text:
    McDevit v. Philadelphia, Appellant.
    February 28, 1908:

      Negligence — Municipalities—Sidewalk—Accumulation of ice and snow.

    In an action against a city to recover damages for the personal injuries sustained by a fall on a slippery sidewalk, a verdict and judgment for plaintiff will be sustained where the plaintiff and three other witnesses for the plaintiff testified to the existence of hills and ridges of ice of a dangerous character continuing so long as to charge the city with constructive notice; and this is the case although three or four of the plaintiff's own witnesses contradicted the plaintiff, and twelve or fifteen witnesses for the defendant testified that no such condition existed on the sidewalk in question at the time of the accident or before it.
    Argued Oct.. 24, 1907.
    Appeal, No. 109, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 4,244, on verdict for plaintiff in case of Catharine Mc-Devitt, by her next friend and mother Laura Brady, v. City of Philadelphia.
    Before Bice, P. J., Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $925. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant; and (2) in overruling defendant’s motion for judgment non obstante veredicto.

      Joseph W. Catharine, assistant city solicitor, with him Charles W. Boger and J. Howard Gendell, city solicitor, for appellant.

      Thomas A. Fahy, with him Walter Thomas Fahy, for appellee.
   Opinion by

Morrison, J.,

In this action of trespass the plaintiff averred that on February 13, 1905, she slipped and fell on an accumulation of ice and snow at the northeast corner of Ninth street and Columbia avenue in Philadelphia. The evidence establishes the fact, quite clearly, that she was seriously injured.

The learned court refused the defendant’s point that: “Under all the evidence in this case your verdict must be for. the City of Philadelphia, defendant;’’ and submitted the evidence to the jury and they returned a verdict of $925 for the plaintiff. The court also overruled the motion for judgment in favor of the defendant non obstante veredicto. The above action of the court gives rise to the two assignments of error. There was no exception to the charge, except to the refusal of the defendant’s point.

The plaintiff called about a dozen witnesses and the defendant about twice as many. It cannot be denied that the plaintiff and her mother, corroborated to some extent by two other witnesses, testified to an accumulation of snow and ice on the sidewalk where the accident happened, and that it consisted of hills and ridges of such a character as to be an obstruction to travelers, and that it had been there so long that the city authorities shouljl have caused its removal. But, on the other hand, the defendant proved by twelve or fifteen witnesses that no such condition existed on the walk in question, at the time of the accident or before it; that the walk was in about the same condition as the other walks in that vicinity and that they were simply slippery, caused by the conditions of the weather immediately prior to the accident. We do not hesitate to say that, from the testimony, we find it difficult to understand why the jury did not find for the defendant. The very strong weight of the testimony appears to be against the truth of the testimony of the plaintiff and her mother. In addition to this, three or four of the plaintiff’s own witnesses contradict the testimony of the plaintiff and her mother as to the accumulation of snow and ice on the sidewalk, its thickness and as to the hills and ridges. But the jury adopted the plaintiff’s story as to the condition of the sidewalk and the learned judge who saw the witnesses and heard them testify, approved the 'verdict by entering judgment thereon.

As the evidence appears to us, the court would have been justified in setting aside the verdict and granting a new trial. However, the defendant’s counsel filed no reasons nor motion for a new trial and the learned judge would hardly be expected, in such a case, to grant a new trial on his own motion.

The learned counsel for the defendant, in their printed argument, very frankly say; “Notwithstanding the overwhelming character of the testimony of the four witnesses for the plaintiff and the number called by the defendant in support of the city’s contention that the condition of the pavement, whatever it may have been, was due to the weather prevailing at the time, the jury found in plaintiff’s favor. We appreciate the futility of directing the attention of this honorable court to the questions at issue in the court below and properly within the function of the jury to decide, however unjustly it may have acted, and recognize that we are bound for the purpose of this'argument, to meet the case as made by the testimony of the plaintiff and her mother, regardless of their interest in the suit, and the contradictory testimony of her four remaining witnesses.” This, therefore, means that if the learned court did not err in refusing a binding instruction in favor of defendant and in refusing a judgment non obstante veredicto, then the judgment should be affirmed.

The learned counsel for the plaintiff relies on the following authorities: McLaughlin v. City of Corry, 77 Pa. 109; Decker v. Scranton City, 151 Pa. 241; Wyman v. Philadelphia, 175 Pa. 117; Manross v. Oil City, 178 Pa. 276; Steck v. City of Allegheny, 213 Pa. 573. Under the evidence in the present case we do not think that Decker v. Scranton City and Manross v..Oil City, have much application. Those cases rested on the peculiar negligence of the city officials which caused the conditions complained of. In Blaine v. Philadelphia, 33 Pa. Superior Ct. 177, we have expressed our views in regard to those cases and we will not repeat them here.

The learned counsel for the defendant have presented an elaborate argument, citing a large number of cases. We have examined these cases and considered the argument carefully and we are not convinced that, the record discloses reversible error. The cases cited by the respective counsel have been considered and commented upon so often that it will not be profitable to discuss and quote from them here. The present case is really within a narrow scope, although the record is very lengthy. If the plaintiff, her mother and one or two other witnesses told the truth and were not mistaken, there was an accumulation of snow and .ice, with hills and ridges therein, for such a length of time as to warrant the jury in finding that the city officials were negligent. It is not seriously contended that the plaintiff was guilty of contributory negligence. The jury found that the plaintiff and her mother correctly described the condition of the sidewalk; that it was obstructed and that the city officials ought to have caused the snow and ice to be removed. Upon this condition of the case, the learned counsel for the defendant saw fit to waive their right to move for a new trial and predicated their defense upon a motion for judgment non obstante veredicto. We have already indicated that we do not think the court erred in overruling this motion.

The assignments of error are dismissed and the judgment is affirmed.


source: Caselaw Access Project

author: Orlady J.,

license: Public Domain

text:
    Tyson v. Baizley, Appellant.

      Contracts — Physician—Fee of consulting physician.

    A consulting physician who has been called in by an attending physician with the assent of the patient, is entitled to recover his fee from the patient; and this is the case although he may have made a mistake in judgment in diagnosing the case at the consultation.
    Where a party knowingly and without objection, permits another to render service for him the law implies a promise to pay what the service is reasonably worth.
    The implied contract of the physician is not to cure, but to treat with care and reasonable diligence and skill.
    Submitted Oct. 18, 1907.
    Appeal, No. 114, Oct. T., 1907, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 735, making absolute rule for judgment for want of a sufficient-affidavit of defense in case of James Tyson v. Rudolph R. Baizley.
    February 28, 1908:
    Before Rice, P. J., Henderson; Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from magistrate.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case. ''

      Error assigned was the order of the court.

      O. W. Payran, for appellant,
    cited :• Sherman’s Est., 6 Pa. C. C. Rep. 225; Tredway v. Kennedy, 153 Pa. 438.

      Charles Sinkler, for appellee,
    cited: Small v. Howard, 128 Mass. 131; Mallen v. Boynton, 132 Mass. 443; Shelton v. Johnson, 40 Iowa, 84; Ely v. Wilbur,'49 N. J.' L. 685; McCandless v. McWha, 22 Pa. 261.
   Opinion by

Orlady J.,

The defendant’s wife had been ill and under the care of the family physician for about six months, without any apparent improvement in her condition. The husband was informed of a doubt in the physician’s mind as to the exact character of the disease, and of his desire to have a consultation with a specialist in order to make a proper diagnosis. The plaintiff was selected with the knowledge and consent of the defendant and of his wife, who submitted hérself to a thorough examination by the two physicians. The treatment which had been applied and the diagnosis which had been announced by the family physician was approved and confirmed by the consultant. After a demand had been made for the fee charged by the plaintiff; and payment thereof had been refused by the defendant, this action' was brought to recover it, and the defense interposed being, that the employment of the plaintiff was only to satisfy the mind of the family physician as to the exact nature of the malady of the wife, and that the diagnosis reached was erroneous;-that the charge for such a consultation should have been included in the bill of the family physician, who had been paid in full. It is not necessary to cite individual authorities in support of the proposition, that a principal is to be bound by the acts of his accredited agent which are reasonably incident to the full performance of the contract of service. The defendant impliedly directed the family physician to act in such a way, and to adopt such a course of treatment as in his judgment would be most likely to effect the ultimate recovery of the patient’s health; and the selection of a consultant with the knowledge of the patient and the husband, was clearly within the scope of- the authority given to the physician. To this knowledge was added the defendant’s consent in regard to the employment of the plaintiff, and conceding that the services were not rendered at his. special instance, and request at the time of performance, nevertheless the defendant as well as his wife and the two physicians believed the services to be for the benefit and advantage of the patient, so that under the admitted facts, a promise to pay therefor was implied as an inference of law. The implied contract of the physician is not to cure, but to. treat with care and reasonable diligence and skill. To hold the physician answerable for not exercising more than ordinary professional skill is imposing upon him a heavier burden than the law has yet put upon a professional man’s shoulders. He is not an insurer of his patient’s health, nor of a recovery from an abnormal condition: Richards v. Willard, 176 Pa. 181; English v. Free, 205 Pa. 624. Nor is he to be considered as warranting a cure unless under a special contract for such purpose: Whitesell v. Hill, 37 L. R. A. 830; Ebner v. Mackey, 51 L. R. A. 298. In Garrey v. Stadler, 67 Wis. 512 (58 Am. St. R. 877), it was held, under facts similar to the ones before us, that the plaintiff is entitled to recover from the defendant, although the family physician had agreed to pay the cost of the consultation, but without the knowledge of the consultant. Where a party, knowingly and without objection, permits another to render service for him, the law implies a promise to pay what the service is reasonably worth. It is not material that the plaintiff’s bill was not in-eluded with that of the family physician. Its amount could have been ascertained when payment of that bill was made, and the liability for it determined before the service was rendered, but having accepted it without objection, it is now too late to say it is excessive, and not the usual charge made by physicians generally for like services,” without stating in what it is excessive, or what the alleged usual charge is claimed to be. The defense set out is not a good one under the decisions, and the judgment is affirmed.


author: Head, J.,

text:
    Smith, Appellant, v. Smith.

      Statute of limitations — Specialty—Instrument under seal — Suit on specialty not in possession — Profert of deed.

    Where the owner of a judgment note under seal is wrongfully deprived of the possession thereof by the payee, and subsequently at a date more than six years from the act of dispossession but within twenty years from the date of the note, the executor of the owner brings suit to recover the amount due on the note, he may show the unlawful dispossession and the amount due, and his recovery cannot be defeated by a plea that the suit was not instituted until after six years from the date of the dispossession. In such a case the plaintiff is not bound by the rule that he who brings an action founded on a specialty must make profert of his deed.
    Such a plaintiff is not obliged to first establish collaterally, that he has a legal remedy to recover possession of the chattel evidence of his contract before he can enforce an unquestioned right arising out of the contract itself.
    Argued Oct, 21, 1907.
    Appeal, No. 154, Oct. T., 1907, by plaintiff, from judgment of C. P. Franklin Co., April T., 1904, No. 54, for defendant non obstante veredicto in case of Frank T. Smith, Executor of the last will and testament of John Smith, deceased, v. Landis J. Smith.
    Before Rice, P. J., Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a judgment note under seal not in possession of the plaintiff. Before Endlich, J.

      The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,400.96. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.
    O. C. Bowers, with him J. 8. Omwdke, for appellant.
    — This being an action upon the sealed instrument, the plea of the statute of limitations has no application and is a nullity: Moss’ App., 43 Pa. 23; Ake and Feay’s App., 74 Pa. 116; Presbyterian Church v. Conlin, 11 Pa. Superior Ct. 413; Bush v. Bush, 200 Pa. 392; Lorah v. Nissley, 156 Pa. 329; Sossong v. Rosar, 112 Pa. 197.
    As a general rule where a party has two remedies for the enforcement of a right, the one he chooses is not barred by the statute of limitations, merely because the other, if he resorted to it, would have been; at least this is true where the statute does not affect the right, but the remedy only: Evans v. See, 23 Pa. 88; Graves v. Dawson, 133 Mass. 419; Thayer v. Mann, 19 Pick. (Mass.) 535; Lamb v. Clark, 5 Pick. 193; Cummings v. Phila., etc., R. R. Co., 160 Pa. 590.
    The plaintiff, in view of the evidence in the case, was not bound to produce the obligation in order, to. maintain his action upon it: Attorney General v. LeMerchant, 2 T. R. 201; Straw-bridge v. Clamond Tel. Co., 195 Pa. 118.

      Charles Walter, with him D. Watson Rowe, for appellee&wkey;
    The bond being in the defendant’s possession a presumption of payment arose: Licey v. Licey, 7 Pa. 251; Albert’s Exrs. v. Ziegler’s Exrs., 29 Pa. 50.
    After the defendant had secured possession of the note, under the old practice, at any time during six years from February 15, 1896, plaintiff’s testator might have brought an action of detinue (1 Archbold’s Nisi' Prius, 286), replevin or trover; under the modern practice, trespass. Or he might have filed a bill in equity to require the defendant to deliver to him the note in suit. In any of these actions the plea of the statute of limitations would have been an effective bar to prevent his recovery.

      February 28, 1908:
    By analogy the statute is applied in equity as it is in law: Todd’s App., 24 Pa. 429; Hamilton v. Hamilton, 18 Pa. 20; Braddock Trust Co. v. Guarantee Trust & Safe Deposit Co., 180 Pa. 529; Penna.. R. R. Co.’s App., 125 Pa. 189; Ashhurst’s App., 60 Pa. 290.
    It is well settled in Pennsylvania that any action for the recovery of money obtained by fraud must be brought within six years after the commission of the fraud unless the wrongdoer actively conceals the fraud from his victim: Sankey v. McElevey, 104 Pa. 265; Smith v. Blachley, 198 Pa. 173; s. c., 188 Pa. 550.
   Opinion by

Head, J.,

This was an action of assumpsit founded on a specialty. Before the practice Act of 1887, P. L, 271, the action would undoubtedly have been debt upon specialty. Although by the very terms of the Act of March 27, 1713, 1 Sm. L. 76,— commonly called the statute of limitations, — such actions were wholly outside its provisions, the learned trial court, adopting the ingenious theory advanced for the defendant, was led to the conclusion that the bar, created by that statute in the actions therein designated, could be successfully interposed to the present action. This resulted in the destruction of what was otherwise a perfectly clear right of recovery on the part of the plaintiff, the court having entered judgment n. o. v. for the defendant. The facts out of which the contention arose, as admitted or established, by the verdict, were briefly these: On April 1, 1893, John Smith, plaintiff’s testator, loaned to his son, the defendant, $1,000, and took from him a judgment note under seal payable in one year after that date. In February, 1896, the father became seriously ill and the defendant went to his house, paid him $125, and forcibly compelled him to surrender the possession of' said note and sign a receipt for $125, purporting to be for the • balance of said .note and for all claims held by the father. The - latter recovered from the sickness and lived until November, 1902. He brought no action, at law or in equity, to recover .the possession of the note itself or the debt evidenced by it, although there was evidence from which the jury could find that he never in any way ratified or condoned the wrongful act of his son, but repeatedly declared that payment was expected and would be exacted.

After the father’s death his executor, in 1904, brought this action. The declaration contained two.counts. The first one was in the ordinary form as if the note were in the plaintiff’s possession. The second count averred the facts as herein above indicated. To this the defendant pleaded non assumpsit, payment and actio non accrevit infra sex annos, and thus the case went to trial. The defendant, upon notice, produced the note and it was offered in evidence. Of course he had the benefit of the presumption of payment arising from his possession of the note and receipt. But this was a rebuttable presumption, and, as the cause was submitted, the verdict establishes that the plaintiff succeeded in overthrowing- it, by the production of evidence satisfactory to the jury, that the note had not in fact been paid and that possession of it had been obtained by the use of illegal means. No proof having been offered in support of the pleas of non assumpsit and payment, except as to the $125, not in dispute, these pleas were ineffectual to prevent a recovery, and a verdict for the plaintiff was returned. Subsequently the court held that the plea of the statute completely barred the plaintiff’s action and entered judgment for the defendant. To this result the language used by Woodward, J., in Evans v. See, 23 Pa. 88, would appear applicable. “It would seem to be a clear dictate of natural justice that such a plaintiff should be permitted, to recover; but in this case he was not, and we are to look into the reasons assigned for denying him a verdict.” These reasons may be thus summarized. A plaintiff who brings an action founded on a specialty must make profert of his deed. To do this he must have possession of it. If he has lost or been deprived of'his actual possession and is thus unable to make profert, his failure to do so may be excused if he is able to aver and prove that he still has a right of possession which he can enforce by some legal remedy. If the present plaintiff, at the time this suit was brought, had begun an action of replevin to recover possession of the note, the defendant could have pleaded the statute of limitations in bar of that action. Had a bill in equity been filed for the same purpose, a chancellor, administering equity in analogy with law, would have refused a decree for the same reason. The plaintiff, therefore, had no enforceable right to the possession of the note and could neither make profert nor excuse his failure to do so. As this result was brought about by the operation of the statute on the several possessory proceedings indicated, the plea of the statute to the present' action must be held to bar the plaintiff's right. The elaborate arguments furnished us in the opinion of the court below and the brief of counsel, teeming, as they are, with the fruits of exhaustive industry, disclose no case that can be said to be authority for the conclusion reached, and after an attentive consideration of the line of reasoning advanced in support of it, we are all of opinion it is more plausible than convincing.

Professor Wigmore in vol. II, sec. 1179 et seq. of his work on Evidence discusses, historically and analytically, the origin and object of what he calls the “rule of profert.” In the earliest days of trial by jury indentures, solemnly executed under seal, were rare and infrequent and likely to be of common interest and note in the vicinity. It was then deemed proper that a jury, in their deliberations at the conclusion'of a trial, might take cognizance of such an instrument,' if its existence was within their own knowledge, even though it had not been produced hi court at all. As such instruments became more common it was found that the practice indicated 'often resulted in undue advantage to one of the parties as it prevented the other, who had no notice that his adversary intended to rely on some deed, presenting to the jury a release, satisfaction or other matter in discharge of the obligation created by the deed. To remedy this mischief “the rule of profert, as a doctrine of pleading” was gradually developed. But it soon became apparent that the application of the rule could not be universal, else the mischiefs it would create would be at least as great as those it was intended to remedy. So for perhaps two centuries it has been held that, in a case where the possession of the indenture was unjustly detained by the opponent, the rule of profert did not apply. There was no reason why it should and, cessante ratione, cessat et ipsa lex. When a plaintiff had thus put his case outside the operation of the rule, its trial proceeded as if the rule had no existence. Even in those ancient days we find no trace of authority for the proposition here contended for, viz.: that such a plaintiff was obliged to first establish, collaterally, that he had a legal remedy to recover possession of the chattel evidence of his contract before he could enforce an unquestioned right arising out of the contract itself. Much less can we discover in more modern times any such authority.

If the note in suit, dated in 1893, had been made payable twenty years after its date, no right of action upon it would have accrued to the plaintiff until its maturity in 1913. Yet, if the .theory of the appellee be correct, that right, by the operation of the statute of limitations, would have been barred in. 1902, eleven years before it accrued. Such a. conclusion would border closely on-the absurd.

Even in a proper case .for the application of the statute, its effect is to bar the action, not to destroy the abstract right. “The statute, bars the action, and does not begin to run until the right of action accrues:” Evans v. See, 23 Pa. 88. So it may well be that where the law gives to a party a remedy by two different actions, the.statute may bar the one and not the other. In Presbyterian Church v. Conlin, 11 Pa. Superior Ct. 413, the owner of a building had a right of action against his contractor arising out of their contract not under seal. Conlin had become surety for the contractor in an agreement which was under seal. By the default of the contractor, therefore, a right, of action accrued to the owner. against both him and his surety. At the time he brought his action against the latter the statute had. barred his remedy against the contractor. But it was held that inasmuch as the action against the surety rested on a sealed instrument, there was no room for the application of the statute. In Ahrns v. Gas Co., 188 Pa. 249, it is said: “There is no obligation upon a creditor to promptly sue his debtor. The penalty of indulgence by the creditor is not the forfeiture of a right of action against the debtor, unless that indulgence comes within the provisions of the statute of limitations. And in this case, the suit being upon a sealed instrument, the statute of limitations has no application: Davis v. Shoemaker, 1 Rawle, 135.”

In Philadelphia Trust Co. v. Phila. & Erie R. R. Co., 160 Pa. 590, suit was brought on twenty bonds, under seal, of the defendant company. They were in the possession of plaintiff’s testator at the time of his death and had been for many years before. The company set up, by way of defense, that the possession of the bohds was wrongfully obtained by said testator and that their real owner was the company itself. The. court below gave binding instructions for the plaintiff on the ground that there was not sufficient evidence to overcome the presumption of ownership arising from the possession of the bonds. The judgment was reversed and a new trial ordered so that the controlling question, viz.: the real ownership of the bonds, might be submitted to the jury. But the company; if the real owner, had lost the possession much more than six years and, under the theory we have been considering, would have been without a remedy to recover that possession. Did the real ownership become thereby a thing of no value to it?

We are not to be understood as acceding here and now to the proposition that the present plaintiff could not have recovered possession of the note in an action of replevin. We see no occasion to attempt to decide that question in a proceeding wholly collateral. Speaking for myself, I think many strong reasons could be advanced, from the facts that would probably appear in the trial of that case, for holding that the statute would be tolled. We do hold, however, that in the trial of an action of debt, now assumpsit, on specialty the statute of limitations has no application. This is plainly written in the terms of the act itself and emphasized in all the decisions. The jury having found, upon sufficient evidence and under a-proper submission, that the plaintiff’s testator was deprived of the possession of.his bond by the forcible and wrongful act of the defendant, his right to recover the debt evidenced and secured thereby, remained as complete and unimpaired as if the tortious act had never been committed. The assignments of error must therefore be sustained.

Judgment reversed and judgment is now entered for the plaintiff on the verdict. Costs of this appeal to be paid by appellee.


text:
    Peckham’s Assigned Estate.

      Bankruptcy — Insolvency—Federal act of July 1, 1898 — Pennsylvania insolvency Act of June 4, 1901, P. L. 404.
    The Pennsylvania insolvency Act of June 4, 1901, P. L. 404, never became operative as to the persons and subjects within the purview of the national bankruptcy act of July 1, 1898.

      Assignment for creditors — Effect of the assignment — Distribution— Liens — Real estate — Proceeds of fire insurance.

    The delivery of a deed of assignment for the benefit of creditors, makes the creditors of the assignor equitable owners of all that was assigned. The extent of each owner’s interest is measured by the amount of the debt due him at the date of the assignment, and each creditor is entitled on distribution to a pro rata share based on the entire amount of his indebtedness as it stood on the day of the assignment, irrespective of the fact that in the meantime the amount of the debt may have been diminished by the proceeds of the sale of real estate on which the creditor had a judgment, and the proceeds of a fire insurance policy on the same real estate, in which policy the creditor had an interest.

      Assignment for creditors — Promissory notes — Indorsement—Payment.
    Where on the date of an assignment for the benefit of creditors it appears that the assignor is indebted to a bank on a promissory note indorsed by a third person, and that after the assignment when the note became due, the bank accepted a renewal note made by the assignor to the order of the indorser, and the old note was surrendered to the indorser, the latter may prove on such note against the assigned estate.
    Argued Oct. 22, 1907.
    Appeal, No. 183, Oct. T., 1907, by Isaac Lesher, from decree of C. P. Franklin Co., sustaining and overruling certain exceptions to the auditor's report in the matter of the Assigned Estate of Samuel F. Peckham.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed in part.

      .Exceptions to report of J. D. Rice, Esq., auditor.
    The facts relating to the claim of Isaac Lesher are stated in the opinion of the Superior Court.
    As to the claim of the estate of J. S. Whitmer, deceased, it appeared that on the date of the assignment on October 18, 1905, the Farmers’ Bank of Mercersburg held two notes drawn by Peckham, and indorsed by Whitmer. After the assignment, when the notes became due, the bank accepted a renewal note made by Peckham to the order of Whitmer, and the old notes were surrendered to Whitmer, and found among his effects after his death. The auditor allowed Whitmer’s executor to prove the old notes against the estate.
    Exceptions were filed to this allowance.
    Shull, P. J., specially presiding, overruled the exceptions, saying: We find no merit in the exception to the fifteenth and sixteenth finding of fact and seventeenth conclusion of law. The notes to which the objection was made represents an indebtedness of the assignor to the bank, and were indorsed by J. S. Whitmer. The evidence shows they had been renewed from time to time. At Whitmer’s death the notes were due and payment was demanded from his executors, who paid them to the cashier of the bank. They are not barred by the statute of limitations, are a valid and subsisting indebtedness against the assigned estate of Samuel F. Peckham and are, therefore, entitled to participate in the distribution. The exceptions, therefore, to the allowance of these claims are overruled.
    The court sustained the exceptions filed by Isaac Lesher.

      Errors assigned were in sustaining and overruling various exceptions.

      J. R. Ruthrauff, of Ruthrauff & Nicklas, for appellant.—
    Lesher was entitled to a dividend on his whole claim: Brough’s Est., 71 Pa. 460; Wetzler’s Est., 3 Pa. Superior Ct. 435; Graeff’s App., 79 Pa. 146; Miller’s App., 35 Pa. 481; Patten’s App., 45 Pa. 151; Morris v. Oswine, 22 Pa. 441; Jamison’s Est., 163 Pa. 143; Trickett on Assignments, 208, sec. 185.
    Whether or not the bank accepted the renewal notes as payment, was a question of fact to be determined by the auditor: Hart v. Boiler, 15 S. &R. 162; Cake v. Bank, 86 Pa. 303.
    February 28, 1908:

      William S. Hoerner and Charles Walter, of Walter & Gillan, with them Sharpe & Elder, J. A. Strite and Linn Harbaugh, for appellees.

      G. W. Atherton, for appellees.
   Opinion by

Head, J.,

We think it must now be regarded as the settled law of this state that, as to the persons and subjects within the purview of the national bankruptcy act of July 1, 1898, our own Act of June 4, 1901, P. L. 404, relating to insolvency, never became operative: Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206. The assignor, in the case before us, was a person to whom the provisions of the act of congress would apply. The learned court below was therefore clearly right in holding that the distribution of the assigned estate could not be controlled by the provisions of the act of 1901.

On October 18, 1905, the date when Peckham made a voluntary assignment for the benefit of his creditors, he was the owner of both personal and real estate. The real estate had been valuably improved with a large gristmill and other buildings and was bound by the lien of a judgment of about $7,300 in favor of Lesher, the appellant. These buildings were insured and the policies contained a provision for the security or benefit of Lesher, as .follows, viz.: “Subject to all the terms and conditions of this policy it is hereby further agreed that such loss or damage as shall have been ascertained and proven to be due under this policy to Samuel F. Peckham, shall be “held payable for his account unto Isaac Lesher, as his interest ' may appear.”

At the date of the assignment Peckham Was further indebted upon notes, accounts and what may be generally called unsecured claims, in the sum of about $11,000, of which upwards of $3,500 were due and owing to Lesher, the appellant, the balance to a large number of persons. -Thus, in round numbers, the assignor, when he made his deed, owed about $18,000, of which the appellant held about $11,000. All of this was the personal indebtedness of the assignor, notwithstanding the fact that judgment had been entered on one note, and the further fact that the judgment creditor had provided against any diminution of the value of his lien in case of fire, by acquiring a right to the insurance money which would stand in the place of so much of the property as might be destroyed: Peoples St. Ry. Co. v. Spencer, 156 Pa. 85.

On October 13, 1905, five days before the assignment, the buildings of the assignor were burned and a loss resulted the amount of which was, a few months later, amicably adjusted at $4,575. At the time of the assignment, then, the situation was this: Lesher, the appellant, held eleven-eighteenths of the entire indebtedness of the assignor, all of the other creditors holding the remaining seven-eighteenths. The deed of assignment did not attempt to make any preference or distinction among the creditors; but the assigned estate, subject to such vested rights as could not be disturbed by the assignor, was conveyed to all of his creditors, and the quantity of interest that passed to each was measured by the proportion in which his own debt stood to the entire indebtedness.

In addition to the rights which the appellant, in common with all of the other creditors, secured under and by virtue of the deed of assignment, the former had, by his vigilance or good fortune, acquired some rights exclusive to himself, in which the other creditors had no share. By the confession of judgment dn his note, long prior to the assignment, he had obtained a first lien against the real estate of the assignor, and by the provision in the insurance policies, already quoted, he had secured a like lien upon any fund that might accrue from those policies to make good any loss in value of the real estate already bound by his judgment.

In the settlement of assigned estates usually the first fund for distribution would be that derived from the sale of the personalty of the assignor. Had that been the case in this instance the main question now before us would probably not have arisen, because it is difficult to see what objection could have then successfully been made to the allowance, to every creditor alike including the appellant, of a share of that fund pro rated on the indebtedness held by each. That was the manifest object and requirement of the deed of trust and all who claimed under that instrument would necessarily be bound by its terms. This would have resulted in giving to the appellant, approximately, eleven-eighteenths of the personal fund and still left him at perfect liberty to secure, in addition, whatever could be gathered from his liens, provided only that by pursuing all of his remedies and using all of his collateral securities, he received no more than was due to him at the time of the assignment.

But in this case the settlement of the estate was worked out in a different order. The insurance companies promptly adjusted the fire loss at $4,575 and, on December 18, 1905, that sum was paid by them on the joint receipt of the assured, the assignees and Lesher, and turned over to the latter on account of his lien. The assignees had also at once obtained an order of sale for the real estate and sold it, and, after confirmation, the net proceeds of the sale, about $2,700, were again turned over to Lesher on account of his judgment. On January 26, 1906, he entered on the record of the judgment his receipt for both of said sums, and it seems to be agreed that they were sufficient to cover the full amount of the debt, interest and costs of the judgment.

The auditor who, after the coming in and confirmation of the account, was appointed to make distribution, experienced no difficulty until he reached the personal fund. The appellant claimed out of that fund a pro rata share based on the entire amount of his indebtedness as it stood on the day of the assignment, contending that he was entitled to pursue all of his remedies and use all of his securities without having the efficiency of anyone diminished by the fruits derived from any other, so long as the result of all was to give him less than his debt. Against the objections of other creditors the auditor so held. The learned court below, however, reversed the auditor and decreed that appellant’s share must be based on the amount of his unsecured claims only, thus reducing the measure of his participation from about $11,000 to about $3,600. Hence this appeal.

The legal principle governing such distributions, founded oii and growing out of the nature and effect of the deed of trust or assignment, has been frequently laid down by the courts. The following excerpts from some of the familiar cases will plainly disclose it. In Miller’s Appeal, 35 Pa. 481, Strong, J., thus stated it: “The court below was of opinion that the dividend should be made upon the sum due at the time of the distribution, and not upon the sum due at the time of the creation of the trust. It is not easy to see upon what principle the judgment of the court was founded. By the deed of assignment, the equitable ownership of all the assigned property passed to the creditors. They became joint proprietors, and each creditor owned such a proportional part of the whole as the debt due to him was of the aggregate of the debts. The extent of his interest was fixed by the deed of trust. . . . Having thus a fixed and vested interest, having thus been constituted by the deed of assignment an owner of a proportionate part of the trust fund, how can his proportion be lessened by the fact that he has a collateral security for his demand, or by his use of such security? .... But it is not as a creditor that he is entitled to a distributive share of the trust fund. His rights are those of an owner by virtue of the deed of assignment. The amount of the debt due to him is important only so far as it determines the extent of his ownership. The reduction of that debt, therefore, after the creation of the trust, and after his ownership had become vested, it would seem, must be immaterial.” In Graeff’s Appeal, 79 Pa. 146, Sharswood, J., says: “The assignment was in trust for all his creditors then existing, pro rata, without regard to the nature of the securities they held. So far as regards the assigned estate, they were no longer creditors, but equitable owners. Graeff Was not an equitable owner of as many separate shares as he had distinct debts. His interest was to the extent of his whole claim on the estate. The payment in full of one judgment no more changed his position than would the payment of one item of a book account. It cannot alter the case that the real estate on which the judgments were liens was first resorted to. ... It is true the judgments were satisfied — the debts were paid in full; but that did not pro tanto extinguish his title as one of the original cestui que trustent, until his entire interest was extinguished.” To the same effect are Brough’s Estate, 71 Pa. 460; Morris v. Olwine, 22 Pa. 441; Murphy Co.’s Estate, 214 Pa. 258. Pages of elaboration would add nothing to the force or lucidity of the rule thus enunciated. Its application to the case in hand compels the conclusion that by the delivery of the deed of assignment, the attitude of the appellant towards the assigned estate underwent a change. Thenceforward he was one of the equitable owners of all that was assigned. The extent of his interest was measured by the amount of the debt due him at the date of the assignment, which was approximately eleven-eighteenths of the whole. The right to use all of that interest in the payment of his debt was vested in him by the deed and to the exercise of that right no creditor could object. The plan of distribution followed by the auditor was, therefore, correct and the learned court below fell into error in refusing to adopt it.

But, it has been suggested, a distinction should be taken between the fund arising from the sale of the real estate and that which came in from the insurance policies. On what principle? True the fire occurred a few days before the assignment. How did or could that fact affect the situation of Lesher on the date of the assignment? Before the fire his interest in the insurance was just what it would have been had the policies been formally assigned to him as collateral security for his debt: Stainer for use v. Insurance Co., 13 Pa. Superior Ct. 25. The fire made no change in that interest. It applied no money to the indebtedness due the appellant and reduced it not a farthing. That remained on the day of the assignment just what it was the day before the fire. As we have shown the amount due and owing to the appellant when the deed was executed fixed the share of the assigned estate that passed to him. That portion was conveyed to him for the express purpose of .enabling him, if possible, to recoup thereout all of the debt due to him regardless of the number or character of the obligations by which it Was evidenced. Nothing short of a payment of all that was due him when the deed was made, could wrest from his grasp that with which the deed had invested him. We are unable therefore to find any solid ground on which to rest the distinction suggested.

We see no occasion to prolong this opinion by a discussion of the only remaining question raised by this appeal. The reasons given by the learned court below for allowing the claim made by the Whitmer estate seem to be sufficient to support the conclusion reached, and we adopt them without further comment.

So much of the decree as reduced the distributive share allowed by the auditor to Isaac Lesher, the appellant, is now reversed and set aside. In all other respects the decree is affirmed and the record is remitted with, direction that, distribution be made as originally reported by the .auditor. The costs of this appeal to be paid by the appellees. ,


author: Oblady, J.,

text:
    Pascoe Apartment House Company, Appellant, v. Eno.

      Landlord and tenant — Surrender of premises — Evidence—Question for jury.

    In an action by the owner of an apartment house to recover three months’ rental for an apartment after the defendant had vacated it, it appeared that the plaintiff had executed a yearly lease of the apartment, but that the defendant had not executed it. The defendant claimed that he was in the apartment under an oral lease from month to month, and that he had not agreed to sign a yearly lease. This was denied by the plaintiff. There was evidence that at the time defendant vacated the apartment the defendant’s wife gave the key to the clerk who accepted it without objection, and bade her a friendly farewell. Held, that the question whether the plaintiff intended to accept a surrender of the apartment, was for the jury, and that a verdict and judgment for defendant should be sustained.
    Argued Oct. 23,1907.
    Appeal, No. 8, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T;, 1905, No. 2,808, on verdict for defendant in case of Pascoe Apartment House Company v. Paul Eno.'
    Before Rice, P. J., Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Assumpsit for three months’ rent, accruing in January, February and March, 1905. Before Audendried, J.
    At the trial it appeared that on September 28, 1903, the defendant took possession of a suite of apartments in the plaintiff’s apartment house. He claimed that he rented the apartment by the month. It appeared, however, that the plaintiff had executed a yearly'lease, and there was evidence that the defendant had agreed to execute this lease. The defendant, however, never did execute it. On January 28,1905, defendant and his wife left the house under circumstances described by the court in its charge as follows :
    That brings us into a careful consideration of the circumstances of the Enos departure from the apartment house. They left on January 25, 1905. They had threatened for some time before their departure to go. Mrs. Eno tells of the conversations which went on between her and Noll, the clerk of the apartment house: “I am going;” “Oh, no,” says Mr. Noll, “I guess not; you won’t go.” “Yes, I will,” says Mrs. Eno. That is her testimony. Mr. Eno seems to have had a conversa-. tion with Mr. Young on the subject of going. Mr. Young tells you that he explained to Mr. Eno that he regarded him as being bound for the full year and that if he went out it would be with the understanding that he would continue to pay his rent. Young does not tell you that Eno consented to that view of the matter at that time. Mrs. Eno tells you what transpired between her and Mr. Noll, January 25. The Enos had already moved some, if not all, of their possessions, from the apartment house. Mrs. Eno came back to get something which still remained, and to give up the key. She put the key in Mr. Noll’s' hands, and said, “good-by.” And they shook hands. He expressed some good wishes for her and she went off.
    [There seems to have been no effort made on the part of the plaintiff to hold the defendant’s goods. That might, however, be because Mr. Young regarded Mr. Eno of sufficient financial responsibility to answer for whatever rent he was obliged to pay without recourse to a lien on his goods; “but it would seem to me that if we are to infer from what passed between Mr.Noll and Mrs. Eno that this key was accepted unconditionally on behalf of the plaintiff, I say it would seem to me, however, that possibly the management of the apartment house had changed its mind, and that it was intended by its representatives to accept the surrender of the apartments which the Enos had occupied. If this view is correct, the defendant is relieved of further obligation to pay rent.] [1] Consider this matter and make up your minds whether under the circumstances it can be inferred that the intention of both parties, not of the Enos only, but of the plaintiff as well, was that their relation of landlord and tenant should be dissolved, and that all obligations of one party to the other should thereafter cease and be ended. If such an intention existed on the part of both parties, then the obligation of the defendant i^at an end, and there can be no recovery against him in this case. Upon the other hand, no matter what Mr. Eno may have thought, if it was not intended on the part of the management of the apartment house to release Eno from his duty to pay rent, supposing that he, under the law, was bound to further payments after he actually vacated the property, your verdict ought to be in favor of the plaintiff for the amount of the plaintiff’s claim with interest from March 28, 1905.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) portions of charge as above, quoting it; and (2) in submitting to the jury the question of the surrender of the demised premises.

      A. B. Bepetto, for appellant.
    — Generally when a party who has not put his name to a written contracts accept it when signed and sealed by the other, it binds him the same as if he had executed it: Jennings v. McComb, 112 Pa. 518; Grove v. Hodges, 55 Pa. 504; Natural Gas Co. v. Phila. Co., 158 Pa. 317.
    To avoid liability upon the ground that defendant surrendered the demised premises, the burden is upon him to prove an acceptance of the surrender; he sets it up to relieve himself from his covenant and he must prove it: Auer v. Penn, 99 Pa. 370; Railroad Co. v. Egbert, 152 Pa. 53; Murphy v. Losch, 148 Pa. 171; Haines v. Stouffer, 10 Pa. 363.
    February 28, 1908:

      Louis M. Fridenberg, for appellee.
    — Where a tenant leases property by the month at a monthly rental, nothing being said at the time of the letting of a yearly contract, no subsequent act of the landlord can change the term from a monthly to a yearly tenancy without the express agreement and consent of the tenant: Hollis v. Burns, 100 Pa. 206; Hood v. Drys-dale, 27 Pa. Superior Ct. 540.
    Where the terms of the letting aré in dispute, the question is for the jury: Folsom v. Cook, 115 Pa. 539; Johnson v. Smith, 165 Pa. 195; Guernsey v. Froude, 13 Pa. Superior Ct. 405; Milling v. Becker, 96 Pa. 182.
    The' acceptance of the keys of the apartment by Mr. Noll, the agent, from Mrs. Eno without any comment or condition was evidence of intention to accept the surrender, and was therefore properly submitted to the jury: Weightman v. Harley, 20 Weekly Notes of Cases, 470; Dos Santos v. Hollinshead, 4 Phila. 57; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; Bradley v. Brown, 6 Weekly Notes of Cases, 282.
   Opinion by

Oblady, J.,

This action of assumpsit was brought to recover rent, claimed to be due from the defendant for the first three months subsequent to his vacating a suite of rooms in the plaintiff’s apartment house. The only assignment of error on which appellant relies relates to an excerpt taken from the charge of the court in which it is suggested, under one view of the evidence, the • appellant might have intended to accept a surrender of the apartments which the defendant had occupied, and the trial judge, added: “If that view is correct the defendant is relieved Of further obligations to pay rent.” This expression was immediately followed by the statement: “Consider'this matter and make up your minds whether under the circumstances it can. be inferred that the intention of both parties, not of the Enos only, but of the plaintiffs as well, was that their relation of landlord and tenant should be dissolved, and that all obligations of one party to the other should thereafter cease and be ended.” Taking the charge in its entirety, the whole question, in dispute was fairly left to the jury to pass upon the respective contentions of the plaintiff and the defendant. It being purely a question of fact, and having been fairly submitted to the only tribunal authorized to pass upon it, we have nothing to do with the conclusion reached by the jury. The second assignment urges that the trial judge erred in submitting to the. jury the question of surrender of the demised premises, but this contention was as important from the defendant’s standpoint as the primary one of whether he had in fact made a lease for the rooms for a term of one year. They were not incompatible or contradictory defenses. The assignments of error are overruled, and the judgment is affirmed.


author: Oelady, J.,

text:
    Parker, Appellant, v. Parker.

      Divorce — Desertion—Cruel and barbarous treatment — Permanent alimony — Alimony.
    Where a libel in divorce by a husband charges both desertion and barbarous treatment, and a jury finds for the libelant on both charges,the court cannot make an.order for permanent alimony to the wife under the Acts of May 8,1854, P. L. 644, and June 25,1895, P. L. 308.
    Argued Oct. 24, 1907.
    Appeal, No. 127, Oct. ,T-, 1907, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1903, No. 180, making absolute rule for permanent alimony in case of William Parker v. Mary Parker.
    Before Rice, P. J., Henderson, Morrison, Orlady and Beaver, JJ.
    Reversed.
    Rule for permanent alimony.
    The opinion of the Superior Court states the facts.

      Error assigned was the order of the court.

      February 28, 1908:

      Henry J. Scott, with him Walter Stradling, for appellant.
    — A wife who willfully and maliciously deserts her husband, forfeits her right to compel him to support and maintain her: Overseers of the Poor v. Smith, 2 S. & R. 363; Reel v. Elder, 62 Pa. 308.

      William T. Connor, with him John R. K. Scott, for appellee.—
    That the court granting a divorce on the application of a husband, where the ground for divorce is alleged cruel and barbarous treatment on the part of the wife, has authority to award alimony seems clear, from a most superficial reading of the act of assembly and the decisions of the courts interpreting that act: Shoop’s App., 34 Pa. 233; Miles v. Miles, 76 Pa. 357; Graham v. Graham, 30 Pa. C. C. Rep. 612.
   Opinion by

Oelady, J.,

This action for divorce was instituted by the husband in 1903, who alleged as grounds therefor, the willful and malicious desertion of his wife, and that she had by cruel and barbarous treatment endangered his life. The case was finally presented to a jury for determination of the two questions suggested in the libel. After a protracted trial a verdict was returned in favor of- the plaintiff as to both questions, and a final decree of divorce a. v. m. entered May 20, 1907. After judgment had been entered on the verdict, .the respondent entered a rule upon libelant to show cause why he should not pay to her permanent alimony, and an additional counsel fee, which rule was made absolute as to the alimony at the rate of $10.00 per month, from which order this appeal is taken. The two causes for divorce, as specified in the issue, are not necessarily cognate, and it is not material how the proof in support of the one cause may have affected the finding in regard to the other one. The contention of the appellee in asking that the order of the lower court awarding permanent alimony be sustained, being, the authority conferred by the Act of May 8, 1854, P. L. 644, as amended by the Act of June 25, 1895, P. L. 308, as follows: “Where a wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable, or life burdensome; provided, that in case of divorce under this act, if the application shall be made on the part of the husband, the court granting such divorce may allow such support or alimony to the wife as her husband’s circumstances will admit of, and as said court may deem proper.” It is conceded that had the issue been confined solely to the question of willful and malicious desertion of the wife, that she would not be entitled to any relief in this regard: Reel v. Elder, 62 Pa. 308, and that her only right to demand alimony is based on the act above quoted. The two charges being separate and independent of each other by the statute, the question of which one is the greater or lesser is not material. The prohibition of the law is against granting alimony to a wife who is found guilty of deserting her husband. The instances, as provided by the statute above quoted, in which the husband is required to maintain his wife after having secured a divorce from her are such as the courts may deem just and proper on review of the facts of the particular case. The testimony upon which the court founded its decree is not before us on this appeal, and the fact that the verdict of the jury establishes the question of desertion by the wife, it must stand as a bar to her claim for alimony, and is an answer to her claim for such allowance, under the section above quoted. The reason for this enactment is not apparent in its terms, but to hold otherwise would nullify the exemption given to the husband under the law, from liability to support the wife who deserts his home.

The decree is reversed.


author: Henderson, J.,

text:
    Rehder v. Miller, Appellant.

      Negligence — Landlord and tenant — Repairs.
    Where a landlord at the request of a tenant, makes repairs which he is under no obligation to do, he is responsible for such negligence in the performance of his undertaking as causes damage or personal injuries to .the tenant.
    If a party makes a gratuitous engagement, and actually enters on the execution of the business, and so negligently does it from want of due care that another suffers damage thereby, an action will lie for this misfeasance.
    Argued Oct. 23, 1907.
    Appeal, No. 132, Oct. T., 1907, by-defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 1,135, on verdict for plaintiff in case of David H. Rehder, in' his own right, and Wanda Rehder, his wife in her own right, v. Henry Muller.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Willson, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for David H. Rehder for $500 and for Wanda Rehder, $500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Frederick A. Solernheimer, for appellant.
    — The defendant was not liable: Moore v. Weber, 71 Pa. 429; Sheridan v. Krupp, 141 Pa. 564; Phelan v. Fitzpatrick, 188 Mass. 237; Kearines v. Cullen, 183 Mass. 298; McKeon v. Cutter, 156 Mass. 296; Booth v. Merriam, 155 Mass. 521; Lynch v. Swan, 167 Mass. 510; O’Malley v. Twenty-five Associates, 178 Mass. 555; Moynihan v. Allyn, 162 Mass. 270; Cummings v. Ayer, 188 Mass. 292; Galvin v. Beals, 187 Mass. 250; Tuttle v. Gilbert Manufacturing Co., 145 Mass. 169; Bowe v. Hunldng, 135 Mass. 380; Schanda v. Sulzberger, 7 N. Y. App. Div. 221; Gregor v. Cady, 82 Me, 131; Gill v. Middleton, 105 Mass. 477; Riley v. Lissner, 160 Mass. 330; O’Dwyer v. O’Brien, 13 N. Y. App. Div. 570; Little v. McAdaras, 38 Mo. App. Rep. 187; Malone v. Laskey, L. R. (1907), 2 King’s Bench Div. 141.
    February 28, 1908:

      Benjamin Daniels, with him Maurice V. Daniels, for appellees.
    — A landlord, who at the solicitation of his tenant, gratuitously undertakes to repair the premises leased, but does it so unskillfully as to subsequently cause an • injury thereby to the tenant, is liable therefor: Gill v. Middleton, 105 Mass. 477; Gregor v. Cady, 82 Me. 131; O’Dwyer v. O’Brien, 13 N. Y. App. Div. 570; Little v. McAdaras, 38 Mo. App. 187.
   Opinion by

Henderson, J.,

The plaintiffs’ action was brought to recover damages for an injury caused by the giving way of a porch floor on which Mrs. Rehder was walking. The defendant was the owner of the premises and David H. Rehder was his tenant. The porch was at the rear of the building and extended from the house wall outwardly about eight and one-half feet. Its floor had become decayed and the defendant was notified of its condition. He sent a man who was not a mechanic to repair-it. The floor was composed of boards extending the full depth of the porch. The repairs were made by sawing off a portion of the boards composing the floor for a width of about three feet and inserting pieces of boards which the defendant provided in. place of those removed. About six months after the work was done, while Mrs. Rehder was walking across the porch to the steps leading down to the yard, the floor gave way under her and she was severely injured. The accident occurred as claimed by the plaintiffs because of the negligent and unskillful manner in which the repairs were made. There was evidence tending to show that the floor was not supported by the joist at the place where the cut was made; that a cleat or block was nailed on the side of the joist to support the ends of the boards and that this was an improper construction and insufficiently done, by reason whereof the floor was weakened and made more insecure than before. It was also shown that the boards from the door to the steps should have been the full depth of the porch and that cutting and splicing them weakened the floor. The evidence was direct and positive that the work was not properly done and that the break in the.floor occurred because the boards had not sufficient bearing underneath. Mrs. Rehder testified that about a month after the work was done she had a conversation with the defendant in regard to it in which the latter said that she need not now have any fear of the porch; that everything was all right. An issue of fact was presented as to the defendant’s negligence in making the repairs which he undertook, thereby leaving the porch in a less safe condition than before the repairs were made, in consequence of which the plaintiff received the injury complained of. This question was submitted to the jury in a clear and impartial charge. There was some dispute as to the exact place at which the floor gave way, the defendant alleging that the injury occurred on a part of the floor which had not been taken up or repaired. On the plaintiffs’ theory, however, the defendant would not be excused by that fact alone. Whether the floor which was not relaid was weakened and made more dangerous because of the manner in which the repairing was done was a question of fact in regard to which there was evidence supporting the conclusion reached by the jury. The defect complained of was not one resulting from natural decay, but is alleged to have been brought about by the unskillful method adopted by the defendant’s servant. The jury was plainly instructed that if Mrs. Rehder fell through a portion of the porch which the defendant did not undertake to repair and as to which the man who made the repairs did nothing, the defendant would not be responsible, because he did not do anything to make the condition of the floor worse than it was before. There was the further instruction that they must be satisfied that the injury did not result from anything which occurred between the time when the repairs were made and the time when the plaintiff was hurt; that if the work was properly done at the time, anything which afterward occurred that weakened the structure, resulting from the lapse of time, would not be chargeable against the defendant. The issue was thus narrowed down to an inquiry whether the defendant’s agent made the repairs on the porch in such a way as to create a risk which would not have existed if he had not done the work as he did, and this was the real issue of fact.

The appellee does not controvert the proposition that a landlord is not liable for repairs in the absence of a special agreement. The principle contended for is that where, at the request of a tenant, he does make repairs which he is under no obligation to do, he is responsible for such negligence in the performance of his undertaking as causes damage to the tenant. This has its foundation in the general rule that for an injury occasioned by want of due care and skill in doing what one has promised to do, an action may be maintained against him in favor of the party relying on such promise and injured by the breach of it, although there was no consideration for the promise. If a party make a gratuitous engagement and actually enters on the execution of the business and so negligently does it from want of due care that another suffers damage thereby, an action will lie for this misfeasance: 2 Kent’s Com. 570; Thorne v. Deas, 4 Johns. 84; Elsee v. Gatward, 5 Term Reps. 143. This responsibility extends to a landlord who makes repairs on the demised premises at or without the request of the tenant. It is entirely distinct, however, from any quéstion of liability for damages by reason of a failure to make repairs. Into the former the element of culpable negligence enters. The latter is a mere omission to act in a case where no duty exists. The law is thus stated in 1 Thompson on Negligence, sec. 1142: If he (the landlord) enters during the term for the purpose of making repairs and employs a contractor to do certain work on the demised premises, retaining the direction and control of the work, he will become liable to his tenants for damages caused by the negligence of such contractor.” To the same «effect is 2 Sherman & Redfield on Negligence, 1226. This liability was enforced in Gregor v. Cady, 82 Maine, 131, in which case the lessor was made liable for the result of repairs negligently and unskillfully performed, though gratuitously undertaken. The same principle was applied in Glickauf v. Maurer, 75 Ill. 289, where the goods of the tenant were damaged by the negligent manner in which repairs were made. The same rule was adopted in Benden v. Manning, 2 N. H. 289. In Indiana, workmen of the landlord, engaged in making repairs, fractured a board in the wood-house floor, over which the tenant had frequent occasion to pass, thereby rendering the place unsafe. A few days afterward the tenant stepped on the fractured board which broke under her weight, causing her to fall and break her leg. The landlord was held to be liable: Aldag v. Ott, 28 Ind. 542. The case of Gill v. Middleton, 105 Mass. 477, decides the same question in the same way. A portion of the demised premises was out of repair. The tenant requested the landlord to put it in repair. He said he would do so, and accordingly made repairs, employing a common laborer. The floor of the repaired premises gave way, injuring the wife of the tenant. Evidence was offered to show that the defendant did not possess the necessary skill to make the repairs; that they were unskillfully made and that the falling of the floor was the result óf the manner in which the work was done. The court held that a landlord whose neglect to use ordinary skill in making repairs on the demised premises causes a personal injury to the tenant, is liable therefor, although his undertaking to make the repairs was gratuitous and at the tenant’s solicitation. This case was referred to in Galvin v. Beals, 187 Mass. 250, and the doctrine of the case recognized. Robbins v. Atkins, 168 Mass. 45, was another case in which a landlord was held liable for the defective condition of a stairway rendered unsafe in the progress of repairs made by him on the premises. The same principle was enforced in O’Dwyer v. O’Brien, 13 N. Y. App. Div. 570, and Little v. McAdaras, 38 Mo. Appeal Reps. 187. Our attention has not been called to any case in this country which holds a contrary view. Galvin v. Beals, 187 Mass. 250, and Phelan v. Fitzpatrick, 188 Mass. 237, make the closest approach to the position of the appellant. It will be seen, however, that in neither of these cases was there evidence that the repairs made contributed in any degree to the injuries complained of or that the railings were made less secure by what was done to them, and this is the very point on which the liability turns. The landlord is not bound to repair, but if he does repair he is under obligation not to increase the danger arising from a defective condition and it is, of course, incumbent on the party complaining to show that negligence in reparation was the. cause of the damage. The other cases cited by the learned counsel for the appellant we do not consider applicable to the case in hand. In Moore v. Weber, 71 Pa. 429, the injury done was by the owner of an adjoining lot who tore down the building thereon,- thereby destroying a wall of the demised premises. It was held that the landlord was not liable for the damage which the tenant sustained by reason of the exposure of. his goods to the weather. In Sheridan v. Krupp, 141 Pa. 564, the plaintiff was not injured on the demised premises but on the steps of the tenement immediately adjoining, which belonged to the same owner. The court quite logically held that the plaintiff’s wife had' no concern in the change the landlord had made in the steps of a house which was not in her occupancy. She saw them daily, and if she regarded them as dangerous she should have avoided them. None of the other cases involves the subject of negligence in making repairs. They all relate to the omission to repair or to the maintenance of dangerous conditions on the premises, and hold the established doctrine that when a tenant leases he takes the premises as he finds them, the landlord not being responsible for repairs or improvements unless specially obligated thereto by contract. Our attention has been called to a late English case, Malone v. Laskey, L. R. (1907), 2 K. B. Div. 141, which seems to sustain the appellant’s contention. We have not had an opportunity to examine the full text of the case, but if the published synopsis correctly states the conclusion of the court it is not in harmony with the adjudicated cases in this country and ought not to be considered- an authority of sufficient weight to establish the principle in support of which it is cited.

We have given careful attention to the clear and able argument of the learned counsel for the appellant, but are of the opinion that the law is with the plaintiffs on the points in controversy.

The assignments are overruled and the judgment affirmed.


text:
    Kerr’s Estate.

      Executors and administrators — Wills—Legacy—Interest.
    Where an administrator is prevented from an immediate distribution of a legacy by reason of litigation over the ownership of «hr by third parties, and is compelled to hold the fund ready for distribution at any time the litigation may end, he is not liable for interest on the fund, where it appears that he kept it in a bank where it earned no interest. In such a case the fact that the fund was kept in the administrator's own individual account in a bank in which he was a stockholder, is immaterial, where it appears that a sum much larger than the legacy was at all times in the account, and there is nothing to show that the administrator personally profited by the deposit of the legacy in the manner stated.
    Argued Oct. 28, 1907.
    Appeal, No. 245, Oct. T., 1907, by E. Lawrence King and Alexander King, Jr., from decree of O. C. Bedford Co., dismissing exceptions to auditor’s report in Estate of Edward F. Kerr, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Alvin L. Little, Esq., auditor.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the exceptions.

      Alexander King, for appellants.
    — Where one uses the money of another, the law adds the interest as a part of the debt, and this rule applies as well to a decree in the orphans’ court as upon a judgment: Wither’s App., 16 Pa. 151; Hummel v. Brown, 24 Pa. 310; Ralston’s Est., 158 Pa. 645; Wilvert’s Est., 26 Pa. C. C. Rep. 644; Vogdes’s Est., 6 Pa. C. C. Rep. 441; Miles’s Est., 12 Pa. C. C. Rep. 383; Walthour v. Walthour, 2 Grant, 102; Biles’s App., 24 Pa. 335; Groff’s Est., 215 Pa. 586; Myers’s Est., 13 Pa. Superior Ct. 476; Norris’s App., 71 Pa. 106; Clauser’s Est., 84 Pa. 51; Dolan’s Est., 15 Pa. Superior Ct. 20; Noble’s Est., 178 Pa. 460.
    February 28, 1908:

      Frank E. Colvin, with him Frank Fletcher, for appellees.
   Opinion by

Henderson, J.,

At the time when Edward F. Kerr, administrator d. b. n. of the estate of Abram Kerns, filed his third account the balance shown to be due from the accountant was distributable into five shares, four of which were promptly paid by the accountant. The fifth share would have been payable to Georgia Edith Manning, but she died in 1893. She willed her estate to her sister and husband for life, and the remainder, subject to several contingencies, to the appellants. At the time the account was filed an issue was pending in the court of common pleas of Bedford county between Mrs. Manning’s husband and her brother, to determine who was entitled to her estate. Mr. Kerr was a member of the bar of that county in active practice and knew that this proceeding was pending. The case was tried in September, 1902, and. a point was reserved on which the court did not render a decision until March 5, 1904. Mr. Kerr died on February 11, 1904. The case was finally determined in the Supreme Court in May of that year. In the meantime an action was brought by the appellants in the court of common pleas of Somerset county to try the same question, they alleging that they were entitled to Mrs. Manning’s estate as residuary legatees, and this cáse was decided in the Superior Court in April, 1906. It is apparent from an examination of Mrs. Manning’s will that the title to the whole of her estate was involved in the litigation referred to and Mr. Kerr could not at any time before his death have safely paid the share remaining in his hands to any of the litigants. It is equally apparent that the question might be disposed of at any time and the accountant called upon at once to pay over the fund. The parties could at any time have ended the controversy and it could have been tried at an earlier date, as it is alleged, without contradiction, that the causé was continued by the parties at different terms of the court. The reserved point was held under consideration by the trial judge for nearly a year and a half, a lapse of time .which the accountant was not bound to anticipate. He was justified in assuming that the question would probably be promptly disposed of and knew that it was his duty to have the money forthcoming. His trusteeship was for distribution, not for investment, and under the circumstances of the case he.would not have been warranted in making investments which would have put the fund beyond his control at the time when distribution was . called for. It is not shown that the conditions were such that the accountant might have invested the money on short time or subject to call, nor do we think it was his duty so to do in view of the probability that he might be shortly called upon to make payment. A charge of interest against executors and administrators is not a matter of right, nor a necessary consequence of money in their possession. They are generally liable for interest on the money which they keep for a considerable time after the expiration of a year from the decedent’s death: Biles’s Appeal, 24 Pa. 335; but circumstances reheve from this liability as where they are likely to be so soon called on for the fund that it is advisable to keep it where it rhay be produced. The auditor has found that this was the situation in which Mr. Kerr was placed and the facts justify his conclusion.

It is alleged, however, that a liability arises because the administrator deposited the funds of the estate in his own name in a bank of which he was a stockholder. The fund was placed in the bank to the administrator’s individual credit, but the auditor has found that a much larger amount than the trust fund was all the time on deposit to his credit. It further appears that he made no gain from the fund. The accountant made a mistake in not keeping it separate from his own, but he did not profit by his error; nor was there any loss to the fund thereby. That he was a stockholder of the bank does not raise an implication of profit on the deposit nor form a basis for a calculation of interest. We are not informed to what extent the bank used its deposits; nor is there any evidence that the depositors received interest on their open accounts. The practice of banks depends so much upon the state of trade and the condition of credit in the community that no presumption exists which would support a judgment. No facts are presented from which a determination could be reached that any amount of profit was derived by the bank from the possession of the fund. Indeed, it is fair to presume that no profit was made, as the administrator had continually a large account subject to check. The Supreme Court refused to enter into such an inquiry in Hess’s Estate, 68 Pa. 454, and this was approved in Dick’s Estate, 183 Pa. 647. We are not persuaded that any error was committed on the facts of this case.

The decree is affirmed.


text:
    Boggs, Appellant, v. Walton.

      Judgment — Opening judgment — Payment—Evidence—Husband and wife.

    A judgment entered on a note given by a married woman for a half interest in a stable, will not be opened on the uncorroborated testimony of the defendant’s husband that he had made monthly payments to the plaintiff on account of the note, where the plaintiff denies that such payments were made on the note, but avers that they were made by the husband as rental for the other half interest in the stable leased to him by the plaintiff.
    Argued Oct. 29, 1907.
    Appeal, No. 536, Oct. T., 1907, by plaintiff, from order of C. P. Huntingdon Co., May T., 1903, No. 80, making absolute rule to open judgment in case of W. H. Boggs v. T. R. Walton and L. L. Walton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      February 28, 1908:
    Rule to open judgment. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      Error .assigned, was the order making absolute rule to open the judgment.

      H. H. Waite, for appellant.
    — The evidence was insufficient to justify the opening of the judgment:,McCullough v. Kinnan, 31 Pa Superior Ct. 557; Duffy v. Kaufman, 18 Pa. Superior Ct. 362;.Schafer’s App., 99 Pa. 246; Ziegler,v. Evans, 8 Kulp, 180; Ellis v. Ambler, 11 Pa. Superior Ct. 406; Reichenbach v. Hartlep, 15 Pa. Superior Ct. 23; Cooke v. Edwards, 15 Pa. Superior c,t. 4i2.

      Samuel I. Spyker, for appellees.
    — Where there is more than oath against oath, and it comes to a question of the weight of the evidence, it is for the court to decide to which side the scales incline; if the court is in doubt on this question, a jury should decide the matter: Com. v. Mellet, 196 Pa. 243; Jenkintown Nat. Bank’s App., 124 Pa. 337; Blauvelt v. Kemon, 196 Pa. 128; Reichenbach v. Hartlep, 15 Pa. Superior Ct. 23; Groninger v. Acker, 32 Pa. Superior Ct. 124; McCullough v. Kinnan, 31 Pa. Superior Ct. 557; Steel Iron Co. v. Jacobs; 9 Pa. Superior Ct. 122.
   Opinion by

Henderson, J.,

■The execution of the note in question is not denied, nor is it disputed that Mrs. Walton received the full consideration therefor. The allegation is that payments were made by T. R. Walton, husband of Mrs. Walton, to an amount in excess of the note. The only witness who alleges such payments is T. R. Walton. Mrs. Walton did not take any part in the management of the business, nor in the negotiation which resulted in her purchase of the half interest in the stable from the plaintiff. There is an entire absence of evidence that the plaintiff agreed to apply any of the payments made by T. R. Walton as credits on the note. The nearest the defendants come to such a claim is found in the testimony of T. R. Walton, who, in answer to the question, “What did you pay him (the plaintiff) $25.00 per month for?” said, “As I supposed to be credited on the note and on the purchase with interest.” A shadowy claim was set up that the plaintiff had sold to T. R. Walton the other half of the livery, but when directly interrogated as to whether he had made such a purchase he said that he had not, but that the plaintiff had told him that he (the witness) would have the first chance to buy it. T. R. Walton paid money to the plaintiff at the rate of $25.00 a month from June 1, 1903, and, for a short time, $30.00 per month, and it was with reference to these payments that the witness gave the answer above quoted. The plaintiff denied that any payments were made on account of the note and explained that the payments made by T. R. Walton were on account of a lease which the plaintiff had made to him of the half of the livery not sold to Mrs. Walton, the contract being, according to the plaintiff, that T. R. Walton should pay him $25.00 per month for the rent of that half and keep a horse for him in addition thereto. Walton does not expressly assert that he bought a half interest in the livery, but he acted upon .the assumption that he had so done, if we are to give full credit to his testimony. In contradiction of.his position it appears from his own evidence that the payments made by him would overpay the note about $460; that he presented a bill from the stable to the plaintiff a few days before the execution was issued which shows a balance due the plaintiff of $40.00; that he advised the plaintiff to issue an execution on the judgment and that he gave the sheriff a list of the property in the stable to be levied on. So far as payments were made for the half of the stable, which T. R. Walton assumes he was buying, the transaction was entirely independent of the note and, whatever they may have amounted to, such payments could not be used in discharge of the judgment, and in the absence of evidence that payments were made and accepted to apply on the note there is nothing entitling the defendants to relief. There is positive evidence by the plaintiff that he leased the half of the livery to T. R. Walton. It is not shown that Walton held that half by any other arrangement. Under the most favorable view which could be taken of the case it is one of oath against oath, and that does not warrant the opening of a judgment. We have nothing to do with the subject of the amount of rent alleged by the plaintiff to have been payable to him. Whether it was more than was reasonable, taking the perishable character of the property into consideration, is not shown. The parties were competent to make their own contract and if it was so made it is binding upon them. After a careful examination of the evidence we are of the opinion that the defendants failed to present a case which entitled them to have the judgment opened.

The decree is, therefore, reversed.


author: Morrison, J.,

text:
    Croyle v. Guelich.

      Equitable assignment — Draft—Parties.
    A draft drawn by a creditor upon his debtor, in favor of a third person, whether accepted or not, does not make such third person a part owner of the creditor’s claim, either in law or equity. It is not even in equity a partial assignment of the claim, unless it be drawn upon a particular fund in the debtor’s hands, or unless the draft designates the claim out of which payment is to be made.
    Where an order by a creditor on a debtor amounts to an equitable assignment to a third person, the assignee in suing on the order must sue in the name of the assignor to his own use. He cannot sue in his own name.
    Under the Act of May 10, 1881, P. L. 17, no person can be sued as an acceptor on a bill of exchange, draft or order drawn for the payment of money exceeding $20.00, unless his acceptance shall be in writing signed by himsel for his lawful agent.
    Argued Oct. 29, 1907.
    Appeal, No. 54, Oct. T., 1907, by plaintiffs, from judgment of C. P. Centre Co., April T., 1906, No. 199, for defendant non obstante veredicto in case of F. C. Croyle and S. G. Stull, trading as Croyle & Stull, v. C. H. Guelich.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      February 28, 1908:
    Assumpsit on an oral acceptance of a draft. Before Orvis, P. J.
    The facts appear by the opinion of the Superior Court.

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

      Clement Dale, with him James Nolan, for appellants,
    cited: Ruple v. Bindley, 91 Pa. 296; Moeser v. Schneider, 158 Pa. 412; Malone v. Keener, 44 Pa. 107; Elkin v. Timlin, 151 Pa. 491.

      John G. Love, with him Geo. W. Zeigler, for appellee,
    cited: Maginn v. Savings Bank, 131 Pa. 362; Reilly v. Daly, 159 Pa.. 605; National State Bank of Camden v. Lindeman, 161 Pa. 199; Clark & Co. v. Warren Savings Bank, 31 Pa. Superior Ct. 647.
   Opinion by

Morrison, J.,

In this case there was a verdict in favor of the plaintiffs for the amount of a written order, drawn October 3, 1904, by Sterling Simcox, on the defendant, in favor of the plaintiffs, for $109.55. At the trial the order was not produced, but there was sufficient evidence of its loss and of diligent search for it, to permit proof of its contents. There is evidence in the record that the defendant orally accepted the order, but there is absolutely no evidence that he ever accepted it in writing. The jury having found in favor of the plaintiff, we can assume the facts as above stated. There was evidence from which the jury could find that the defendant owed Simcox the amount of the order. The learned counsel for the defendant asked for a binding instruction in favor of the defendant. The court refused this motion and reserved the question of whether or not there is any evidence in the cause that will entitle the plaintiff to recover. After argument and consideration, the learned court below entered judgment in favor of the defendant non obstante veredicto. The single assignment of error is based on this judgment. .

The learned counsel for the plaintiffs contend that the order was an equitable assignment of the amount of it by Simcox to the plaintiffs. In our opinion, the whole evidence, as to the contents of the order, is much too vague, loose and uncertain to constitute it an equitable assignment of any certain or special fund in the hands of Guelich. “A draft drawn by a creditor upon his debtor, in favor of a third person, whether accepted of not, does not make such third person a part owner of the creditor’s claim, either in law or equity. It is not even in' equity a partial assignment of the claim, unless it be drawn upon a particular fund in the debtor’s hands, or unless the draft designates the claim out of which payment is to be made Insurance Co. v. Simmons, 30 Pa. 299 (see p. 302); see also Com. ex rel. v. Ins. Co., 162 Pa. 586; Botsford v. Lull, 30 Pa. Superior Ct. 292.

But if we assume that the order was an .equitable assignment of the amount of it in the hands of Guelich, it will not help the plaintiffs to recover. They sued in their own name, but if the order amounted to an equitable assignment, the suit ought to have been in the name of Simcox as legal plaintiff and for the use of plaintiffs. The cause of action was the debt owed to Simcox by the defendant and in such case the plaintiffs cannot sue in their own name.

In Maginn v. Dollar Savings Bank, 131 Pa. 362, the Supreme Court said: “If we treat it as an equitable assignment, it is clear that Maginn could not sue thereon in his own name.” See also Botsford v. Lull, 30 Pa. Superior Ct. 292; Moeser, adm’r, v. Schneider, 158 Pa. 412; Day and Sharpe’s Assigned Estate, 21 Pa. Superior Ct. 118.

The next serious question confronting the plaintiffs is the right to sue and recover on an order for more than $20.00, in their own name, on an oral acceptance. If we' assume that the jury found that the defendant owed Simcox on October 3, 1904, or thereafter, $109.55, and that the defendant agreed orally to pay the order of that date drawn on him, by Simcox, in favor of the plaintiffs, there could not be a legal recovery in the present suit. This for the reason that the oral acceptance of the order does not create a new cause of action on which the plaintiffs could sue and recover in their own names. The Act of May 10, 1881, P. L. 17, reads: “That no person within this state shall be charged, as an acceptor on a bill of exchange, draft or order drawn for the payment of money, exceeding $20.00, unless his acceptance shall be in writing signed by himself, or his lawful agent:” Maginn v. Dollar Savings Bank, 131 Pa. 362; Howes v. McCrea, 21 Pa. Superior Ct. 592.

Upon the whole record we reach. the conclusion that the plaintiff failed to establish a legal cause of action against the defendant and, therefore, the learned court was right in entering judgment in favor of the defendant non obstante veredicto.

The assignment of error is dismissed and the judgment is affirmed.


author: Orlad y, J.,

text:
    Westover Borough v. Pennsylvania Railroad Company, Appellant.

      Railroads — Grade crossings — Boroughs—Act of June 7, 1901, P. L. 531.
    The Act of June 7, 1901, P. L. 531, entitled “An Act relating to railroad crossings of highways, and for the regulation, alteration and abolition of grade crossings, except in cities of the first and second classes,” has no application to a case where the highway and the railroad company were in actual existence prior to the passage of the act.
    Argued Oct. 29, 1907.
    Appeal, No. 85, Oct. T., 1907, by .defendant, from decree of O. P. Clearfield Co., May 'T., 1907, No. 71, on petition for grade crossing in case of Westover Borough v. Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for grade crossing. Before A. O. Smith, P. J.
    The opinion of the Superior Court states the case. '

      Error assigned was decree allowing the crossing.

      Hazard Alex. Murray, with him Thomas H. Murray and James P. O’Laughlin, for appellant.

      February 28, 1908:

      A. H. Woodward, for appellee, filed no printed brief.
   Opinion by

Orlad y, J.,

It is not entirely clear from the evidence just when the Cambria and Clearfield Railroad was located through the borough of Westover, but it is quite clear that the borough was incorporated before that date, and that McEwen avenue was a public highway prior to 1887. In 1907 the borough council presented a petition to the court of common pleas of Clearfield county praying for an order requiring the opening, construction and maintenance of a grade crossing at the intersection of McEwen avenue in the borough of Westover with the line of the railroad passing through the borofigh, in accordance with the provisions of the act of June 7,1901, and its supplements. An answer was filed denying the necessity for the crossing at the point suggested for the reason that there were already four grade crossings in the borough over this line of railroad within a distance of 2,100 feet, which were more than sufficient to fully accommodate the traveling public, and that an additional crossing would greatly increase the danger incident to such location. It appears that this borough is nearly three miles long and two miles wide, the plotted part covering about twenty acres, two-thirds of the population of the town being on one side of the railroad, that there are from fourteen to twenty-six trains passing through the town daily.

There is a public highway contiguous to the railroad, and it is intersected by Michael street on which there is a grade crossing 435 feet south, and by Park street, 523 feet north of the proposed crossing on McEwen street. The Act of June 7, 1901, P. L. 531, the title of which is “An Act relating to railroad crossings of highways, and for the regulation, alteration, and abolition of grade crossings, except in cities of the first and second classes,” was intended to lessen rather than to encourage the creation of additional grade crossings. The second section refers to a railroad company “constructing a new line of railroad under its chartered powers across a highway.” The third section refers to the municipality “hereafter constructing a highway across an existing railroad,” and the fourth section provides, inter alia, that “Whenever it shall be desired by any railroad company constructing a new railroad, or by any municipality or authority constructing a new highway,” that certain proceedings therein outlined are necessary to bring the matter fairly before the court, which being followed, “the Court of Common Pleas shall thereupon have jurisdiction of the parties and the subject-matter of such petition, and may proceed summarily or otherwise, and upon such notice as it shall deem sufficient, to examine the matter, either by evidence, by reference to a master or to commissioners or otherwise, and if satisfied that such construction is reasonably required to accommodate the public, or to avoid excess expense in view of the small amount of traffic on the highway or railroad, etc.” This act is not intended to apply to a case where the highway and the railroad company were in actual existence prior to the passage of the act, and it is certainly not the intention of the courts to encourage the added risk of additional grade crossings which are to be permitted only in the light of an imperious necessity created by the special location. This construction of the act has been so recently given to it by the Supreme court in Ligonier Valley R. R. Co. v. Latrobe Borough, 216 Pa. 221, that it is not necessary to cite further authorities.

The judgment is reversed.