemplated, if we except the possibility, perhaps the probability, that the two bridges will be dispensed with or reduced in length. The proposition is to take a stream from its natural course and dig a new channel for it through the farm of the appellee. So far as the plan is concerned it does not appear to be necessary that such channel be located immediately north of the present right of way and the improvement to the road would be the same whether the new channel be near to or remote from the appellant’s property. Considered by itself, therefore, it is no part of the physical property of the company nor in any proper sense a part of its “lines.” The rule of construction of statutes giving privileges to corporations forbids that so extensive a definition as that contended for by the appellant be given to the term “widen” as used in the statute. The argument that the action of the appellant can be sustained under the provision of the statute which provides for the improvement of aqueducts is not convincing. The act of 1869, applied to railroad, canal and slack water navigation companies and the words employed were necessarily intended to cover the operations of the three classes of corporations. It is manifest that in the use of the word “aqueduct” reference was had to canal or slack water navigation companies and not to railroad companies. Every pipe laid from a spring to a water tank conducts water and is, therefore, in a sense an aqueduct, but it could hardly be contended that the legislature had such a device in contemplation in enacting the statute. No more is it intended to include an artificial channel of a natural water course constructed to take the place of an abandoned part of the channel. The power of eminent domain is never sustained by &■ forced construction. The only other portion of the statute to which an appeal could be made is that part which authorizes any railroad company to “otherwise improve” its lines of railroad. These words the learned counsel for the appellant concede limit the power of the company to like or consistent improvements and if the specific improvements for which land may be condemned do not cover the defendant’s case the latter provision will not aid it. It does not follow because the change which the company proposes to make would relieve it from expense or inconvenience in operating its road or tend to increase its. facilities for business that such change can be called an improvement of the line within the meaning of the statute. Many collateral adjuncts of a railroad enterprise have to some degree this effect. But the power to condemn for such purposes would practically subject the property of individuals along the line of the road to the will of the directors. If then there is no statutory right the defendant is not entitled to proceed, for there is no implication in favor of the right of eminent domain unless it arises from a necessity so absolute that without it the grant itself will be defeated. It must, also, be a necessity that arises from the very nature of things, over which the corporation has no control; it must not be a necessity created by the company itself, for its own convenience or for the sake of economy: Penna. R. R. Co.’s App., 93 Pa. 150; Snee v. R. R. Co., 210 Pa. 480; Wilson v. Pittsburg, etc., R. R. Co., 222 Pa. 541. The court found on abundant evidence that it was entirely feasible to so construct or reconstruct bridges at the sites where the present bridges are as to secure the safety of persons and property and afford equal facilities for the transportation of traffic, and it cannot be seriously contended that there is any imperious necessity demanding the improvement alleged: Snee v. R. R. Co., 210 Pa. 480, referred to in the opinion of the court, arose out of the original location of a railroad and involved the powers of the directors under the Act of February 19, 1849, P. L. 79. The attempt there was to change the course of the stream to avoid the necessity of constructing two bridges, but the statutory power Was denied and it was also held that the fact that the construction of the embankments over the stream was desired by railroad engineers in preference to bridges was not a controlling consideration although such construction might be desirable. The case under consideration arises under the act of 1869, and the case cited is not a controlling authority, but the discussion of the question in the opinion of the court therein is pertinent and instructive. The same case also supports the proposition that a railroad company has not generally the right to divert the natural flow of' waters of a stream but that this may be done if it be found impracticable to carry out the purpose of the corporation without changing the channel of the stream in constructing the road. To the same effect are Gould on Waters, p. 522, and Lewis on Eminent Domain, sec. 571. It is urged, however, that the power of the directors is conclusive and this is undoubtedly true when they act within the scope of their authority. A large discretion is committed to them in adopting the line of the road and in the method of its construction, and with the exercise of this discretion the law will not interfere, but it is always within the power of the court to interpret the statute and to determine what the powers of the directors are: Wilson v. Pittsburg, etc., R. R. Co., 222 Pa. 541; O’Leary v. Ry. Co., 210 Pa. 522. The appellant has not persuaded us that the court was in error in entering the decree appealed from. In view of the conclusions herein reached, it is not necessary to consider the question whether the defendant company is entitled to proceed without having first filed a bond to secure the owner of the land.

The assignments of error are overruled and the decree is affirmed at the cost of the appellants.


text:
    Bailey v. Susquehanna River & Western Railroad Company, Appellant.
    May 12, 1910:
   Opinion by

Henderson, J.,

This case was argued with the case of Jacob S. Hoffman v. the same defendants and involves the same questions. An opinion has been this day filed affirming the decree of the court below in the last-named case and for the reasons given therein the assignments in this ease are overruled and the decree affirmed at the cost of the appellants.


text:
    Baker v. Susquehanna River & Western Railroad Company, Appellant.
    May 12, 1910:
   Opinion by

Henderson, J.,

This case was argued with the case of Jacob S. Hoffman v. the same defendants and involves the same questions. An opinion has been this day filed affirming the decree of the eourt below in the last-named case and for the reasons given therein the assignments in this case are overruled and the decree affirmed at the cost of the appellants.


text:
    Clement v. Adams Express Company, Appellant.

      Negligence — Animals—Dogs—Driving over dog.

    1. If a person driving a wagon in a reasonable and proper manner along a city street or a country road, is confronted by a dog, he is under no obligation to stop until the dog gets out of the way, or to get out of the vehicle and try to remove the dog from the street, or to drive out of the way to avoid the dog. In such a case the driver may take into consideration the alertness and agility of the dog and assume that it will get out of the way before the wagon reaches it. The mere fact that the dog is a small house dog, does not change the rule.
    2. Where a small Pomeranian dog runs in front of a team of horses, and barks, and is crushed under the wheels of the wagon drawn by the team, the owner of the team cannot be held liable for the loss of the dog, where there is no evidence to show willfulness on the part of the driver, or apparent inability of the dog to get out of the way of the wagon.
    Argued Oct. 15, 1909.
    Appeal, No. 88, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1907, No. 3,490, on verdict for plaintiff in case of Hayes A. Clement v. Adams Express Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for the killing of a dog. Before Carr, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $350. Defendant appealed.

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

      John Lewis Evans, with him Thomas DeWitt Cuyler, for appellant.
    The'■testimony presents no evidence of negligence on the defendant’s part or facts from which either the jury or court could infer negligence.
    The driver’s duty under the circumstances was in no degree altered if he heard the call to stop: Furness v. R. R. Co., 4 Pa. Dist. Rep. 784; Moore v. Electric Ry., etc., Co., 136 N. C. 554 (48 S. E. Repr. 822).
    The law will not allow damages for an injury caused concurrently by plaintiff’s own negligence and defendant’s negligence: Railroad Co. v. Skinner, 19 Pa. 298; Heil v. Glanding, 42 Pa. 493; Catawissa R. R. Co. v. Armstrong, 49 Pa. 186; Stiles v. Geesey, 71 Pa. 439; Edwards v. P. & R. R. R. Co., 148 Pa. 531; Harman v. Penna. Tract. Co., 200 Pa. 311.
    July 20, 1910:

      Lincoln L. Eyre, for appellee,
    cited as to the question of negligence: St. Louis, etc., Ry. Co. v. Hauks, 78 Texas,, 300 (14 S. W. Repr. 691); Marshall v. Street Ry. Co., 73 S. W. Repr. 63; Kansas City, etc., R. R. Co. v. Hawkins, 82 Miss. 209 (34 So. Repr. 323); Jones v. Illinois Central R. R. Co., 75 Miss. 970 (23 So. Repr. 358); Smith v. Ry. Co., 79 Minn. 254 (82 N. W. Repr. 577); Fowles v. Seaboard Air Line Ry. Co., 73 S. C. 306 (53 S. E. Repr. 534); Citizens’ Rapid Transit Co. v. Dew, 100 Tenn. 317 (45 S. W. Repr. 790); West Chicago Street R. R. Co. v. Klecka, 94 Ill. App. 346; Meisch v. Electric Ry. Co., 72 Hun, 604.
   Opinion by

Henderson, J.,

The plaintiff’s declaration charged the defendant’s servant with having carelessly and recklessly driven a horse with a wagon attached thereto toward and over a dog belonging to the plaintiff, on Sixteenth street in the city of Philadelphia. The carelessness and recklessness alleged in the evidence was that the driver neglected to stop his horse or turn out of his course to avoid the dog which was in the middle of the street along the line on which the horse was moving. The plaintiff’s evidence shows that the driver was proceeding moderately on an ascending grade; that the dog, which was a small Pomeranian, ran into the street about fifty feet in advance of the horse and was barking at the plaintiff’s wife who stood near the curb calling to him; that when the horse reached the place where the dog was it jumped and began to bark at the horse and that it was crushed under the wheels of the wagon. Mrs. Clement hallooed to the driver to stop in a tone of voice which she says he ought to have heard, but she did not know whether he heard her or not. She said he could have stopped or could have turned out from the car tracks and thereby freed the dog from danger. It is not shown that the driver heard Mrs. Clement or observed the dog, nor is there any pretense that he was not driving in a lawful manner and at a moderate speed. The place where the dog was standing was not a public crossing and the driver was not put on notice of a situation requiring special care. He was not bound to assume that a dog might be in his way and, therefore, be alert to avoid injury. If, however, the inference may be legitimately drawn from the evidence that the driver heard the outcry of Mrs. Clement when the wagon was about fifty feet from the dog it does not follow that he was guilty of negligence if he did not stop or turn out of the way. Taking into-consideration the alertness, agility and well-known ability of a dog to avoid danger and take care of itself, the driver might reasonably assume that the dog would get out of the way before the wagon reached it. We do not consider it to be the duty of one driving at a moderate pace along a city street or a country road to stop or drive out of the way when confronted by a dog. It is a matter of very common observation by those accustomed to driving horses that dogs run into the street and bark at passing teams and often run in front of the horses for a considerable distance: To drive to the right or left serves no useful purpose as the dog can change his position more quickly than can the horse, and there is no reasonable ground for believing that the dog could thereby be avoided. Nor is it obligatory on the driver to stop his horse when a dog remains in the way, barking at it. The case might be different with a cow or other animal having less alertness of movement and less ability to escape danger, but the sagacity, watchfulness and fleetness of a dog enable it to take care of itself against imminent peril-. The driver of a slowly moving horse might well assume that a dog which noticed the horse would get out of the way before the wagon ran over him. Our attention has not been called to any action for negligence in killing a dog by driving over it with a wagon. Cases have arisen in other states, however, against steam and traction companies for the negligent killing of dogs by locomotives and cars. In each instance where an action has been sustained, so far as we have discovered, the case turned on the allegation of excessive speed, or willfulness, or inability of the dog to escape the danger. Thus, in St. Louis, etc., Ry. Co. v. Hauks, 78 Tex. 300, there was evidence that the engineer-intended to kill the dog and that it was run down in a cattle guard while escaping from the train. In Meisch v. Rochester Elec. Ry. Co., 72 Hun, 604, the dog was running along the street car track which was.hedged in between two banks of snow and the case turned on the speed of the car. In Fink v. Evans, 95 Tenn. 413, it was held that dogs are within the contemplation of the statute of the state requiring the whistle to be sounded and other precautions to be taken when any person, animal or other obstruction appears on the track, and the failure to give warning was, therefore, evidence of negligence. In Smith v. Ry. Co., 79 Minn. 254, the car was running at an unlawful rate of speed and the case was given to the jury on the question whether the dog could have escaped if the car had been run at a proper rate of speed. In Harper v. Ry. Co., 6 L. R. A. (N. S.) 911, two dogs were fighting on the track. The case was submitted to the jury on the proposition that it was the duty of the motorman to give such signals as reasonable prudence would dictate under the circumstances, and to regulate the speed of the car. The case was put on the ground that the dog was engaged in fighting, and therefore did not notice the approaching car, but the same case reaffirms the doctrine of Smith v. Ry. Co., 79 Minn. 254, that a street car company is not required to stop its cars when running at a legal or reasonable rate of speed to avoid collisions with dogs; that ordinarily dogs may be presumed to take care of themselves and the motorman may act on such presumption. In harmony with the latter ruling is Moore v. Charlotte Elec. Ry. etc., Co., 136 N. C. 554, in which it was held that a dog is not entitled to the same consideration at the hands of an engineer in charge of a locomotive that

cattle or live stock are; that the presumption is that the dog has the instinct and ability to get out of the way of danger and will do so unless its freedom of action is interfered with by other circumstances at the time and place. This was also the conclusion of the court in Jones v. Bond, 40 Fed. Repr. 281; Fowles v. Seaboard Air Line Ry. Co., 73 S. C. 306; Wilson v. Wilmington, etc., R. R. Co., 10 Rich. L. 52. In Dettmers v. Brooklyn Heights R. R. Co., 48 N. Y. Supp. 23, the court held that the fact that a trolley car was being run at an unusual rate of speed will not of itself show that the killing of a dog on the street was negligent. And in Harper v. Ry. Co., 6 L. R. A. (N. S.) 911, the court after referring to Mooers v. Northern P. Ry. Co., 69 Minn. 90, which was a case of injury to horses on the track, said: “We apprehend that the same rule should not be applied in the case of dogs, owing to their superior intelligence, agility, and instinctive ability to get out of danger. Consequently persons in charge of street cars should not be required to slow down merely because dogs may be running in the vicinity of, along, or across the tracks. Under such circumstances motormen may well assume that dogs will get out of the way.” The reasoning of these cases we consider applicable to the plaintiff’s case. Without evidence tending to show willfulness on the part of the defendant’s driver or apparent inability of the dog to get out of the way of the wagon the charge of negligence cannot be sustained. It is a very familiar doctrine that negligence consists in the absence of that ordinary care which a party ought to observe under the particular circumstances in which he is placed; and the' degree of care is such as is exercised by men of reasonable and ordinary prudence under similar circumstances, and it is certainly not the action of a man of this class when a dog runs into the street in front of a horse which he is driving in a proper manner to stop until the dog gets out of the way or to get out of his vehicle and try to remove the dog from the street or to drive out of the way to avoid the dog. Drivers presume that dogs in such sitúations will take care of themselves, and this presumption is based on observation and the well-known disposition of these animals. If the plaintiff’s dog was less able to take care of himself than dogs ordinarily are, that was probably the consequence of the manner in which he had been reared and cared for. He was not accustomed to the streets and to the conditions there to be met. But the driver of the wagon had no notice of that nor any reason, from anything that appears in the case, to believe that this dog would not obey the instincts exhibited by other dogs in like situations. We are unable to view the case in a light which would sustain the judgment.

It is therefore reversed.

Rice, P. J., and Porter, J., dissented.