text:
    Cochranton Borough v. Cochranton Telephone Company, Appellant.

      Telephone company — Boroughs—License tax contract — Corporations.
    1. Where an individual is granted the privilege of using the streets of a borough for the construction of a telephone line on condition that he complies with the terms of an earlier general ordinance imposing an annual license fee of one-half dollar on each pole, and the grantee accepts such privilege, he is bound to pay the license tax, and if he transfers the line to a corporation, the latter will be bound to pay the tax, although the grant to the original grantee was not to him, his successors or assigns.
    2. In an action to recover the license tax, the corporation can raise no questioij as to the reasonableness of the fee, nor is it entitled to a hearing as provided' by the Act of April 17, 1905, P. L. 183, inasmuch as it is bound by its contract to pay the amount prescribed by the general ordinance.
    Argued April 13, 1909.
    Appeal, No. 165, April T., 1909, by-defendant, from order of C. P. Crawford Co., May T.,. 1907, No. Ill, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Cochranton Borough v. Cochranton Telephone Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from justice of the peace in an action to recover license fees on telephone poles.
    Bouton, P. J., filed the following opinion:
    From the plaintiff’s declaration it appears that on May 8, 1900, the borough of Cochranton passed an ordinance entitled “A general ordinance relating to the entry upon, over or under or the use or occupation of any streets, lane or alley or any part thereof, for the purpose of constructing, maintaining or operating a system or systems of telephone or telegraph lines or electric light lines in the borough of Cochranton, and providing reasonable regulations pertaining to the public convenience and safety,” which said ordinance was numbered 42.

      The second section of the ordinance provides as follows:
    “After the passage and publication of this ordinance any corporation, company or firm entering the borough and establishing a line or wires, system or systems, of telephone, telegraph or electric lights therein shall annually pay into the borough treasury a license or tax of a half dollar on each pole so erected, kept and maintained therein, which tax shall be payable annually on or before the first day of August.”
    Section 8 of said ordinance provides as follows:
    “Any corporation, company or firm seeking to avail itself of the provisions of this ordinance shall before commencing to build its line, file with the secretary of the council its certificate of acceptance of the provisions and regulations of this ordinance.”
    Section 9 provides as follows:
    “No individual shall use any of the streets, lanes or alleys of the borough for the purpose of putting up any private telephone without first applying to council for such privilege, and if the council shall grant such privilege, the poles of such individual so far as they shall be planted in the streets, lanes or alleys of the borough shall be subject to the same rate of tax as provided in section 2, and the like penalties for noncompliance therewith.”
    It further appears that on or prior to April 1, 1901, David Berringer made application to the burgess of plaintiff borough for the right and privilege of building, setting up, maintaining and operating a telephone line or system in said borough, and signified his willingness to accept, abide and be governed by the provisions of said ordinance No. 42. •
    Whereupon on April 1, 1901, the said borough passed an ordinance No. 46, which is as follows:
    “Whereas, David Berringer has made application to the burgess of the borough of Cochranton for the light and privilege of building, setting up and maintaining and operating a telephone line or system in said borough of Cochranton and has signified his willingness to accept, abide by and be governed by the provisions of ordinance No. 42, and has agreed that when said borough shall adopt a fire alarm system to permit the fire alarm wires to run upon all his telephone poles without charge to the borough.
    “Therefore, be it ordained by the burgess and council of said borough, and it is hereby ordained by the authority of the same that on the filing with the secretary of the council of his acceptance of the provisions of said ordinance No. 42, and also the provisions concerning the fire alarm wires above mentioned, he shall have the right and may proceed at once to build, erect, set up and open said line for business.”
    On the same day David Berringer accepted in writing the terms and conditions imposed and agreed to abide by and be governed by the provisions of ordinance No. 42, which said written acceptance is as follows:
    “I, David Berringer above named, do hereby accept and agree to abide by and be governed by the provisions of the said ordinance No. 42, and also the provisions above specified in relation to the fire alarm telegraph.
    “Further, that I will within three months from the date of the above ordinance, commence the building of said line, and will have it open and ready for business within six months from said date, in default of .which all rights granted me by said ordinance or ordinances shall cease and be utterly null and void.
    “Witness my hand and seal at Cochranton this first day of April, 1901.
    “David Berringer [seal].”
    It further appears that immediately after accepting said provisions the said David Berringer began the erection and construction of a telephone line within said borough, and during the summer of 1901 erected sixty-nine poles in the streets, alleys and lanes of said borough, and completed and put into operation the said telephone line or system, and that said sixty-nine poles have been maintained in said streets, álleys and lanes continuously since their said erection.
    It further appears that the defendant company is a corporation chartered on or about February 8, 1905, for the purpose of constructing, maintaining and leasing telegraph lines for general telephone business. And that shortly after the chartering of the said defendant company it took over the said line constructed in the said borough of Cochranton by the said David Berringer and assumed the rights, duties, obligations and the privileges of the said David Berringer with reference thereto. And thereafter during the spring of 1906, erected forty-three additional poles in the streets, lanes and alleys of said borough for the purpose of its telephone system or plant, and has since continuously maintained the same.
    It further appears that for the years 1903, 1904, 1905 and 1906 that the defendant has failed, neglected and refused to pay the annual tax or license fee provided by said ordinance No. 42, which in all amounts to the sum of $187.08.
    These material allegations of the plaintiff’s declaration are nowhere denied in the affidavit of defense, but it alleges as grounds of defense:
    1. “That the agreement of David Berringer attached to plaintiff’s statement of claim was personal to said Berringer and not binding upon his successors or assigns, and therefore not binding upon the defendant company.”
    The second ground of defense is to the effect that there is no necessity for supervision by the borough council of defendant’s poles, for the reason that the low voltage sufficient for telephone purposes is not an element of danger to persons or property, and that there are no other electric wires, which by any possibility could come in contact with the wires of the defendant company.
    The third ground is that the defendant’s line is under the constant supervision of its employees, and that no complaint has ever been made to the company.
    The fourth allegation in the affidavit of defense is to the effect that the license fee imposed by the ordinance is not based upon the cost and expense to said borough for inspection, regulation and supervision, and that the annual charge of fifty cents per pole is more than ten times the amount that might have been or could possibly be incident or necessary to such inspection.

      And fifth, that the plaintiff has not incurred a single dollar of expense for the whole time for which suit is brought, by-reason of its inspection or supervision of the defendant’s lines or poles.
    The contention that the agreement of David Berringer was a personal one and not binding upon his successors, and hence not binding upon the company, is entirely without merit. When the defendant company took over the lines of Berringer “and assumed the rights, duties, obligations and privileges of the said Berringer with reference thereto” it took the place of Berringer and was as firmly bound by all of the provisions of the ordinance No. 42 as he was: School District of Freeport v. Enterprise Natural Gas Co., 18 Pa. Superior Ct. 73.
    The defendant seems to have mistaken the effect of these ordinances and acceptance by Berringer. Its defense would be good had permission been given Berringer or the defendant company to enter the streets for the purpose of erecting and maintaining its line and had the borough subsequently under its police power undertaken to impose a license fee or tax to reimburse it for the cost of inspection and supervision. But such is not the case here.
    When Berringer accepted the provisions of the ordinance he became bound thereby. It was optional with him to accept or refuse, and having accepted its provisions, gone on and erected his line, neither he nor those claiming under him, can now, after having enjoyed the benefits of the contract, be permitted to repudiate it, or heard-to question its validity.
    In our opinion the case is ruled by Allegheny City v. People’s Natural Gas & Pipeage Co., 172 Pa. 632, and School District of Freeport Borough v. Enterprise Natural Gas Co., 18 Pa. Superior Ct. 73, and further discussion is unnecessary.
    The affidavit of defense éntirely fails to deny any of the material allegations contained in the plaintiff’s declaration, and the defense sought to be interposed thereby is insufficient to prevent judgment.
    And now, to wit, December 30, 1908, the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense is made absolute, and upon the filing of the proper statement for liquidation the prothonotary will enter judgment in favor of the plaintiff and against the defendant for the amount of the plaintiff’s claim.

      Error assigned was the order of the court.

      C. W. Tyler, for appellant.
    Neither the ordinance No. 42, ordinance No. 46, nor in Berringer’s acceptance is there any provision which indicates that any successor or assign of his, whether “corporation, company or firm” or “individual” is to be bound by Berringer’s acceptance of ordinance No. 42: Postal Tel. Cable Co. v. New Hope, 192 U. S. 55.
    Appellant further contends that the Act of assembly approved April 17, 1905, P. L. 183, determines not only the method by which disputes shall be finally settled, but absolutely limits the recovery of license fees to such sum as will “ properly compensate the municipality for the necessary cost of the services performed or to be performed by it, for the inspection and regulation” of the poles and wires of the company: W. U. Tel. Co. v. Pendleton, 122 U. S. 347; Curwensville Borough v. Telep. Co., 16 Pa. Dist. Rep. 602; Penna. Telep. Co. v. South Beth. Borough, 16 Pa. Dist. Rep. 878; Telephone & Tel. Co.’s Petition, 15 Pa. Dist. Rep. 193; American Telegraph & Tel. Co. v. Reed, 15 Pa. Dist. Rep. 649; Penna. Postal Tel. Cable Co. v. Hollidaysburg Borough, 17 Pa. Dist. Rep. 298; Postal Tel. Cable Co.’s Petition, 17 Pa. Dist. Rep. 1085.
    Frank J. Thomas, of Thomas & Thomas, for appellee.
    The appellant, having taken its title under this grant, is bound by its terms, even though the same was not granted to the original grantee and his “assigns and successors” or even had the grant been given and accepted ultra vires: Midland Ry. Co. v. Fisher, 125 Ind. 19; Dayton, etc., R. R. Co. v. Lewton, 20 Ohio St. 410; Kelly v. Nypano R. R. Co., 200 Pa. 229; People ex rel. v. R. R. Co., 178 Ill. 594; Allegheny City v. Nat. Gas & Pipeage Co., 172 Pa. 632; Freeport Borough v. Gas Co., 18 Pa. Superior Ct. 73; Keystone State Telep. & Tel. Co. v. Ridley Park Borough, 28 Pa. Superior Ct. 635.

      October 11, 1909:
   Opinion by

Rice, P. J.,

The facts of this case as developed by the statement of claim and the affidavit of defense are very clearly and satisfactorily summarized in the opinion of the learned judge specially presiding in the common pleas and need not be recited by us. The first ground of defense set up is, that the agreement of David Berringer was personal to him and not binding upon his successors or assigns and therefore not binding upon the defendant company. This averment introduced into the case no fact which did not appear in the plaintiff’s statement of claim. It did not put in issue the averment of the statement that the defendant company took over the line constructed by Berringer, “and assumed the rights, duties, obligations and privileges of the said David Berringer with reference thereto.” In effect, the defendant’s averment is but the statement of a legal conclusion the correctness or incorrectness of which must be determined upon a consideration of the uncontradicted facts alleged in the plaintiff’s statement. That this conclusion is erroneous we think is free from doubt. The company does not deny that the rights it is exercising in the streets are those which it acquired as the successor of David Berringer, and by its action it asserts that its acquisition of them was valid as against the borough. But Berringer took and held these rights subject to certain obligations and duties of a continuing nature, and when the company took over these rights it admittedly assumed the duties and obligations as well. The true principle governing the case may be stated in the words of our Brother Porter in School District of Freeport Borough v. Enterprise Natural Gas Co., 18 Pa. Superior Ct. 73, substituting the name Berringer for Poterie. The right of Berringer being subject to the discharge of the duty, it passed to the defendant subject to the same burden, and so long as the defendant company continues to exercise the rights and enjoy the privileges conferred by the ordinance, it must perform the conditions to which the grant was made subject. It is true the grant in that case was to Poterie, his successors and assigns, but in view of the uncontroverted averment of the statement of claim above quoted the omission of those words in the grant to Berringer cannot prevent the application of the principle.

The second ground of defense is, in substance, that the license tax or fee imposed by sec. 2 of ordinance 42 is unreasonable in amount. The learned judge below properly held that this question was not open to investigation in the present case, because by the express acceptance of the provisions of the ordinance, which the borough required as a condition to the granting of its consent, a contract was created between the parties by which the right to occupy the streets was regulated. The principle has been recognized in numerous cases, and as applied to a variety of conditions imposed by municipalities. Of these cases the one most nearly like the present in its facts is Allegheny City v. People’s Natural Gas and Pipeage Co., 172 Pa. 632. There a general ordinance provided that any corporation availing itself of rights under it should pay to the city annually three cents for each foot of pipe laid by such corporation. The company by resolution accepted-the terms, conditions and provisions of the ordinance and agreed to comply therewith, “excepting so far as any of the terms of said ordinance may be held and adjudged illegal or unreasonable by the courts.” The company laid its pipes in the streets, but refused- to pay the annual charge, alleging that such a tax was illegal under the decision in Pittsburg’s Appeals, 115 Pa. 4, and 123 Pa. 374. An examination of the opinion of the Supreme Court shows that the court did not base its decision upon the power of the city to impose a tax eo nomine on the pipes of the company or upon the reasonableness of the ordinance as an exercise of the police power, but upon the agreement of the parties. After pointing out that the act of 1885 required the consent of councils, and that the ordinance made an acceptance of its provisions by the company a condition precedent to the opening of the streets, Justice Mitchell said: “The company cannot get consent by an apparent acceptance, and then repudiate part of the terms, under cover of a reservation. The acceptance which was required as a condition to the consent was an unqualified acceptance of 'all the terms, conditions, and provisions’ of the ordinance, and nothing less than that would satisfy the condition. The company filed a nominal and apparent acceptance with the comptroller, and having obtained and enjoyed the privileges cannot now escape the obligations. It did not obtain the consent of councils to its qualified acceptance, or get anything from them which can now be set up as a compromise, or waiver of the city’s claim under the ordinance. If the terms prescribed were not acceptable to the company, or not such as it conceived itself bound in law to submit to, it had its remedy in the courts by the assertion of its rights under the statute, but having got its privilege by apparently agreeing to the terms it cannot now refuse to perform them.” The facts of that case were more favorable to the company’s contention than the present, for there the company attempted to reserve the question of the reasonableness of the ordinance, whereas in this case no such attempt was made.

Complaint is made that the court did not give the defendant a hearing as required by the Act of April 17, 1905, P. L. 183,- or at least apply the principles of that legislation in the determination of the present controversy. The answer to this is twofold: first, this is not a proceeding under that act to determine the amount of annual license fee which should be paid to the municipality; secondly, the plaintiff’s right of recovery does not depend upon the reasonableness of the license fee but upon the agreement of the parties.

We conclude that the learned judge was clearly right in holding the affidavit of defense to be insufficient, and for the reasons suggested by him in connection with the foregoing the judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Withrow v. Walker, Appellant.

      Damages — Conversion—Trespass.
    1. In an action of trespass for conversion, the measure of damages is the value of the goods at the time of the conversion, to which the jury may add interest up to the date of the verdict, unless there are unusual circumstances attendant upon the conversion or detention, such as willful wrong, fraud or outrage, when the jury may give more.
    2. In such a case if the person guilty of the conversion, makes a misstatement to the owner of the goods, and the latter incurs expenses legal and otherwise, he may recover, but he must show to the jury what the expenses were; if he merely states a lump sum, a verdict for such amount will not be allowed to stand, but will be reduced to the value of the goods.
    Argued April 21, 1909.
    Appeal, No. 42, April T., 1909, by defendant, from judgment of C. P. Washington Co., Aug. T., 1907, No. 170, on verdict for plaintiff in case of C. M. Withrow v. Oliver Walker.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Trespass for the conversion of a mowing machine. Before Taylor, J.
    At the trial it appeared that the defendant when he moved on a farm as a tenant, found an old mowing machine on the premises which the plaintiff had previously purchased at an administrator’s sale, but had not removed. The price paid at the sale was $2.00. The defendant sold the machine to a junk dealer for $1.50.
    The court charged in part as follows:
    [Mr. Walker, the defendant, admitted on the witness stand that he did sell this machine and received for it $1.50 from a junk dealer who came that way. The measure of damages, under those circumstances, going to the plaintiff would be the fair market value or price of the machine that he so sold, and which was admittedly the property of the plaintiff and in which the defendant had no property, would be the fair market value or price of it at that time, and the evidence on that point is that he purchased it at public vendue or outcry, when he bought it a short time previous, and paid the sum of $2.00 for it.] [2]
    [Now, gentlemen of the jury, if this was all there was in this case we would say to you that you should find for the plaintiff in the sum of $2.00, or even if this was a slight mistake Mr. Walker had made in selling this machine, the property of another, we would say to you that no further element of damage ought to be considered by the jury, than the $2.00 which Mr. Withrow paid for the machine, if you should find that its fair value; but Mr. Withrow testifies that when he went to get the machine and found it gone from the place he was permitted to leave it, he tells you how he had difficulty, where he had left it when he bought it at the sale where it had been knocked down at public vendue; that he had some difficulty in finding Mr. Walker, the new tenant on this farm, and found him away over in a back field some place on the farm at work, and he testifies he inquired of Walker what had become of that machine of his that was there at the corncrib, and Withrow testifies that Walker, the defendant, began at once to deny that he knew anything about the machine, denied that he sold it, or knew where it was or knew anything about it, and that caused Withrow to search for it at the various junk yards along the river towns and put him to the trouble and expense of tracing where his machine had gone, and he says to the extent that he visited various junk yards and found it in the junk yard of this witness, the junk dealer who was upon the stand here. Withrow swears that he got out a search warrant first for this particular junk yard and when he found the machine he then caused the prosecution of this junk dealer for the larceny of his machine, and when the junk dealer was called to account for committing the offense of the larceny of this machine the junk dealer disclosed at once that he had bought that machine from Mr. Walker, the defendant here, and then for the first time Walker, the defendant, admitted he had sold it to this junk dealer.] [3]
    [Now, according to the testimony of Mr. Withrow, plaintiff, and his witnesses, he had been at Mr. Walker’s and asked about the machine and, as he testified before, he, Walker, denied that he knew anything about this old machine, when he did, and knew he had sold it to this junk dealer, and he now goes on the stand and swears that he sold that machine to this junk man and the manner in which he sold it. Now, if that is the case, if you believe the story of the plaintiff, and Mr, Walker as he now testifies, why didn’t Mr. Walker tell Mr. Withrow that when he first went there, is a pertinent inquiry for you. Well, he says he did; he says when Withrow came there asking for his machine he told him that he did not know whose the machine was but he sold it to the junk dealer. Now there is a direct contradiction between those two men, and if he did tell him that, what would have been the necessity for Withrow going and suing the junk' dealer, if Walker had told him, when he went up there inquiring about this machine of Withrow’s, that he had sold it, as Walker said he did — what would have been the necessity of Withrow going and making the information against the junk dealer?] [4]
    [So if Mr. Walker could in the first place have prevented any expenses that Mr. Withrow was necessarily put to in ferreting out where his machine was and who took it, why he ought to have done so, when he knew that he sold it, if he did. Under circumstances of that kind, if you find that to be a fact, you can readily see that a man who kept the truth back when there wasn’t any occasion for it, if he did, and put the other man to the expense of tracing his property that he had disposed of and pocketed the money, then we think a proper element of damage to enter into the case which is declared for fair market value or along with the price of the machine, would be what reasonable expense the owner of his property was put to in finding his machine, tracing it, as though it had been stolen from him, and the supposed thief.] [5]
    [Now, gentlemen of the jury, there is another machine fairly in this case, the one that was in the old barn, and the uncontradicted evidence is that at the time that Mr. Walker told Mr. Withrow to take that other machine that was in the old barn, that that was a machine that didn’t belong to Mr. Walker then; he admits that he didn’t own it at the time he told Withrow to take it for the one gone from the corncrib, but Withrow swears he had purchased it also from Duvall’s administrator; and no doubt if it had been anybody else than Withrow that did really own the machine there likely would have been a lawsuit over that machine also, because Withrow went and took that machine from the barn, he said he did, because it was his, he bought it from A1 Duvall, the man that was settling up Jake Duvall’s estate.] [6]
    [Now, gentlemen of the jury, the plaintiff here would be at least entitled to recover the fair market value or price of his machine at the corncrib under the undisputed testimony in the case. Now, whether you allow him any of the damages he has sued for here by way of expenses in tracing it depends on whether the defendant Walker acted frankly when Withrow went up there and asked where his machine was, whether he told where it was or whether he kept it secret and deceived him about his part in the transaction and put Withrow to the expense in finding out really where it was and finally tracing it back to Mr. Walker as the party having disposed of it. It is not testified here in dollars and cents the expense of tracing up the machine, but Withrow testifies to what he did and the places he had to visit and all the kind of trouble he had and the time it took, and it is for you to say, gentlemen of the jury, with these facts, if found by you to be facts, how much damages he ought to be allowed for that. The plaintiff swears that, in the whole, including the price of the machine and the other damages he specifies amount to $40.00. You could find in that amount or you could find in any less amount or in no damage; in case you find he had not reasonably incurred $38.00 worth of expense in finding, or any less amount as damages, what the evidence uncontradicted shows to have been the sale by Mr. Walker of Mr. Withrow’s mowing machine at the corncrib for $1.50. You are the judge of the credibility of the parties and their witnesses.] [7]
    Verdict and judgment for plaintiff for $16.58. Defendant appealed.

      Errors assigned amongst others were (3-7) above instructions, quoting them.

      Vernon Hazzard, with him George L. Schuyler, for appellant.

      October 11, 1909:

      James R. Burnside, for appellee.
   Opinion by

Rice, P. J.,

The first assignment alleges error in the exclusion of evidence. The evidence offered was relevant, but as no exception was taken to the ruling the assignment must be dismissed. Besides that, the evidence, though at first excluded, was subsequently admitted when its relevancy was shown. So no harm was done.

The remaining assignments relate to the charge of the court. The action was brought before a justice of the peace, and for a cause of action of which justices of the peace have jurisdiction, namely, the conversion of a personal chattel. The cause of action remained the same when the case was brought into the common pleas by appeal, and the measure of damages was that which applies in the common-law action of trover, now trespass. The general rule as to the measure of damages in such action is well settled to be the value of the goods at the time of the conversion, to which the jury may add interest up to the date of the verdict, unless there were unusual circumstances attendant upon the conversion or detention, such as willful wrong, fraud or outrage, when the jury may give more: Berry v. Vantries, 12 S. & R. 89; Taylor v. Morgan, 3 Watts, 333; Neiler v. Kelley, 69 Pa. 403; Learock v. Paxson, 208 Pa. 602. There may be other cases in which more may be given than the value with interest, arising out of the nature of the chattels, but this class of cases need not be considered here.

In one view of the case the measure of damages would have been the fair market value of the chattel alleged to have been converted by the- defendant, as the learned judge correctly instructed the jury at the outset of his charge upon that subject. But as this might have been more or less than the price ($2.00) the plaintiff paid for it, an instruction that if the jury found in his favor their verdict should be for the price he paid would have been erroneous. There is one part of a sentence in the charge, which, taken by itself, might bear that construction. This, however, was qualified in the same sentence by. adding, “if you should find that its fair value.” This qualification, taken in connection with the appropriate instruction at the outset, freed this part of the charge from reversible error.

But there is another view which the jury could take. There was evidence from which they could find that the plaintiff bought the chattel and left it temporarily on the premises with the consent of the vendor; that the defendant, a succeeding tenant, sold it to a junk dealer who removed it; that when the plaintiff came to the premises to take it away the defendant denied any knowledge of the chattel; that in course of the plaintiff’s efforts to ascertain its location he had a search warrant issued and thereby found the chattel on the premises of the junk dealer, who told him he had bought it from the defendant; and that they then went before the justice of the peace and the accused told him the tale, whereupon he was discharged. What other search the plaintiff made, the time occupied therein, and the specific amount of any expense he incurred is not shown by the testimony. The plaintiff, being asked what damages he sustained, contented himself with answering: “Well, the value of the machine and the cost I was put to in the other case and lost time, must have $40.00.” The learned judge properly told the jury that whether any damages should be allowed “by way of expense in tracing” the machine depended on their determination of the disputed question of fact whether the defendant denied all knowledge of the machine, and thus deceived the plaintiff, when the latter went for it. We cannot say that the court ought to have withdrawn from the jury’s consideration evidence as to the defendant’s deception, and to have charged them that in awarding damages they could not go beyond the value of the machine at the time of the conversion and interest on that sum to the date of verdict. But in instructing the jury that they might award the plaintiff the full amount of his claim upon the theory, as inferable from the context of the charge, that his testimony would warrant a finding that he had been, actually damaged to that amount, greater latitude was given than the evidence warranted. Not only was his testimony vague and indefinite as to “lost time” and how he lost it, but it was wholly insufficient to warrant a recovery for the cost he was put tQ in thq larceny case, and would be so even if he had shown the amount and nature of that expense. As it is impossible to determine from their verdict to what extent the jury awarded compensation on account of these two items of the plaintiff’s claim, particularly that for the cost he was put to in the larceny case, there is nothing to be done but to send the case back for a retrial, unless the plaintiff elects to remit from the judgment all beyond the value of the chattel, with interest from date of conversion.

The contentions that the charge as a whole gave undue prominence to the testimony of the plaintiff and was disparaging to the testimony of the defendant and defendant’s witnesses, and that as a whole it was biased, misleading, incomplete and unfair, are not sustained. But as the case may go back for retrial we deem it worth while to comment on that portion of the charge where the learned judge said: “ Now, if that is the case, if you believe the story of the plaintiff, and Mr. Walker as he now testifies, why didn’t Mr. Walker tell Mr. Withrow that when he first went there? is a pertinent inquiry for you. Well, he says he did; he says when Withrow came there asking for his machine he told him that he did not know whose the machine was but he sold it to the junk dealer. Now there is a direct contradiction between these two men, and if he did tell him that, what would have been the necessity for Withrow going and suing the junk dealer, if Walker had told him, when he went up there inquiring about this machine of Withrow’s, that he had sold it, as Walker said he did, — what would have been the necessity of Withrow going and making the information against the junk dealer?” The plain answer to this inquiry is that, so far as the evidence shows, there was no necessity, and we think the jury should have been so instructed if they found the fact to be as testified to by the defendant. But the remarks of the learned judge taken in connection with what immediately follows seem to suggest the thought that the action of the plaintiff in prosecuting the junk dealer tends to corroborate him and to lessen the probability of the truth of the defendant’s assertion. Perhaps this is not what was meant, but if it is, significance was given to the action of the plaintiff to which it was not entitled.

It is ordered that if the plaintiff, within thirty days from this date, shall file a paper in the office of the prothonotary of this court remitting $14.00 of the amount of the judgment the prothonotary shall enter on his record an order affirming the judgment as thus reduced; but if such paper shall not be filed he shall enter the order, “judgment reversed and venire facias de novo awarded.”


text:
    McArdle, Administrator, Appellant, v. Pittsburg Railways Company.

      Negligence — Death—Names of parties — Damages—Death of wife — Acts of April 15,1851, P. L. 669, and April 26,1855, P. L. 309.
    1. Where an action is brought by a husband to recover damages for the negligent killing of his wife, and the statement of claim does not set forth the names of the children, the statement may be amended by inserting such names, and this may be done even after the statute of limitations has run.
    2. Where a wife and mother is killed by the negligent act of another, the damages recovered for her death are distributable among the husband and the several children in such proportions as they would be entitled to take the personal property of the deceased in case of intestacy.
    3. If the husband dies pending the suit, his administrator may be substituted as plaintiff. In such a case the limit of recovery is not merely the loss of the decedent’s services “as wife and companion to her husband during the time that intervened between her death and that of her husband.”
    4. The measure of damages are in no way changed by the husband’s death. The loss of the husband and children was complete at the time suit was brought, and must be estimated as of that date.
    Argued April 28, 1909.
    Appeal, No. 128, April T., 1909, by plaintiffs, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1905, No. 974, on verdict for plaintiff in case of Philip McArdle, administrator of the estate of Michael McArdle, deceased, v. Pittsburg Railways Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and'Head, JJ.
    Reversed.

      Trespass to recover damages for death of plaintiff’s wife. Before Kennedy, P. J.
    The facts are stated in the opinion of the Superior Court.
    Plaintiff presented these points:
    1. The measure of damages in this case is precisely the same as if the plaintiff’s intestate were still alive and prosecuting the suit; in other words, the death of Michael McArdle since instituting this suit does not affect the question of damages. Answer: Refused. [1]
    2. The measure of damages for the loss of a wife in a suit by a husband, caused by the negligence of the defendant, is compensation for the loss of the wife’s services as a wife and companion; and in arriving at such compensation, the jury is to take into consideration the age, frugality, industry, usefulness and attention of the wife. Answer: This point is affirmed as a correct statement of the measure of damages, but in this, as I have told you, it is to be limited in time to compensation for the loss of services during the time intervening between the date of Mrs. McArdle’s death and the death of the husband himself, which was about a year and seven months after. [2]
    The court charged the jury in part as follows:
    [As to the measure of damages, if you find that the company was negligent, the measure of damages is the loss of the services of Mrs. McArdle to her husband, the loss of her services as wife or companion to her husband during the time that intervened between her death and that of her husband, which was upwards of a year and seven months, a year, seven months and eight days, to be accurate. It is only the loss of her services during that time, and in estimating or ascertaining what would be a fair compensation for the loss of those services, you must take into consideration the age of this woman, her habits of frugality, industry and her usefulness, those things are to be taken into consideration in estimating the loss of those services, compensation for which is to be given to her husband, if you find the plaintiff is entitled to recover. In using the words loss of services as wife or companion you are not to infer thereby that he would be entitled to any compensation for solace to his feelings, but it is a compensation for the loss of her services to him as his wife, or companion, taking into consideration what I told you. It is a loss in money for the services, and not, I repeat, as a compensation for any solace to his feelings, because for that he is not entitled to recover under the law. You will bear in mind that is limited to whatever you may consider the value of those services lost to him during this time, not for the balance of his life, taking into consideration that he might have lived a great number of years, but the actual loss to him during the time he lived after the death of his wife, which, as I have told you, was upwards of a year and seven months. In addition to that if he is entitled to recover at all, he is entitled to recover for the cash expenditures, and the only item testified to was the funeral expenses, $111. [3]
    October 11, 1909:
    Verdict and judgment for plaintiff for $500. Plaintiff appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      F. C. McGirr, of Marrón & McGirr, for appellant.
    The court’s instruction on the measure of damages was erroneous: Emery v. Philadelphia, 208 Pa. 492; Huntingdon & Broad Top R. R. etc., Co. v. Decker, 84 Pa. 419; Marsh v. Ry. Co., 204 Pa. 229; Haughey v. Pittsburg Ry. Co., 210 Pa. 367; Schnatz v. R. R. Co., 160 Pa. 602; Stahler v. Ry. Co., 199 Pa. 383; North Pennsylvania R. R. Co. v. Robinson, 44 Pa. 175; South Easton Borough v. Reinhart, 13 W. N. C. 389; Phila., Wilmington & Balt. R. R. Co. v. Conway, 112 Pa. 511; Del., Lack. & W. R. R. Co. v. Jones, 128 Pa. 308.

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellee,
    cited: Illinois Cent. R. R. Co. v. Crudup, 63 Miss. 291; Lewis v. Turnpike Co., 203 Pa. 511; Haughey v. Ry. Co., 210 Pa. 367; Allison v. Powers, 179 Pa. 531; Cregin v. R. R. Co., 83 N. Y. 595.
   Opinion by

Rice, P. J.,

This action was brought by Michael McArdle to recover damages for the death of his wife alleged to have been occasioned by the negligence of the defendant. Before trial Michael McArdle died and Philip McArdle, administrator of his estate, was substituted as plaintiff. It was proved on the trial that the family of Michael McArdle and his wife Mary, at the time of her death, consisted of themselves and five sons, three of whom were minors. No objection was raised on or before the trial to the omission to set forth the names of these children in the statement of claim, and after verdict, while a rule for new trial was pending, the statement was amended by leave of court, and without objection on the part of the defendant, by adding thereto the following: .“The parties entitled to recover in this case are: Estate of Michael McArdle, deceased; Philip McArdle, aged twenty-four years; John McArdle, aged twenty-two years; Michael F. McArdle, aged nineteen years; Joseph McArdle, aged thirteen years, and James McArdle, aged ten years, sons of Michael and Mary McArdle, deceased.”

The action in such a case is properly brought in the name of the surviving husband alone, but under the statute the entire sum recovered is not always to be retained by him in his own right, and in order that it may appear who are entitled to participate in the damages recovered it is required that the statement of claim shall state who they are. But as an amendment of the statement of claim in this particular does not change the cause of action, it may be made after the statute of limitations has ran, Huntingdon & Broad Top R. R., etc., Co. v. Decker, 84 Pa. 419, and even in the appellate court: Hughes v. Williams, 17 Pa. Superior Ct. 229. As the evidence given on the trial showed that there were children entitled to participate in the distribution of the sum to be recovered, and the sole question raised on the plaintiff's appeal is as to the measure of damages, the amendment made after verdict, setting forth “who are entitled in such action,” as required by the second section of the Act of April 26,1855, P. L. 309, may be regarded as if made on or before the trial.

The general question raised by the assignments of error is as to the effect upon the measure of damages of the death of the husband before trial. Whenever death has been occasioned by unlawful violence or negligence, the persons entitled to recover damages, if no action was brought by the person injured, are the husband, widow, children or parents of the deceased and no other relative; and the sum recovered goes to them in the proportion they would take his personal estate in case of intestacy and that without liability to creditors: Act of April 15, 1851,-sec. 19, P. L. 669; Act of April 26, 1855, sec. 1, P. L. 309. “If the deceased leaves a husband, he alone is clothed with the right of action; if the wife is the survivor, she is entitled to bring suit; if there be neither surviving husband ñor widow, the right of action is given to the children, and if there be neither husband, nor widow, nor children surviving, it is given to the parents of the deceased. But while the right of action is given according to the circumstances of each case to one of the four designated parties,' it is clear from the wording of the act that the entire sum recovered is not always to be retained by the plaintiff in his or her own right. It is to be distributed among the relatives named in the proportion they would be entitled to take the personal property of the deceased in case of intestacy:” Huntingdon & Broad Top R. R., etc., Co. v. Decker, 84 Pa. 419. Applying this clear and comprehensive construction of the statutes to the facts of the case before the court, Justice Sterret said: “In the present case the widow had the right of action, not exclusively for her own use, but for the joint use and benefit of herself and children.” This view of the nature of the recovery in an action brought by a surviving husband or wife, where the deceased left children, was taken in South Easton Borough v. Reinhart, 13 W. N. C. 389; Allison v. Powers, 179 Pa. 531; Haughey v. Pittsburg Railways Co., 210 Pa. 367, and has been recognized in practice- without being questioned in many other reported cases. True, it was held in Lehigh Iron Co. v, Rupp, 100 Pa. 95, that if the deceased left surviving him a widow but no children, and also parents, the right to recover damages is solely in the widow and the parents áre not entitled to any part of the damages she may recover. But in the same case the court said: “When a husband or wife recovers damages, and there are children of the deceased, the provision of the statute for distribution under the intestate law applies, and strictly accords with the main objeet of the statute, which is a remedy for the loss to the family. The surviving members of the family are recompensed in damages for the deprivation.” The decision in Lewis v. Hunlocks Creek, etc., Turnpike Co., 203 Pa. 511, is not in conflict with any of these cases. It simply emphasizes the doctrine of Penna. R. R. Co. v. Adams, 55 Pa. 499, which was thus stated: “Parents and children in the section seem to be words used with an intention to indicate the family relation in point of fact as the foundation of the right of action without regard to age. . . . Under age the law presumes the relation to exist and that stands for proof until the contrary appears. Over age no doubt but the relation must be shown to exist in point of fact.” Applying that principle to the facts of the case of Lewis v. Hunloeks Creek, etc., Turnpike Co., the court held that children of full age whose family relation with the deceased had been severed were not .entitled to any share of a judgment which the widow of the deceased had recovered in an action for his death. There is no intimation in the case that if the family relation had existed in point of fact, and the judgment had not been assigned to a third person, the children would not have been entitled to the equitable relief that was granted in Allison v. Powers, 179 Pa. 531.

There is one other question to be noticed before discussing the facts, and that relates to the mode of carrying on the suit brought by the surviving husband or wife who dies before the action is brought to trial. In Fitzgerald v. Edison Electric Illuminating Co., 207 Pa. 118, where the action was brought by the widow in her own behalf and that of her son, they being the only persons entitled to recover, and the widow having died pending the litigation, her administrator was substituted as plaintiff. The court was requested to charge that the jury could assess only such damages as the widow suffered by reason of the loss of her husband from the time of his death to the time of her death. The point was refused upon the ground that the action was for the benefit of the child as well as of the widow, and upon appeal the assignment of error bringing this ruling into question was' overruled. The case is directly in point.

In the present case there was not only the presumption, but ample affirmative evidence of the existence of the family relation in point of fact between the deceased and her minor children, and some evidence tending to show its existence between her and the two children who were of age. The same evidence also answers the suggestion that it was not shown that the children suffered any pecuniary loss. Philip McArdle, the oldest son, testified, that his father was a puddler and was in good health at the time his mother died; that she was forty-two years of age and in good health at the time of her fatal injury; that she kept house for his father and family of five children; that she did all the housework, including the washing and ironing, without any help; that after her death a younger son aged sixteen took the mother’s place in the housekeeping, including the cooking, washing and ironing; and that this lasted only ten months, when they had to break up housekeeping and go to boarding at different places. In Stahler v. Phila. & Reading Ry. Co., 199 Pa. 383, following the lead of Schnatz v. Phila. & Reading R. R. Co., 160 Pa. 602, the rule was declared to be, that if there be a reasonable expectancy of pecuniary advantage from a person bearing the family relation, the destruction of such expectancy by negligence occasioning the death of the party from whom it arose will sustain the action. That the evidence was sufficient, if believed, to bring this case within this statement of the rule, as explained in Penna. R. R. Co. v. Adams and Lewis v. Hunlocks Creek, etc., Turnpike Co., there can be no doubt. As to the actual pecuniary loss occasioned by the deprivation of her services and companionship the evidence is much stronger than that which was held to be sufficient to warrant submission of the question to the jury in Delaware, Lackawanna & Western R. R. Co. v. Jones, 128 Pa. 308. Such service of a wife as was shown in this case is pecuniarily more valuable than that of a mere hireling. If the measure of loss were merely what the wages of ordinary servants would have been there would be plausibility in requiring the plaintiff to show what they would have been, but that is not the measure. “The frugality, industry, usefulness, attention and tender solicitude of a wife and the mother of children surely make her services greater than those of an ordinary servant, and therefore worth more. These elements are not to be excluded from the consideration of a jury in making a mere money estimate of value:” Agnew, J., in Penna. R. R. Co. v. Goodman, 62 Pa. 329. Bearing in mind that such action as this is given to compensate the surviving members of the family, these elements are to be considered in measuring as well the pecuniary loss to the children as that of the husband. Without further elaboration we conclude that neither as a general proposition of law applicable to all such cases, nor as a proposition of law applicable to the evidence in the present case, was it proper to hold that the limit of recovery was the loss of the decedent’s services “ as wife and companion to her husband during the time that intervened between her death and that of her husband.”

But was the measure of damage precisely the same as if Michael McArdle had been living at the time of the trial? This question is raised by the first assignment of error and is not free from difficulty. It would be less difficult if the jury had power to apportion their verdict among the various parties entitled. But under our statutes relating to such actions they have not that power. They must estimate the value of the life to the surviving members of the family and render a verdict for a lump sum which shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors.” To hold that this lump sum shall be less, if the husband who brought the action dies pending the litigation, and after recovery of the same shall be apportioned as directed by the act, would not accomplish the result, so far as the children are concerned, which the act plainly intends. Nor is it clear that if the damages are computed as if the husband had not died, the result will be to compel the defendant to pay more, and to give the husband’s estate more than the acts contemplate. While the case of Emery v. Philadelphia, 208 Pa. 492, does not rule the exact point, it was decided upon a principle which is pertinent. That was an action by a wife for the death of her husband. It was contended that it was not sufficient to prove the decedent’s expectancy of life without proving also the plaintiff’s expectancy of life. According to this construction the recovery in the present case, if the husband had been living at the time of trial, would have been affected by his expectancy of life and perhaps that of each child. But this view was rejected, not merely because of the unreliability of the mortuary tables as evidence of the expectancy-of life, nor because of the uncertainty that would be added to the result by the introduction of evidence of the plaintiff’s expectancy as well as that of the deceased immediately before the injury. It is true-these considerations are suggested in the opinion, but it is quite evident that the controlling reason was that the plaintiff’s expectancy of life did not affect her right of recovery in any way. Speaking of the argument that while the husband might have lived a certain number of years yet his wife might not, and therefore her damages ought to be limited to the double contingency of their joint lives, Chief Justice Mitchell said: “Appellant cites Baltimore, etc., Turnpike Road v. State, 71 Md. 573, which seems to give the approval of a court of very high authority to this contention. It appears, however, that under the Maryland' code, action in such cases is brought by the state to the use of the widow and infant children, and the jury are to give ‘such damages as they may think proportioned to the injury resulting from such death to the parties respectively.’ It is not clear that this means more than that the jury instead of giving a lump sum to all, shall apportion their verdict among the various parties plaintiff. If such be the meaning, the inquiry as to the widow’s expectation of life would be relevant and material. But under our statute, the widow without regard to her age or expectation of life, takes such proportion of the damages as she would have taken in her husband’s personal estate in case of testacy. Hers is a present right regardless of age.” As at the time of suit brought the loss of Michael McArdle and his family was complete, and they then had a present right to full compensation therefor, to be measured without regard to his age or expectancy of life, it would be illogical to hold that the happening of his death before the suit was brought to trial affected the right. We are of opinion that this would not only be illogical but would be contrary to the true intent and meaning of our statutes as heretofore construed.

The assignments of error are sustained, the judgment is reversed and a venire facias de novo is awarded.


text:
    Berkley v. Maurer, Appellant.

      Evidence — Handwriting—Experts—Comparison of hands — Opinion of witness — Act of May 15,1895, P. L. 69.
    1. A witness having the qualifications prescribed by the Act of May 15,1895, P. L. 69, to give opinion evidence based on his comparison of a disputed signature with duly proven standards, is not rendered incompetent by reason of his having acquired acquaintance with a person’s handwriting by having seen him write.
    2. The consideration to be given to this fact in weighing the witness’s testimony depends upon the circumstances of the particular case, and, if he is found by the court to have the qualifications of a witness of the second class, it is for the jury. Amongst these circumstances may be mentioned the strength and vividness of the witness’s recollection of the appearance and characteristics of the party’s handwriting, his experience and skill, the thoroughness of his examination of the disputed signature separately as well as in juxtaposition with the duly proven standards, and his fair-mindedness, or the reverse, exhibited on the witness stand.
    3. A cashier of a bank who has never seen a depositor write his name, is not a witness “acquainted” with the handwriting of the depositor merely because he paid four checks of the depositor, which checks were retained by the bank, and their genuineness never impliedly acknowledged by the depositor acquiescing in the action of the bank concerning them.
    4. An attorney at law is not a witness “ acquainted ” with another’s handwriting where he cannot say definitely that he had ever seen such person write his name, and where he cannot say definitely that letters he received from the party were replies to letters which he sent to him, or that they related to the business in which he was acting as attorney, or that their contents were such as to enable him to form an opinion as to their genuineness, or that the legal papers drawn by the witness were afterwards seen by him with what purported to be the client’s signature upon them, or whether the papers were put into the hands of the client by the witness, or whether the client placed them in the hands of the witness after they were signed, or when and under what circumstances the witness saw them.

      Practice, C. P. — Trial—Mistake in charge.

    5. Where a trial judge makes a mistake in referring to a witness as in a class to which he does not belong, counsel should call the judge’s attention of the slip at the conclusion of the charge, and if he fails to do so he cannot complain afterwards.

      Argued May 6, 1909.
    Appeal, No. 124, April T., 1909, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1903, No. 214, on verdict for plaintiff in case of H. M. Berkley, Cashier, v. E. B. Maurer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Issue to determine the validity of a judgment entered upon a judgment note with the defendant’s name upon it as surety.
    At the trial the defendant denied that he signed the note.
    James M. Cover, witness on the stand, was asked this question:
    “Q. Mr. Cover, leaving out of your knowledge of Mr. Maurer’s handwriting, your personal knowledge of his handwriting, and basing an opinion merely upon a comparison of these papers that have been submitted to you with the note in dispute, what do you say?”
    Mr. Berkey: Objected to for the reason that the witness having said that he concluded the signature to the note was genuine because of his acquaintanceship with the handwriting of Mr. Maurer, he is incompetent and unable to differentiate between his ability as an acquaintance witness and that of an expert.
    The Court: The objection is overruled. The witness is permitted to answer the question precisely as it was put. Exception noted to defendant. [1]
    “A. Well, I think I would have to examine them a little further, then.”
    Mr. Ruppel; “Q. (Please make the examination.”
    (Note and papers handed to witness for examination.)
    "A. Well, there are some things about the signature, some peculiarities about the signature on the note, which differ from every other signature; yet, I should say from the signatures submitted, that the signature on the note was made by E. B. Maurer.”
    The Court: “ Q. You mean made by the same hand that made the signatures to these other papers submitted? A. Yes, sir.”
    H. M. Berkley, plaintiff, on the stand.
    “Q. Mr. Berkley, have you examined the test papers submitted in this case with the signatures of E. B. Maurer? A. I have. Q. Have you made a comparison between the name E. B. Maurer on the test papers and the name E. B. Maurer to the note in suit? A. I made some comparison. Q. In your opinion, who signed the name E. B. Maurer to the note in suit?”
    Mr. Berkey: I now desire to cross-examine the witness as to his competency to answer the question asked.
    The Court: We will permit it, as the plaintiff has not gone into any details as to the extent.
    Mr. Berkey: “Q. You have already testified you have seen Mr. Maurer write his name? A. I saw him write his name once. Q. Where? A. In the First National Bank. Q. Before or after you took this note? A. Oh, that was before. Q. It was the signature on the standard A? A. Yes, sir.”
    Mr. Berkey: The offer just made by counsel for the plaintiff is objected to, as this witness has testified that he is acquainted with the signature of E. B. Maurer, and being acquainted with that signature by having seen him write, he is not competent to testify in the capacity of an expert. The witness is not competent to testify in more than one capacity, either as a witness familiar with the handwriting in dispute or as an expert, but never in both capacities.
    The Court: We are of the opinion that the mere fact that the witness is acquainted does not disqualify him from testifying as an expert, if he has established a special experience as provided by the act. The objection here being not to the- question of special experience, we overrule it and note an exception to the defendant. [2]
    Mr. Ruppel: “Q. In your opinion, who signed the name E. B. Maurer to the note in suit? A. E. B. Maurer, in my opinion, made that signature.”
    David Barry, witness on the stand:
    “Q. What is your business? A. Banking. Q. How long have you been engaged in that business? A. Twelve years. Q. In what capacity? A. Cashier. Q. Do you know E. B. Maurer? A. Yes. Q. How long have you known him? A. My acquaintance with Mr. Maurer is limited to the short time that he kept an account in the Cambria National Bank. Q. Have you seen any of his writing? A. I have. Q. What? A. Some of his checks drawn on our bank. Q. Have you seen him write his name? A. Not that I remember. Q. Have you had correspondence with him? A. I don’t recall. Q. Have you those checks? A. Yes, sir. [Witness produces checks.] Q. Where have these checks been since they were made? A. In the Cambria National Bank and afterwards in the First National Bank. Q. Where you have been in charge? A. Yes, sir. Q. They have been in the bank you have been in charge of ever since they were paid? A. Yes, sir. Q. Did Mr. Maurer settle at your bank for these checks? A. He never lifted them; he opened an account and drew those checks against the account; he never called to have the checks surrendered to him. Q. Were there more checks in the bank than these? A. No more. That is, we have no more in our hands now. Q. But have there been more? A. I think not. I think his account was limited to the amount of these checks. Q. Have you examined the note in dispute? A. I have.”
    Mr. Berkey: I shall ask this question subject to stating to the court that I have already submitted these'checks to Mr. Maurer, and we will follow this later with Mr. Maurer, who will identify these checks.
    (Witness, withdrawn for the present.)
    E. B. Maurer, recalled. Direct examination by Mr. Berkey.
    (Witness shown exhibits 8, 9,10 and 11.)
    “Q. By whom were the checks signed, now in your hands? A. By myself.”
    David Barry resumes the stand. Direct examination by Mr. Berkey continued:
    “Q. From your acquaintance with the handwriting of Mr. Maurer, as found upon the checks, will you state whether or not in your opinion the signature of Mr. Maurer upon the note in dispute is genuine or not? ”
    Mr. Ruppel: Objected to, for the reason that the witness has not qualified himself to answer this question.
    The Court: This witness never having seen defendant Maurer sign his name, and having simply paid the checks and recognized the checks that are now identified by Maurer as bearing his signature, we think he is not qualified to answer the question from the standpoint of one acquainted with the handwriting of the defendant; but, upon his testimony as to his twelve years’ service as cashier of the bank, we think he may and we will permit him to testify to the character of the signature upon the note by comparison with the checks that he produced, or any of the other test papers that are in evidence. Exception noted to both plaintiff and defendant, and bill sealed. [3]
    E. O. Kooser, A witness produced and affirmed upon behalf of defendant. Direct examination by Mr. Berkey:
    “Q. What is your business? A. Attorney in Somerset. Q. For how many years have you been in that business? A. Since 1892, I think. Q. How long have you known E. B. Maurer, assuming that you know him? A. Probably fifteen years; ten or fifteen years, probably. Q. Have you had any business relations with him? A. I was attorney for him when he was assignee of Robert Pickworth. I don’t know that I had any other; I may have. Q. Are you familiar with his signature? A. Well, I haven’t seen his signature for a long time. Q. Have you seen him write his name? A. I think I have. Q. Have you examined the signature upon the note in dispute? A. Let me see the note in dispute, please. [Note in dispute shown witness.] A. This is the note in dispute. Q. Have you examined it? A. Yes, sir. Q. State whether or not in your opinion the name E. B. Maurer upon the note is his genuine signature?”
    Mr. Ruppel: Objected to, for the reason that the witness is not qualified to answer.
    Mr. Berkey: “ Q. Have you seen him write his name? A. He was about the office there a good deal. I think I-have. I have no picture of seeing him with a pen in his hand, that I can recall. I surely think I have seen him write his name about the office. Q. Did you have correspondence with 'him? A. Yes, sir. Q. Has he written letters to you? A. Yes, sir. I drew some papers for him to which- his signature is attached. Q. Some of the standards that were offered by the plaintiff? A. Well, they were petitions in the Pickworth estate,,. I think they were offered as standards, but I really don’t know about that. The body of this paper here, a return of sale in the Robert Pick-worth estate, is in my handwriting. Q. Whose signature is it? A. It is here E. B. Maurer. Q. Was that signed in your presence? A. I can’t say that it was.' I see it is sworn to here before David L. Wynn. Q. You have had letters from him? A. Yes, sir. Q. Do you know his handwriting when you see it? A. Well, I would without swearing point-blank as to whether a man knows his handwriting, which is a little difficult, form my own opinion whether it is or not. I would have an opinion on the subject. I have a decided opinion. Q. Have you in your mind an exemplar of his signature? A. Yes, sir, I have.”
    Objected to. Objection sustained, and exception noted. [4]
    Defendant presented this point:
    3. Evidence of a handwriting expert alone is not sufficient to establish forgery. Answer: As applicable to this case, I decline this point. As I have heretofore said, I submit for your consideration all the evidence admitted on the trial. [5]
    The court charged the jury in part as follows:
    [One person only testified to positive knowledge of it, and that is Mr. Maurer. He alone of all the witnesses, pretends to know, to have actual knowledge, of whether this signature was made by him or not.] [6]
    [The plaintiff, before offering that note in evidence, called upon the stand first Mr. Cover, who testified to you from the two standpoints; first, that he has had an acquaintance with Mr. Maurer running over a period of years, Cover having been a merchant and justice of the peace, I believe, in the neighborhood where Maurer lived. After testifying from his familiarity with Maurer’s handwriting, he stated in his opinion, the signature E. B. Maurer upon the note was the genuine signature of E. B. Maurer. Later he was asked as to his own business put-suits, and testifying that he had been, besides being a merchant, as I have stated to you, register of wills and recorder of deeds of the county; that he had been a cashier for a while in the First National Bank of Bockwood, and more lately, was a Pennsylvania state bank examiner, and that he was familiar with hand-writings and has had special experience with handwritings. Under that form of testimony, he was permitted to answer in the second class as one who was competent to be called an expert in handwriting, and in that light he testified that from comparison with a number of other signatures which had been offered in evidence and had been shown to be genuine signatures of Mr. Maurer, made at different times, covering a long period of years, and under different circumstances, and upon different papers of different forms, that it was his opinion that this is the genuine signature of Mr. Maurer.] [7]
    [Following Mr. Cover then were put upon the stand a number of gentlemen, all, I believe, who had been connected in one capacity or another, mainly, perhaps, as cashiers in banks or as secretaries of trust companies: Mr. John D. Roberts, of Johns-town; Mr. D. Roberts, of Johnstown; Mr. Philson, of Meyers-dale; Albert Reitz, of Elk Lick; Mr. D. L. Miller, of Confluence, and Mr. E. K. Gallagher, of Somerset; and Mr. Berkley, the plaintiff, was also upon the stand. . . .
    They were placed upon the stand, and testified in this second class of persons who have had special experience with documents, handwritings and alterations, and to them were submitted these papers which are called standards, first having proven or having it admitted that they bore the genuine signature in each of them, of Mr. Maurer. In various forms of expression, they each testified that they had examined the standards and examined the note, and from such expressions, “I conclude that this signature upon the note was made by the same hand that made the signatures in the standards,” and such expressions as, “I believe the signature was made by Maurer,” and "I think E. B. Maurer wrote the name,” etc.; but whatever the form of answer made by the witness was, it all came to this, that after an examination of those standards upon what they stated was their special experience, they arrived at the opinion that the name on this note, E. B. Maurer, was written by E. B. Maurer, the defendant.] [8]
    Verdict and judgment for plaintiff for $1,158.13. Defendant appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions.

      October 11, 1909:

      J. A. Berkey, with him C. L. Shaver, for appellant.
    It is clear as a psychological proposition that the witness was incapable and incompetent as an expert, having in his mind an exemplar of Maurer’s signature acquired by acquaintance with it: Travis v. Brown, 43 Pa. 9; Gentner v. Ulmer, 15 Phila. 233.
    Enough was developed in the examination of the witness Kooser to render him competent though defendant’s counsel interjected an objection in the midst of the examination which was promptly sustained by the trial court: Shitler v. Bremer, 23 Pa. 413.

      W. H. Rurppel, with him G. R. Scull and J. R. Scott, for appellee,
    cited: Bank v. Jacobs, 1 P. & W. 161; Baker v. Haines, 6 Whart. 284.
   Opinion by

Rice, P. J.,

The question being as to the genuineness of the signature of E. B. Maurer, opinion evidence of two classes of persons was admissible and relevant: (a) any person “acquainted” with his handwriting; (b) persons who, to use the words of our statute, “have had special experience with or who have pursued special studies relating to documents, handwriting and alterations thereof who are herein called experts:” Act of May 15, 1895, P. L. 69. Prior to this statute there had been much diversity of opinion, and of decision as well, upon the question of “comparison of hands. ” But it was finally settled in Travis v. Brown, 43 Pa. 9, decided in 1862, and the rule was adhered to in later cases down to and including Rockey’s Estate, 155 Pa. 453, decided in 1893, that it was not competent to call in chief a witness of either of these classes to make comparison between the paper in suit and other well authenticated writings of the same party admitted as test papers, and to testify to his conclusions from such comparison; the comparison was to be made by the jury. So far as the competency of a nonexpert witness is concerned, the law remains the same: Groff v. Groff, 209 Pa. 603. And there is good reason why it should be so. Where specimens are brought into court there is no need of any opinion based on them except from persons skilled in handwriting; for the jury can judge as well as any other layman: 3 Wigmore on Evidence, sec. 1997. The second section of the act makes it competent for experts, evidently meaning the persons called experts in the preceding section, in giving their testimony to make comparison of the disputed handwriting with any documents or writing admitted to be genuine, or proven to the satisfaction of the judge to be genuine, and declares that their testimony respecting the same shall be submitted to the jury as evidence of the genuineness or otherwise of the writing in dispute.

The question raised by the first, second and seventh assignments of error relates to the competency of a witness to make a comparison of hands, where he is both acquainted with the handwriting of the party whose signature is in dispute, and also possesses the qualifications of the persons whom the statute designates as experts. The question is brought out very sharply in the first assignment of error, where it appears that such a witness was asked to leave out of view his personal knowledge of Maurer’s handwriting, acquired by having seen him write on other occasions, and testify to his opinion based merely upon a comparison of the disputed signature with other well authenticated signatures of Maurer upon writings admitted as test papers. The objection to the testimony is not put by appellant’s counsel on the ground that this witness had any incapacity to do this which is not common to all handwriting experts, but on the assumed psychological proposition that no person, no matter how skilled in chirography, who has in his mind an exemplar of another person’s handwriting, acquired by having seen him write, is capable of forming an independent and a wholly unbiased opinion as to the genuineness of the disputed signature of that person, based exclusively upon his comparison of it with duly proven standards. These are not the exact words of counsel, but we believe they present fairly the idea which one branch of their argument leads to. In support of their contention, counsel cite the following language of Woodward, J., in Travis v. Brown: “ Nor is he an expert who is called to compare a test writing, whose genuineness is established by others, with the writing under investigation, if he have knowledge of the handwriting of the party, because his judgment of the comparison will be influenced more or less by his knowledge, and will not be what the testimony of an expert should be, a pure conclusion of skill.” But inasmuch as one of the points decided in that case was that mere experts were not admissible to make the comparison and to testify to their conclusions from it, the foregoing observations, although entitled to the highest respect, could scarcely be regarded as a binding decision of the question now under consideration, even if there were no statute on the subject. The same is true of the dictum in Gentner v. Ulmer, 15 Phila. 233, “that a witness is not competent to testify in more than one capacity. He cannot give his opinion from a knowledge of the handwriting and as an expert, nor can he be examined as an expert if he has such knowledge.” We are warranted in speaking of this as a dictum, for the report of the case on writ of error, 3 Penny. 453, fails to show that this precise question was raised in the case; it certainly was not raised by the assignments of error and was not alluded to in the opinion of the Supreme Court. Nor are we convinced that the rule as broadly stated by the trial judge in Gentner v. Ulmer had been established by precedent as part of the common law of Pennsylvania, or that such a rule would be deducible from established principles of law or of science. But we need not further discuss the cases prior to the act of 1895. As was said by Justice Woodwaed in Travis v. Brown, when evidence by comparison of hands should be received, whether the witness making the comparison should be qualified by personal knowledge of the party’s handwriting, when mere experts should be admitted to make comparisons, and what degree of evidence is required to establish the genuineness of the test papers, were questions that had been debated in a multitude of cases. And it is a matter well known to the profession, that even after the clear enunciation of the five rules in that case, the subject of comparison of hands was agitated and many cogent reasons were urged in favor of a more .liberal rule. This led to the passage of the act of 1895, which is not a mere codification of existing rules established by the decisions, but was intended to establish a new and different rule. The legislature did not content itself with merely declaring that experts might make comparison of hands, but prescribed generally the qualifications which the witness must possess. If the legislature had deemed it wise that the witness must have, in addition, the negative qualification of having acquired no acquaintance with the person’s handwriting by seeing him write, we are convinced that it would have said so in unmistakable terms. This omission must be deemed to have been intentional, because the state of the law as declared in Travis v. Brown and subsequent cases in the same line must be presumed to have been known to the legislature, and to have been considered by it as requiring a radical change. The legislature evidently went on the well-warranted supposition that a witness having the prescribed qualifications can aid the jury to some extent at least, even though he may not have the additional negative qualification. The statute is remedial in its nature, and its purpose ought not to be defeated or hindered by excessive refinement of construction which goes to the extent of introducing a qualification which the legislature saw fit to omit. We conclude that a witness having the qualifications prescribed by the statute to give opinion evidence based on his comparison of the disputed signature with duly proven standards is not rendered incompetent by reason of his having acquired acquaintance with the person’s handwriting by having seen him write. The consideration to be given to this fact in weighing the witness’s testimony depends upon the circumstances of the particular case, and, if he is found by the court to have the qualifications of a witness of the second class, is for the jury. Amongst these circumstances may be mentioned the strength and vividness of the witness’s recollection of the appearance and characteristics of the party’s handwriting, his experience and skill, the thoroughness of his examination of the disputed signature separately as well as in juxtaposition with the duly proven standards, and his fair-mindedness, or the reverse, exhibited on the witness stand. The first, second and seventh assignments are overruled.

The third assignment of error complains of the rejection of the offer of David Barry as a witness “acquainted” with the handwriting of Maurer. He had never seen Maurer write, nor had he had any correspondence with him that he could recall. But he was cashier of a bank in which Maurer made a deposit, and four checks purporting to be signed by Maurer were presented to the bank and paid. The checks were not called for by Maurer but were retained by the bank, and it does not, appear that a settlement of the account took place between them, or that Maurer impliedly acknowledged the genuineness of the checks by acquiescence in the action of the bank concerning them. The dissimilarity of the qualifications of this witness and those of D. W. Weller, whose competency was passed on when this case was here before, is clear and very material. There there was sufficient evidence to qualify the witness under the rule applicable to acquaintance with the handwriting of a party, acquired in the course of business with him, from signatures impliedly acknowledged to be genuine, and acted on by both parties as such. In the present case there is no evidence of Maurer’s acknowledgment of the genuineness of the signature to the four checks, prior to the time when they were shown to him on the trial. The knowledge which the witness then acquired of their genuineness did not qualify him to testify as one acquainted with the handwriting of the party: Reese v. Reese, 90 Pa. 89. In holding that his special experience for twelve years in a bank qualified him to testify from a comparison of hands, and that alone, the court went as far as the defendant had a right to ask. The third assignment is overruled.

The rejection of the opinion evidence of E. O. Kooser, based on his acquaintance with Maurer’s handwriting, is the subject of complaint in the fourth assignment. The witness is a member of the bar. He testified that he had been attorney for Maurer when he was assignee for Robert Pickworth, that he thought he had seen him write his name when he was about his office, but, to use his words, “I have no picture of seeing him with a pen in his hand that I can recall;” that he had correspondence with him and had received letters from him; that as his attorney he had drawn papers for him to which his signature was attached, amongst which were petitions in the Pickworth estate and a return of sale in the same estate, but that he could not say they were signed in his presence. Before a man is permitted to state his belief of the genuineness or the contrary of the handwriting of another, he must, state facts and circumstances to show he has knowledge enough to speak of it with reasonable certainty: Slaymaker v. Wilson, 1 P. & W. 216; Porter v. Wilson, 13 Pa. 641. One mode of acquiring such knowledge is by having seen him write, and it is said to be sufficient to make the witness competent if he has seen the party write but once and then only his name. The probative value of the opinion of such a witness may be very slight, but the jury will be permitted to weigh it: 1 Greenleaf, Evidence, sec. 577 (15th ed.); Wilson v. VanLeer, 127 Pa. 371; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225. But where the fact that the witness has seen the party write is left in uncertainty by his own preliminary examination, the trial judge cannot be convicted of error in rejecting his opinion as to the genuineness of the disputed signature unless he has acquired knowledge of the party’s handwriting in some other legally recognized mode. Another mode of acquiring such knowledge is thus described in Porter v. Wilson, 13 Pa. 641, following Best on Principles of Evidence, sec. 215 et seq., and 1 Greenleaf, Evidence, sec. 577: “The second mode, is from having seen letters or other documents purporting to be the handwriting of the party, and having after-wards personally communicated with him respecting them, or acted upon them by written answers producing further correspondence or acquiescence by the party in some matter to which they relate, or by any other mode of communication between the party and the witness, which, in the ordinary course of the transactions of life, evidences a reasonable presumption that the letters or documents were the handwriting of the party.” In Commonwealth v. Smith, 6 S. & R. 568, the question was as to the genuineness of the signature of a cashier of a New York bank. The cashier of a bank in another city was permitted to testify to his opinion upon the question after having shown that as cashier he had correspondence for many years with the New York bank, that his letters had been addressed to the cashier and answered by him, and that receipt of bills remitted had been acknowledged by him. In United States v. Simpson, 3 P. & W. 437, the witness was held to be competent upon proof that he had often remitted money to the party and received his receipts in return; In Clark v. Freeman, 25 Pa. 133, the witness was permitted to express his opinion from knowledge of the handwriting of the party acquired from correspondence with him in which the witness had addressed him letters and received replies thereto. In each of these cases, which may be taken as fair illustrations of the general rule relating to acquaintance from correspondence, the exemplar in the mind of the witness with which he compared the disputed writing was formed from his observation of other writings which he had reasonable ground for believing to be genuine. This principle, however, does not extend to a witness who has had no correspondence with the party, and has no knowledge of his handwriting except that which he derived from letters written to other persons which purported to have been written by him, even though he swears that the contents of the letters were of such a character as to enable him to judge certainly of their genuineness: Phila., etc., R. R. Co. v. Hickman, 28 Pa. 318. The witness in the present case did not say that the letters he received were replies to letters he sent to Maurer, or that they related to the business in which he was acting as attorney for Maurer, or that their contents were such as to enable him to form an opinion as to their genuineness; nor was the court bound to infer either of these facts from what the witness did testify to. To clearly qualify a witness to testify to his opinion concerning the genuineness of a disputed signature, based on his comparison of it with the exemplar in his mind formed from correspondence alone, the trial judge is justified in requiring something more to be shown than merely that the witness has received a letter or letters purporting to bear the signature of the party, or that the witness has written and mailed letters to him, or both. We come then to a consideration of the acquaintance of the witness with the handwriting of Maurer derived from his observation of the other papers referred to in the testimony. These papers were drawn by the witness as Maurer’s attorney and were afterwards seen by the witness with what purported to be Maurer’s signature upon them. Whether these papers were put into the hands of Maurer by the witness, whether Maurer placed them in the hands of the witness after they were signed, when and under what circumstances the witness saw them before the trial, are questions upon which the testimony of the witness is silent. These matters, although susceptible of clear proof, were left to inference, and the question is whether the judge is to be convicted of error because he did not draw the inferences necessary to qualify the witness to testify to his opinion derived from having seen the papers after they were signed. As in the question of acquaintance with the handwriting of another, derived from the receipt of letters purporting to be signed by him, so in the question of such acquaintance derived from seeing other documents purporting to bear his signature, the essential requisite is that the disputed writing shall be tested by its resemblance to the exemplar in the witness’s mind of documents in the genuineness of which the alleged writer has. acquiesced. His acquiescence in the genuineness of the documents, from which the witness acquired his acquaintance ante litem motam, may be shown by his express acknowledgment of them in the presence of'the witness, as in Second National Bank of Reading v. Wentzel, 151 Pa. 142, or by his acting on them to the witness’s knowledge as genuine, or knowingly permitting the witness to act on them as genuine, and perhaps by other modes, but it must be shown. Taking a strict view of the testimony of the witness in the present case, we cannot say that there is manifest error in the court’s conclusion that this essential requisite was not as satisfactorily established as it ought to have been, and as it easily could have been, if it existed. It is proper to take this view of the testimony before reversing the judgment of the trial court upon a question addressed so largely to its discretion: Wilson v. VanLeer, 127 Pa. 371; Irwin v. Patehen, 164 Pa. 51; Hemphill v. McClimans, 24 Pa. 367. The fourth assignment is overruled.

In support of the fifth assignment counsel for the defendant argue that he was entitled to instructions that if for any reason the jury found the testimony of the other witnesses unsatisfactory to them and threw it out altogether, the purely expert testimony would not be sufficient to sustain a verdict in the plaintiff’s favor. It is true expert testimony is usually regarded as corroborative only, but it is unnecessary to go into an elaborate discussion of that subject because the defendant’s point, the refusal of which is the subject of this assignment of error, was not so framed as to call for a ruling upon the question suggested in the argument of counsel. If the plaintiff’s case had depended upon the establishment of the fact that the disputed signature was a forgery, there might have been some appropriateness in the point, but it did not. It was the defendant who alleged the forgery, and he introduced expert testimony to sustain his allegation, and therefore it seems obvious that the refusal of the point did not prejudice his case. It is to be observed further that in answer to the other points of the defendant, which were affirmed, the jury were as fully instructed upon the question of the reliability of this class of testimony as the case required.

We cannot agree that the learned judge’s allusion to the defendant in the part of the charge complained of in the sixth assignment of error was prejudicial to him. It was a statement which was rather calculated to impress upon the minds of the jurors the fact that the defendant’s actual knowledge was superior to that of the other witnesses. This assignment is overruled.

In the enumeration and classification of the many witnesses who had testified on the one side and the other, the learned judge inadvertently spoke of E. K. Gallagher as being one of the witnesses who had testified as experts. He had not testified as an expert, but as one acquainted with the handwriting of Maurer. It is not at all plain that the plaintiff did not have more right to complain of the inadvertence than the defendant. But be that as it may, the duty of either party who felt aggrieved was to call the judge’s attention to the slip at the conclusion of the charge. There are numerous late cases in which it has been held that the omission to do so estops the party from complaining afterwards. A notable case is Providence Life & Trust Co. v. Philadelphia, 202 Pa. 78. In conclusion, we remark that the case was submitted to the jury in a clear, adequate and impartial charge and that no error appears of record which would justify a reversal of the judgment.

The judgment is affirmed.