text:
    Commonwealth v. Emmers, Appellant.

      Constitutional law — Federal constitution — Fourteenth Amendment— Equal protection of the laws — Waters—Sewerage Act of April 22, 1905, P. L. 260.
    The Act of April 22, 1905, P. L. 260, entitled "An Act to preserve the purity of the waters of the state for the protection, of the public health,” does not in its fourth, eighth, ninth, tenth and eleventh sections, •relating to the discharge of sewerage into the waters of the state, violate the fourteenth amendment of the constitution of the United States which declares that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
    The act is not obnoxious to the constitutional provision, because it permits water from coal mines, or tanneries, and the sewerage from any public sewer system owned and maintained by a municipality, provided such sewer system was in operation and was discharging sewerage into any of the waters of the state at the time of the passage of the act, to continue to flow into the waters of the state, while forbidding individuals, private corporations and companies to discharge into the waters of the state sewerage of the character designated by the act.
    The alleged right of a riparian owner to pollute the waters of a stream which flows over his land, or along the boundary thereof, is not among the privileges and immunities which belong to him as a citizen of the United States, as distinguished from those of a citizen of the state in which the land and the stream are situated; nor is such alleged right a right of property of which he is deprived by the acts of 1905 “without due process of law.” A person aggrieved by the action of the commissioner of health has a right to appeal to the court of common pleas, and thus secure the protection of the “due process of law,” within the constitutional provision.
    The classification of sewerage as different from water flowing from coal mines, and also as different from water flowing from tanneries, is a question for the legislature, and the courts can only inquire whether such classification is founded in substantial distinctions having a reasonable relation to the subject-matter of the legislation.
    The classification adopted by the Act of April 22, 1905, P. L. 260, as to the character of the sewerage prohibited and that exempted from the provisions of the act is founded upon substantial and material distinctions, and is one which it is within the discretion of the legislature to make. The distinction drawn by the act between public sewer systems, owned and operated by municipalities, and sewers controlled by individuals and private corporations, is equally well founded.
    The power of a state, since the adoption of the fourteenth amendment, to enact a police regulation, for the protection of the public welfare, which restricts a noisome business or condition to certain districts, and reserves to the state or its representatives, the right to regulate and control such business is not within the prohibition of the amendment. The privilege of discharging obnoxious sewerage into the waters of the state is a matter of public concern, and it is within the police power of the state to declare that this privilege is one which ought not to be exercised by private individuals, but only by the state or its governmental agents, the municipalities, acting under the direct control of the state.

      Constitutional law — Local or special legislation — Act of April 22, 1905, P. L. 260.
    The Act of April 22,1905, P. L. 260, forbidding the deposit of sewerage in the waters of the commonwealth, does not violate that clause of article III, sec. 7 of the constitution of Pennsylvania which declares that the general assembly shall not pass any local or special law “granting to any corporation, association, or individual any special or exclusive privilege or immunity.” Municipal corporations do not come within this particular clause of the section, but are within the operation of the clause which relates to them specially an'd forbids the passing of any local or special law, “Regulating the affairs of counties, cities, townships, wards, boroughs or school districts.”
    February 25, 1907:
    Argued Nov. 12, 1906.
    Appeal, No. 206, Oct. T., 1906, by defendant, from judgment of Q. S. Montgomery Co., June T., 1906, No. 42, on verdict of guilty in case of Commonwealth v. Edward Emmers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for discharging sewerage into the Schuylkill river. Before Swartz, P. J.
    At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.
    The only question involved was the constitutionality of the Act of April 22, 1905, P. L. 260.

      Error assigned was in refusing to arrest the judgment.

      Henry Ereedley, with him E. L. Hallman, for appellant, cited: Connolly v. Pipe Co., 184 U. S. 540 (22 Sup. Ct. Repr. 431); Com. v. Sellers, 130 Pa. 32; Davis v. Clark, 106 Pa. 377.

      L. J. Palmer and Hampton L. Carson, attorney general, with them B. H. Innes, P. S. Williams and C. S. Sheive, district attorney, for appellee.
   Opinion by

Porter, J.,

The defendant was indicted and convicted, under the provisions of the Act of April 22, 1905, P. L. 260, entitled “ An act to preserve the purity of the waters of the state, for the protection of the public health,” of the offense of discharging sewerage into the Schuylkill river. The specifications of error raise but two questions. Does the statute under which the defendant was convicted violate the fourteenth amendment of the constitution of the United States, which declares that “No state shall make or enforce any law which shall abridge the privilege's or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ? ” Does the statute contravene section 7, article III., of the constitution of Pennsylvania, which prohibits the legislature from passing any local or special law, “ granting to any corporation, association or individual any special or exclusive privilege or immunity ? ”

The first section of the statute in question defines the term “ waters of the State,” whenever used in this act, as including “ all streams and springs, and all bodies of surface and ground water, whether natural or artificial, within the boundaries of the State.” The second section requires every municipality, private corporation, company and individual, supplying or authorized to supply water to the public, within the state, to file with the commissioner of health a certified copy of the plans and surveys of the waterworks, and a description of the source from which the supply of water is derived; and forbids the subsequent use of any additional source of supply, without a written permit from the commissioner of health. The third section forbids any municipal corporation, private corporation, company, or individual to construct waterworks for the supply of water to the public, or extend the same, without a written permit to be obtained from the commissioner of health, if, in his judgment, the proposed source of supply appears to be not prejudicial to the public health; this section provides for the filing of an application for the permit, to construct or extend such waterworks, with a description of the source from which it is proposed to derive the supply, and gives to the applicant, in case the commissioner of health shall refuse the permit, the right to appeal, within thirty days, to the court of common pleas of the county, which court shall, after a hearing, make an order approving, setting aside, or modifying the decision of the commissioner of health, or fixing the terms upon which said permit shall be granted.

The sections of the statute upon which the learned counsel for the appellant bases his argument that the act offends against the constitution of the United States and the constitution of the state of Pennsylvania are as follows: “Section 4. No person, corporation, or municipality shall place, or permit to be placed, or discharge, or permit to flow into any of the waters of the state, any sewerage, except as hereinafter provided. But this act shall not apply to waters pumped or flowing from coal mines or tanneries, nor prevent the discharge of sewerage from any public sewer system, owned, and maintained by a municipality, provided such sewer system was in operation'and was discharging sewerage into any of the waters of the state at the time of the passage of this act. But this exception shall not permit the discharge of sewerage from a sewer system which shall be extended subsequent to the passage of this act. For the purposes of this act, sewerage shall be defined as any substance that contains any of the waste products, or excrementitious or other discharges from the bodies of human beings or animals.” “Section 8. All individuals, private corporations, and companies that, at the time of the passage of this act, are discharging sewerage into any of the waters of the state may continue to discharge such sewerage, unless in the opinion of the commissioner of health the discharge of such' sewerage may become injurious to the public health. If at any time the commissioner of health considers that the discharge of such sewerage into any of the waters of the state maj'- become injurious to the public health, he may order the discharge of such sewerage discontinued.” “Section 9. Every individual, private corporation, or company shall discontinue the discharge of sewerage into any of the waters of the state, within ten days after having been so ordered by the commissioner of health.” The tenth section makes it a misdemeanor, punishable by fine or imprisonment, or both, to discharge sewerage into the waters of the state contrary to the provisions of this act. “ Section 11. Any order or decision, under this act, of the commissioner of health, or that of the governor, attorney general and commissioner of health, shall be subject to an appeal to the court of common pleas of the county wherein the outlet of such sewer or sewer system, otherwise prohibited by this act, is situated; and the said court shall have power to hear said appeal, and may affirm or set aside said order or decision, or modify the same, or otherwise fix the terms upon which the permission shall be granted. But the order or decision appealed from shall not be superseded by the appeal, but shall stand until the order of the court, as above.”

The defendant is the owner and operator of a hosiery mill, situated on or near the bank of the Schuylkill river, in Montgomery county, where he employs from 150 to 200 men and women. There are in the mill nine water-closets, for the use of these employees, the sewerage from all of which is by a single pipe conducted from the mill and flows into the waters of the Schuylkill river. This condition existed at the time the statute in question became a law, and the commissioner of health, on February 9,1906, served upon the defendant a notice that this discharge of sewerage was injurious to the public health, and requiring that the saíne be discontinued within ten days, as provided by the eight and ninth sections of the statute. The defendant neither abated the nuisance nor appealed from the decision of the commissioner to the court of common pleas, as under the provisions of the statute he had the right to do, and, under the provisions of this statute, the discharge of such sewerage into the Schuylkill river became, after the expiration of ten days, unlawful. The only question is whether this statute is a valid exercise of legislative power. The appellant contends that because the statute permits water from coal mines or tanneries and the sewerage from any public sewer system owned and maintained by a municipality, provided such sewer system was in operation and was discharging sewerage into any of the waters of the state at the time of the passage of the act, to continue to flow into the waters of the state, while forbidding individuals, private corporations and companies to discharge into the waters of the state sewerage of the character designated by the act, the law is obnoxious to the constitutional provisions.

The only alleged privilege or immunity of the appellant with which the statute in question could possibly interfere is that of discharging sewerage from his land into a stream which constitutes one of its boundaries. The right of the defendant to navigate the waters of the state remains unabated. His right to use the water to supply the natural wants of those lawfully upon the land, or to consume it for manufacturing purposes is not affected by this legislation. The alleged right of a riparian owner to pollute the waters of a stream which flows over his land or along the boundary thereof is not among the privileges and immunities which belong to him as a citizen of the United States, as distinguished from those of a citizen of the state in which the land and the stream are situated. This statute does not, therefore, fall within the prohibition of the first clause of fourteenth amendment of the constitution of the United States, which declares that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: ” Slaughter House Cases, 83 U. S. 36; Bradwell v. Illinois, 83 U. S. 130; Giozza v. Tiernan, 148 U. S. 657; Commonwealth v. Finn, 11 Pa. Superior Ct. 620.

The appellant does not contend that this act violates the second clause of the fourteenth amendment which provides that “nor shall any state deprive any person of life, liberty, or property, without due process of law ” and it is manifest that such contention could not, if made, be sustained. The ownership of riparian lands does not involve the ownership of the waters which flow over or along the margin of such lands. The owner of the land has a right to use the water for certain lawful purposes and this right is a natural one, inherent in the ownership of the land, but he can in no sense be said to have an absolute ownership of the water, as such. He has a right to the ordinary use of the water of the stream for the purpose of supplying the natural wants, for such things as are necessary to the preservation of life and health, of those occupying the land, even if such uses result in a substantial diminution of the stream. His right to usé the water of the stream for manufacturing or other purposes, having no necessary relation to the use of his land, is limited to so 'much of the water as will not materially or sensibly diminish its quantity: Haupt’s Appeal, 125 Pa. 211; Lord v. Meadville Water Company, 135 Pa. 122; Railroad Company v. Pottsville Water Company, 182 Pa. 418; Filbert v. Dechert, 22 Pa. Superior Ct. 362. The riparian owner must permit the water to flow, subject to the diminution of its quantity resulting from these reasonable uses, in its natural channel, unpolluted, to lower riparian owners, who take it subject to the same rights and the same restrictions. The erection of anything in the upper part of a stream of water, which poisons, corrupts or renders it offensive and unwholesome, is actionable: Howell v. McCoy, 3 Rawle, 256 ; Wheatley v. Chrisman, 24 Pa. 298 ; McCallum v. Germantown Water Company, 54 Pa. 40 ; Commonwealth ex rel. v. Russell, 172 Pa. 506. When, in the development of the natural resources of the land, the water from a mine must necessarily and unavoidably pass into a stream, and that consequence could only be avoided by an expenditure which would amount to a practical prohibition of the development of the land, the injury to a lower riparian owner resulting from such unavoidable mixture of the water of the-mine with that of the stream is a private injury for which there is no remedy: Pennsylvania Coal Company v. Sanderson, 113 Pa. 126, but whether this extreme exception to the general rule that a riparian owner has no right to pollute the waters of a stream could prevail against the right of the public is an entirely different question: Commonwealth ex rel. v. Russell, supra. There can, however, be no question in the present ease. The pollution caused by the defendant did not result from the development of any natural resources of his land, nor was it unavoidable. He never had a right, recognized by law, to discharge sewerage, of the character shown in this case, into the stream which flowed past his land; he had, it is true, continued the practice for fourteen years, but it was from first to last a wrongful act and he took the chances of having to answer for its consequences. Had the practice resulted in an injury to a lower riparian owner the wrong would have been a private one, for which the individual or individuals injured might have had redress by action, if the public had a right to take from this stream pure and unpolluted water for drinking purposes, and found in it the germs of disease, coming from this sewer of the defendant, his offense would be a public one, for which he could be indicted and punished, at common law: Commonwealth v. Yost, 197 Pa. 171. The defendant was not, prior to the enactment of this statute, possessed of a right of property, in the privilege of discharging this sewerage into the stream, recognized by law. He was not, therefore, deprived of “ liberty or property,” within the meaning of the second clause of the fourteenth amendment. But even if the defendant had a property right in the privilege of discharging sewerage into the stream, he was not by this statute deprived of that right “ without due process of law.” The statute provided that the defendant, because he had been so discharging sewerage prior to the approval of the act, should be permitted to continue the practice until, “ in the opinion of the commissioner of health, the discharge of such sewerage may become injurious to the public health;” that upon notice of such decision by the commissioner of health the .defendant should discontinue the discharge of sewerage within ten days, and that after that period the discharge of such sewerage should be unlawful. The commissioner of health is a sworn official, and it is presumed that, under his oath of office, his duties as the representative of the commonwealth will be properly performed. The delegation by the legislature to a state officer of the power to deternjine some fact or state of things upon which the law makes its own action depend, is not an unwarranted delegation of legislative power: Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355. . The law imposes upon the officer in question the duty of enforcing the health laws of the commonwealth, and this statute clothes him with the power and imposes upon him the duty of ascertaining whether any sewer, maintained by an individual, company or private corporation, is discharging into the waters of the commonwealth material which is a menace to the public health. The act does not make the decision of this officer final, it gives the defendant the right of an appeal to the court of common pleas, a constitutional tribunal clothed with full law and equity powers, and gives him in that court an opportunity to be heard, upon the question whether or not the sewer so maintained involves danger to the public health. The statute placed at the disposal of the defendant this process of law to have determined in a court of competent jurisdiction the primary question, whether the material which he was discharging into the stream had become a menace to the public health; and before he could be convicted of the offense created by the statute he was entitled to a trial in the court of quarter sessions, a court of record in which all misdemeanors are triable, and the burden was upon the commonwealth to establish that he had discharged sewerage into the stream, after the fact that such discharge involved a menace to the public health had been determined in the manner by the statute provided. The fourteenth amendment is not to be so construed as to deprive the states of the power to so amend their laws as to make them conform to the wishes of citizens, as they may deem best for the public welfare, without bringing them into conflict with the supreme law of the land; this power of change is limited by the fundamental principles laid down in the constitution. “ Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the state: ” Walker v. Sauvinet, 92 U. S. 90. The statute afforded the defendant a full and fair opportunity to have tried in a court of competent jurisdiction every question that arose, at the various stages of the proceedings, leading up to his conviction. The statute afforded, to every individual, private company and corporation the same opportunity for atrial, under like conditions, in every case ; and there can in this case be no allegation that the courts have denied any right which the statute conferred. The conviction of the defendant resulted from due process of law: Holden v. Hardy, 169 U. S. 366.

Does the statute contravene the provisions of the third clause of the fourteenth amendment “No state shall .... deny to any person within its jurisdiction the equal protection of the* laws ” ? The appellant contends that the act of 1905 conflicts with this provision of the constitution of the United States, for the reason that it permits “ water pumped or flowing from coal mines or tanneries, and sewerage from any public sewer system, owned and maintained by a municipality, provided such sewer system was in operation and was discharging sewerage into any of the waters of the State at the time of the passage of this act,” to continue to be discharged into the waters of the state, provided that no such sewer system be extended subsequently to the passage of the act. The statute was passed in the exercise of the police power of the state. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society. All sorts of restrictions and burdens are imposed under this power, and when these are not in conflict with any constitutional prohibition, or fundamental principle, they cannot be successfully assailed in a judicial tribunal. That the preservation of the waters of the state from pollution, involving danger to health, is a proper subject for the exercise of the police power, cannot be seriously questioned. Proceeding to an examination of the subjects excepted out of the operation of the statute, which exceptions the defendant asserts involve a denial of the equal protection of the laws, to those not within the exceptions, we must inquire whether the exceptions are founded upon substantial distinctions, having reasonable relation to the subject-matter of the statute. That there might be no question as to the'kind of sewerage that the legislature intended to forbid individuals, companies and private corporations from discharging into the waters of the state, when it had been determined, in the manner provided by the statute that such discharge had become dangerous to the public health, the statute embodied a specific definition in these words, “ Sewerage shall be defined as any substance that contains any of the waste products, or excrementitious or other discharges from the bodies of human beings or animals.” The exception of water flowing from coal mines was unnecessary, such water does not naturally contain any of the ingredients of sewerage as defined by the statute. The water flowing from a coal mine may contain sulphate of iron, sulphate of lime or other chemicals in solution, which would make it unpleasant for drinking purposes, and perhaps injurious to health, but it could not contain the specific germs of those diseases which sometimes abound in sewerage of the character defined by the statute.- Should the water from a coal mine be mixed with sewerage of the kind prohibited, the compound would no longer be within the exception, but- would come within the prohibition of the statute. The same rule is to be applied to water flowing from tanneries. Such waters would undoubtedly be offensive to both taste and smell, but the only waste products of animals which they would carry would be such' as appertained to the hides. Those waste products have been long immersed in and saturated with chemical solutions, which give to them a character essentially different from the waste products of a slaughter house or the excretions of human beings. The waters flowing from the tannery are only within the exception so long as they remain unmixed with other materials. Whether the processes employed in the tanning of hides would, if applied to sewerage of the kind to which this statute applies, result in the destruction of the germ life with which it is asserted by science that the dejecta of human beings sometimes abounds, it is not for us to affirm nor deny. One has been subjected to a prolonged process in which powerful chemicals are made use of, and the other has not been subjected to such a process. It is not for the court to determine whether the classification adopted by the legislature was wise or unwise; we are only to inquire whether it is founded in substantial distinctions having some reasonable relation to the subject-matter of the legislation. “While the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests : ” Holden v. Hardy, 169 U. S. 366 ; Lawton v. Steele, 152 U. S. 133. What is necessary for the protection of the public health is primarily a legislative question. Whether the introduction of sewerage, of the kind prohibited by the statute, into the waters of the various streams of the commonwealth by private individuals, companies or corporations, could be conducted in such a way, or with such secrecy, as to baffle ordinary inspection, or whether it involves such dangers to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the discharge of such sewerage as does not involve danger 'to the public health, are questions of fact and of public policy, which belong to the legislative department of the government: ■Powell v. Pennsylvania, 127 U. S. 678. The question in each case is whether the legislature has adopted the statute in the exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression, or spoliation of a particular class. “ From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits — for supplying 'water, preventing fires, lighting district, cleaning streets, opening parks and many other objects. The regulations for these purposes may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon’ anyone, but to promote with as little individual inconvenience as possible the general good, though, in many respects, necessarily special in their character, they do not furnish just ground for complaint, if they operate alike upon all persons and property, under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment : ” Barbier v. Connolly, 113 U. S. 27. The exemption of the water discharged from tanneries, which must be construed as including only the liquid resulting from the operation of tanning Avithout the admixture of such sewerage as is prohibited by the statute, involved only a classification of the kind of sewerage with which the legislation dealt. It did not exempt the tanner from liability to answer to any loAver riparian owner for any injury which the discharge of the Avater from the tannery might cause, nor did it exempt him from prosecution under the law as it formerly existed in case the discharge of the Avaters from his tannery became a public nuisance. The exemption was not limited to then existing tanneries, but this defendant or any other person who hereafter engages in the tanning business is entitled to its protection, to the extent that it is not affected by this statute in any manner whatever.

The classification adopted by the statute, as to the character of the seAverage prohibited and that exempted from the provisions of the act, was founded upon substantial and material distinctions, and was one which it was within the discretion of the legislature to make.

When Ave consider all the circumstances involved, the distinction drawn by the statute between public seAver systems, owned and operated by municipalities, and sewers controlled by individuals and private corporations, would seem to be equally Avell founded. A municipality is a governmental agent, and, although its existence is dependent upon the legislative will, while it exists it represents, within its sphere, the sovereign power of the state. The public sewer systems OAvned and maintained by the municipalities of the state have been constructed at the public expense and under express' legislative authority. The necessity of providing some system of house drainage and of general sanitation for densely populated cities, and of providing for the inspection, regulation and control of those matters by the state or the municipalities, as th¿ representatiAms of the state, in the interest of the public health, had imperatively demanded the exercise of the police power of the state, and in the exercise of that poAver the legislature had authorized the construction of these public sewer systems. Any person whose property suffers an injury because of the discharge of such public sewer systems into the waters of the com.monwealth is, under the law of the state, entitled to compensation for such injury: Good v. Altoona, 162 Pa. 493. The statute with which we are now dealing does not deprive the private owner of that right to compensation for injury to his property. These public sewer systems and the house drains which lead into them have by the legislation of the state been made subject to the regulation, inspection and control of the municipalities, and the duty of exercising such supervision has been imposed upon the municipal authorities. Density of population has been recognized as a proper basis for the classification of communities with regard to the necessity for and regulation of house drainage. “ In its nature it is a definition and regulation of the police power on a subject which is one of municipal concern. All the cases agree that such subjects are the principal basis of the legitimate classification of cities. That the control and regulation of cesspools and drainage in general are more important and require different conditions in closely built up neighborhoods from those sufficient for the open country does not need discussion. And for the same reasons the regulations may require to be different in cities of different volume and density of population. . . . The subject being one which is germane to the proper basis of classification its regulation and application to one or more classes are within the legislative discretion: ” Beltz v. Pittsburg, 26 Pa. Superior Ct. 66 ; s. c., 211 Pa. 561. This necessity for house drainage, under state inspection, regulation and control, in densely populated communities, was one of the elements of the problem which confronted the legislature when in the exercise of its discretion it determined that a necessity had arisen for the exercise of the police power to preserve the purity of the waters of the state, for the protection of the public health. If, as contended by the appellant, the only solution of the problem was to prohibit the discharge of all sewerage, under any conceivable circumstances and conditions, into the waters of the state ; then the legislature had no discretion to frame an act which would, without unnecessary oppression of any individual, impose regulations to guard the public health against one source of danger, unless it at the same time deprived the inhabitants of all densely populated communities of reasonable protection against another source of danger to the public health. Such a construction of the fourteenth amendment would deprive the states of all power to make police regulations necessary to meet the varying needs and dangers of the different districts and communities within their borders. The most densely populated city in the commonwealth could not be permitted to discharge its sewerage into an estuary of the sea, unless at the same time all owners of riparian lands, from where the waters of the state have their origin in mountain rivulets to where, as rivers, they meet the tides of the ocean, were permitted, without state inspection, control or regulation, to pollute the waters for their own private profit. This contention of the appellant cannot be sustained. The authority of a state to make police regulations, to provide for the health of those residing in the different districts subject to its jurisdiction and to classify those districts according to the widely varying circumstances and conditions therein prevailing, so long as that classification is based upon conditions having a substantial and reasonable relation to the general subject-matter of the regulation, cannot be questioned, and such classification is not within the prohibition of the fourteenth amendment of the constitution of the United States. “The question in each case is whether the legislature has adopted the statute in the exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression, or spoliation of a particular class: ” Holden v. Hardy, 169 U. S. 366; Barbier v. Connolly, 113 U. S. 27.

The power of a state, since the adoption of the fourteenth amendment, to enact a police regulation, for the protection of the public welfare, which restricts a noisome business or condition to certain districts, and reserves to the state, or its representative, the right to regulate and control said business, is not within the prohibition of the amendment: Slaughter House Cases, 83 U. S. 36. The privilege of discharging obnoxious sewerage into the waters of the state is a matter of public concern, and it was within the police power of the state to declare that this privilege was one which ought not to be exercised by private individuals, but only by the state, or its governmental agents, the municipalities, acting under the direct control of the- state. That the state reserved, to itself a privilege, which it denied to individual citizens, did not deprive this appellant, or any other person, of the equal protection of the laws. This statute requires every individual, corporation, or municipality supplying the public with water to file in the office of the health department of the state a statement of its source of supply. It requires every municipality which, at the time of the adoption of the statute, was maintaining a system of sewerage, to file in that department a plan thereof. These provisions necessarily result in making a matter of public record, in the office of the commissioner of health, the sources from which the public water supply of every community in the state is taken, and a like record of every opening of a public sewer system into the waters of the state. Should an epidemic develop in any community, the health authorities immediately have accurate information as to the source from which the public water supply of that community is derived, and whether any public sewer system is discharged into that water. The state legislation requiring physicians in municipalities to make reports to the health authorities of all cases of disease, will place at the disposal of the commissioner of health information as to the health conditions existing in the municipalities using the various public sewer systems. The commissioner of health and officers under his control will thus constantly have a large part of the information necessary to deal with the health conditions of any community.

■ The contention that this statute violates that clause of article III., sec. 7, of the constitution of Pennsylvania, which declares that, the general assembly shall not pass any local or special law; “granting to any corporation, association, or individual any special or exclusive privilege or immunity,” cannot be sustained. Municipal corporations do not come within this particular clause of the section, but are within the operation of the clause which relates to them specially and forbids the passing of any local or special law; “ Regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” Municipal and quasi-municipal corporations are the agents of the state, authorized to perform such governmental duties as are by the state delegated, and there must be, from the very nature and purpose of their organization, delegated to them governmental powers, such as those of taxation and police, which it would be manifestly improper to delegate to an individual or private corporation. This is clearly recognized by this section of the constitution, which places them in a distinct clause and constitutes them a class by themselves. Legislation which confers upon municipalities powers and privileges, properly relating to municipal affairs, while denying such powers to individuals and private corporations, does not violate that provision of the constitution of the state which the appellant seeks to invoke: Commonwealth v. Vrooman, 164 Pa. 306 ; Clark’s Estate, 195 Pa. 520.

The judgment is affirmed and it is ordered that the defendant appear in the court below to the end that the sentence be carried into effect.


source: Caselaw Access Project

author: Mokrison, J., Rice, P. J.,

license: Public Domain

text:
    Commonwealth v. Walker, Appellant.

      Criminal law — Statutory rape — Age of prisoner — Evidence.
    On the trial of an indictment for statutory rape of a female under sixteen years of age, where the commonwealth rests without offering any evidence of the age of the prisoner, or as to his identity as the person indicted, and without offering his appearance in evidence, it is reversible error for the court to submit the age of the prisoner to the jury on his appearance, without more.

      Criminal law — Practice, 0. & T. — Arrest of judgment — Sufficiency of the evidence.

    A motion in arrest of judgment is not the proper mode of raising the question as to the sufficiency of the evidence to warrant a conviction.
    Submitted Oct. 2, 1906.
    Appeal, No. 15, April T., 1907, by Frank B. Walker, from judgment of O. & T. Allegheny Co., Dec; T., 1905, No. 69, on verdict of guilty in case of Commonwealth v. Frank B. Walker.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for statutory rape.
    Before Evans, J.
    The facts are stated in the opinion of the Superior Court.

      March 5, 1907:
    The court charged in part as follows :
    [In order to make, the defendant guilty of rape under this statute, for having connection with this girl with her consent, or without force, you must find that he is either sixteen years of age or over sixteen years of age. We have no evidence on that subject except the appearance of the young man who is in court. It might be difficult, it might be impossible, for the commonwealth to find evidence direct as to the date of the birth of the defendant in such a case as this. A man might come a stranger into a community, and it would be absolutely impossible for anybody to find out, or get any evidence at all, except from his own appearance, as to the age of the defendant. Therefore, it is the privilege of the jury, the defendant being before them, to judge by his appearance.]
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1) in overruling motion in arrest of judgment; (2) portion of charge as above, quoting it; (4) in not instructing the jury that the defendant could be found guilty of fornication and bastardy, and (6) in submitting the case to the jury.

      W. A. Hudson, for appellant.
    No appearance nor paper-book for appellee.
   Opinion by

Mokrison, J.,

The defendant, Frank Walker, was indicted, tried and convicted of statutory rape under the provisions of the Act of Assembly of May 19,1887, P. L. 128: “ If any person shall have unlawful carnal knowledge of a woman, forcibly and against her will, or who, being of the age of sixteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, with or without her consent, such person shall be adjudged guilty of felonious rape, and, on conviction, be sentenced to pay a fine not exceeding 11,000, and undergo an imprisonment by separate or solitary confinement at labor, or by simple imprisonment, not exceeding fifteen years.”

Defendant’s counsel moved in arrest of judgment on the ground, that there was no evidence that the defendant was of the age of sixteen years and upwards.

The first assignment of error goes to this question but it is verjr informal and only amounts to a legal conclusion that the court erred in overruling the motion in arrest of judgment. The motion itself and what the court said in disposing of it are not quoted in the assignment. But if we consider this assignment sufficient in form, it is still bad. A motion in arrest of judgment is not the proper mode of raising the question as to the sufficiency of the evidence to warrant a conviction: Commonwealth v. Mock, 23 Pa. Superior Ct. 51; Commonwealth v. Bradley, 16 Pa. Superior Ct. 561; Commonwealth v. Hanley, 15 Pa. Superior Ct. 271; Commonwealth v. Schollenberger, 17 Pa. Superior Ct. 218; Sadler’s Criminal Procedure in Penna., chapter 23, sections 515, 516 and 517; Delaware Division Canal Co. v. The Commonwealth, 60 Pa. 367 ; Aronson v. Cleveland & P. R. R. Co., 70 Pa. 68. The first assignment of error is not sustained.

The second, third and sixth assignments raise the question of whether the defendant could be legally convicted of rape by proof of illicit connection with a female under sixteen yea,rs of age, with her consent, without competent evidence that the defendant, described as a young man, was sixteen years old and upwards. The commonwealth rested without offering any evidence of the age of the defendant, nor was any evidence offered identifying the defendant to the jury. The defendant offered no evidence, and his counsel presented to the court the following point: “ The defendant requests the court to instruct the jury that the commonwealth having failed to prove that the defendant was over the age of sixteen years at the time of the commission of the alleged offense, that the verdict of the jury should be acquittal.” The learned court refused this point and charged the jury that the defendant could not be convicted unless he was sixteen years or more of age at the time of the carnal connection with the girl who was at 'the time under sixteen years of age. The court also charged that we have no evidence on the subject of the defendant’s age, except the appearance of the young man who is in court; therefore, it is the privilege of the jury, the defendant being before them, to judge by his appearance.

The indictment contained four essential ingredients, each of which must be proved by evidence to warrant a conviction: (a) The jurisdiction of the court; (b) that the female was under sixteen years of age at the time of the illicit sexual intercourse with her; (c) that the defendant had illicit sexual intercourse with her ; (d) that the defendant was at the time sixteen years of age and upwards. The above requirements were sustained by competent evidence, except (d) the age of the defendant. As to this essential point there was no evidence offered. The defendant was not identified and pointed out to the jury by any witness and it cannot be said, with any degree of certainty, that the jury saw the right man or boy, when they were told by the court to judge of his appearance. Again, the commonwealth gave no notice during the trial that the appearance of the defendant would be called to the attention of the jury as a method of determining his age. This question was' first presented to the jury by the court in the charge, and the defendant then had no opportunity to reply to it. We are of the opinion that, as the case was tried, the defendant had the right to rely on the fact that the commonwealth had offered no proof of his age and, therefore, his point should have been affirmed.

It is remarkable that the case was allowed to go to the jury without the offer of some evidence tending to show the age of the defendant. The learned court said in the charge it might be difficult, it might be impossible, for anybody to find out or to get any evidence at all, except as to his own appearance as to the age of the defendant. But the commonwealth could have called witnesses who, after looking at the defendant, could have- testified as to their opinion of his age. “ A witness may testify to a person’s age or intoxication merely from his appearance : ” 1 Wigmore on Evidence, section 660. If this authority is sound, and we think it is, then there was no excuse for the commonwealth resting the case without some evidence of the age of the defendant.

We are not aware that this exact question has been decided by our Supreme or Superior Courts. But in Oliver v. Commonwealth, 101 Pa. 215, the principle ruled comes quite close to our question. That was an indictment under the statute for seducing a female, of good repute, under twenty-one years of age, with illicit connection, under promise of marriage. The commonwealth rested without proving affirmatively the good repute of the female. There was a conviction in the court below, but the Supreme Court in reversing the judgment said : “ The good repute of the female alleged to have been seduced is thus made an essential ingredient of the offense, and hence it is not only necessary that it should be specifically averred in the indictment, but it was incumbent on the commonwealth to prove the fact affirmatively by such evidence as would justify the submission of that question to the jury. The ordinary presumption of her good repute for chastity, without more, was insufficient for that purpose.”

We are unable to see that under the statute of 1887 the age of the defendant was of less importance than the good repute of the female. The age of the defendant was an essential ingredient of the offense, and the commonwealth offered no evidence to the jury tending to prove that he was sixteen years of age and upwards at the time of the commission of the offense.

The rule as to exhibiting the defendant to the jury and allowing them to draw inferences of fact from his appearance, has been much discussed in the courts of our sister states, and their decisions upon the subject are by no means uniform; some courts holding it proper to let the jury find facts from the appearance of the defendant, while courts of equal standing, iu other states, hold just the contrary.

An examination of many authorities and several text-writers, among the latter, Professor Wigmore on Evidence, leads to the conclusion that the better rule is, the defendant may be identified and his appearance called to the attention of the court and jury as a part of the commonwealth’s case and the jury may take into consideration such appearance in determining whether the defendant is of sufficient age to be guilty under the statute. And the same rule obtains in regard to whether the female is under or over the age prescribed by the statute. 2 Wigmore on Evidence, sec. 1168, is strongly against the doctrine that it is error to make autoptic preference of the thing itself or the person before the tribunal, trying the case, because the losing party cannot obtain a proper revision of the proceedings by the higher court. This author says: “ The general result is, then, that it is no objection to the process of autoptic preference, at a view, or in court, that the bill of exceptions cannot be made to transcribe faithfully the sources of belief thus laid before the jury.”

Among the citations by this author we find: Flower v. R. R. Co., 132 Pa. 524. The Supreme Court (p. 528) said: “ It appears that the jury viewed the premises in dispute, and were subsequently instructed by the court that .they could not ‘ render a verdict upon their own judgment from that view,’ but that ‘ after you have weighed all the evidence, aided by your own view of the premises, you are to give the plaintiff just, full, and fair compensation for the lands this railroad company has taken, and for the injury to the remaining ground if you find it injured.’ The learned judge further said: ‘You are only permitted to view the land, that you may the better understand the testimony. The value of the land you are to ascertain from the witnesses.’ We see no error in this. The jurors were sworn to render a true verdict according to the evidence! It was never intended that the view of the jury should be substituted for the evidence, and that they should make up their verdict from the view in disregard thereof. The object of the view is, as was correctly said by the learned judge, to enable them the better to understand the testimony; to weigh conflicting testimony, and thus aided to arrive at a sound and just conclusion.” See also Hoffman v. R. R. Co., 143 Pa. 503; and Shano v. Bridge Co., 189 Pa. 245.

Commonwealth v. Arner, 149 Pa. 35, is a case where the Supreme Court plainly recognized the necessity of proving the age of the defendant in order to raise fornication with a female under sixteen years of age to a felony. In the opinion the court (p. 39) said: “ If the age of the prosecutrix,'and the age of the appellant, appeared in evidence, on his trial for a misdemeanor, he would be within the letter, as he is within the principle and spirit, of section 51, of our Act of March 31, 1860, P. L. 427, which provides that, ‘ if, upon the trial of any person for any misdemeanor, it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor. It is clear that the Supreme Court assumed that to convict the defendant of the felony, his age must be proved by competent evidence. In the present case we have seen that there was nothing put before the jury, as evidence, from which they could find that the defendant was of the age of sixteen years and upwards. .

In 2 Wigmore on Evidence, section 1154, it is said: “ A person’s appearance as evidence of age (for example, of infancy, or of being under the age of consent to intercourse) is usually regarded as relevant, and if so, the tribunal may properly observe the person brought before it.”

In 1 Wigmore on Evidence, section 222, p. 275, it is said: “ Experience teaches us that corporal appearances are approximately an index of the age of their bearer. Particularly for the marked extremes of age and youth. In every case such evidence should be accepted and weighed for what it may in each case be worth. In particular the appearance of an alleged minor may be considered in judgment of his age. A contrary rule would be pedantically overcautious.”

Our conclusion in the present case is that the commonwealth might have called witnesses to identify the defendant and then have offered his appearance in evidence for what it was worth, as a part of the case. But when the defendant is a boy, his appearance, without more, must be considered as weak evidence upon which to rest a verdict of a felony where an essential ingredient of the offense is that the defendant’s age was sixteen years and upwards. If the age of the defendant is to be submitted to the jury on his appearance, without more, the court should see that autoptic preference is made of the defendant in an orderly manner so that he may have the opportunity of presenting evidence and argument as to his age, if he so desires. Whether or not the appearance of the defendant, without more, should go to the jury, as evidence of his age, must be determined by the trial judge in each particular case and this discretion ought to be exercised with due caution so that a mere boy may not be found guilty of the felony defined in the act of 1887 on the guess of a jury as to his age.

The above considerations lead us to the conclusion that where the commonwealth relies on the appearance of the defendant to sustain a material ingredient of the offense charged, the defendant should be identified and his appearance, relied on, put in evidence in the regular manner of offering other evidence. Indeed, we do not see that autoptic preference can be made properly of a person except by identifying and calling the attention of the court and jury-to the appearance of the person relied on as evidence in the issue being tried.

The second, third and sixth assignments of error are sustained to the extent of holding that the court erred in submitting the age of the defendant to the jury on his appearance, without more, the record failing to show that the defendant was identified and his appearance called to the attention of the jury as a part of the commonwealth’s case.

We have thus far considered this case on the theory, adopted by the court below, that it was a case of statutory rape without more. The point presented by the defendant’s counsel and the charge of the court clearly show that the case was tried and ruled on the first count in the indictment, utterly ignoring the second count for fornication and bastardy. The court might have refused the defendant’s point on the ground that it asked for a binding instruction for the acquittal of the defendant while there was sufficient evidence to carry the count for fornication and bastardy to the jury. But not finding a word in the charge in regard to the second count justifies us in considering the case from the standpoint adopted by the court and from that standpoint the defendant, by his point, sufficiently raised the question which we have hereinbefore considered. If the learned court had refused the defendant’s point because it asked for a verdict of not guilty and had then properly instructed the jury as to their duty under the first count, and then proceeded to submit the second count to the jury, under appropriate instructions, and there had been a conviction for fornication and bastardy, the defendant would have had no grounds of complaint.

The fourth assignment raises the question of the neglect of the court to instruct the jury that they could acquit the defendant of the felony and find him guilty of fornication and bastardy. But the court was not requested to so charge and it seems quite probable that the defendant’s counsel purposely refrained from asking such instruction under the belief that the jury would bring in a general verdict of not guilty. The court ought to have instructed the jury that they might convict on the second count, but in view of the course adopted by the defendant’s counsel, at the trial, it now comes with bad grace for him to assign error because the court overlooked the second count in the indictment. If the record was free of error as to the first count, and there had been a conviction thereunder, we would not sustain the fourth assignment of error: Commonwealth v. Peach, 170 Pa. 173. But in view of the mistake of the ■trial judge in ignoring the second count the case must go back for another trial, and, therefore, the fourth assignment is sustained.

The fifth assignment does not require consideration and it is not sustained.

The judgment is reversed with a v. f. d. n.

Rice, P. J.,

dissenting :

As this case was triable exclusively in the oyer and terminer, it is to be presumed that the defendant was present in court, as the record states, and under the circumstances it is to be reasonably inferred that he was where he could see the jury and the jury could see him. It is apparent from the charge of the court that this was the case, and it is not to be supposed that the trial judge would have submitted the case to the jury in the manner he did unless it was so. Further, when the court told the jury that they might judge of his age from his appearance, no suggestion was made by his counsel that he was not where he could be seen by them, and no application for a new trial was made upon that ground, or the ground of surprise. As I view the case, it turns upon the question whether it is error and ground for reversal to permit a jury to find from the appearance of a defendant on trial before them for this offense that he was sixteen years of age, there being no other evidence introduced by either side as to that matter. Professor Wigmore says upon this subject : Experience teaches us that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each cage worth. In particular, the appearance of an alleged minor may be considered in judging of his age; a contrary rule would be pedantically over-cautious: ” 1 Wigmore on Evidence, sec. 222. Numerous decisions are cited in support of the doctrine of the text, and amongst these, Commonwealth v. Hollis, 170 Mass. 433; State v. Arnold, 13 Iredell, 184, and Hermann v. State, 73 Wis. 248, are particularly pertinent here. Reference should also be made to the Pennsylvania case of Snodgrass v. Bradley, 2 Grant, 43, where in an action brought for injuries to the plaintiff’s son it was held that there was no error in the instruction that the infancy of the son might be reasonably inferred, and generally, that “ there is no error in permitting the jury, in a proper case, to infer the infancy of a witness who has given testimony in their presence.” It is worthy of notice that neither the report of the case, nor the opinion, shows that the appearance of the witness in that case was formally put in evidence, or called to the attention of the court and jury as part of the plaintiff’s case in chief. Presuming in the case at bar, as we must, that the jury obeyed the instructions of the court, their verdict necessarily implies that they were convinced by the defendant’s appearance, beyond a reasonable doubt, that he was of the statutory age. For aught we know, this fact was so apparent that there was no room for doubt. If, therefore, this conviction is to be set aside upon appeal (I say nothing as to the authority of the trial court to set it aside upon a consideration of the sufficiency of the evidence furnished by the defendant’s appearance in the particular case), it must be upon the ground, I respectfully submit, that there is an inflexible rule of law which makes it incumbent on the commonwealth to produce other evidence of the defendant’s age on the trial of every indictment for this offense. The question, therefore, is important, and being firmly of opinion that such rule has not been established by controlling authorities, and that it would be unsound in principle, I am constrained to record my dissent from the judgment about to be entered. Judge Pobteb. and Judge ObladY authorize me to say that they concur in the foregoing dissent.


author: Morrison, J.,

text:
    Blaine v. Philadelphia, Appellant.

      Negligence — Municipalities—Sidewalks—Icy condition of pavement.

    ' A city is not liable for personal injuries to a person falling on an icy sidewalk, where it appears that there were no ridges at the place of the accident, but merely a general slippery condition due to the natural result of rain and freezing during the previous twenty-four hours.
    Argued Oct. 5, 1906.
    Appeal, No. 61, Oct. T., 1906, by defendant from judgment of C. P. No. 5, Phila. Co., Dec. T., 1904, No. 3,734, on verdict for plaintiff in case of Margaret Blaine and David G. Blaine v. City of Philadelphia.
    Before Bice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, J J.
    Reversed,
    Trespass to recover damages for personal injuries.
    Before Martin, P. J.
    At the trial it appeared that Mrs. Margaret Blaine fell on an icy pavement on December 29, 1904, in the city of Philadelphia, and sustained serious injuries to her wrist. It appeared that at the place of the accident there were no ridges, but merely a general slippery condition caused by rain and freezing during the previous twenty-four hours.
    The court submitted the case to the jury.
    Verdict and judgment for plaintiff for $700. Defendant appealed.

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

      Thos. Raeburn White, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.
    — A municipality is not liable for the consequences of an accident caused by a general icy condition of the street: McLaughlin v. City of Corry, 77 Pa. 109 ; Mauch Chunk Borough v. Kline, 100 Pa. 119; City of Erie v. Magill, 101 Pa. 616; Dehnhardt v. Philadelphia, 15 W. N. C. 214; Syringer v. Philadelphia, 22 W. N. C. 132; Hanson v. Warren Borough, 22 W. N. C. 133; Decker v. Scranton City, 151 Pa. 241; Wyman v. Philadelphia, 175 Pa. 117; Manross v. Oil City, 178 Pa. 276; Garland v. Wilkes-Barre, 212 Pa. 151.
    March 5, 1907:
    The accident to the plaintiff was caused by a mere slippery condition of the sidewalk, for which there can be no recovery.
    The ice which caused the accident was formed the preceding night and no sufficient notice to the city was shown: Harrington v. City of Buffalo, 121 N. Y. 147 (24 N. E. Repr. 186); Taylor v. City of Yonkers, 105 N. Y. 202 (11 N. E. Repr. 642).

      Walter Thos. Fahy, with him William, W. Lúeas and Thomas A. Fahy, for appellees.
    — -The case is ruled by the cases of Manross v. Oil City, 178 Pa. 276 and Decker v. Scranton, 151 Pa. 241.
   Opinion by

Morrison, J.,

This was an action of trespass for personal injuries sustained by Margaret Blaine on one of the sidewalks of the defendant. The plaintiffs having recovered, the defendant moved for judgment non obstante veredicto, which judgment was refused and judgment entered upon the verdict. The only assignment of error is, “ the lower court erred in refusing the motion for judgment non obstante veredicto upon the whole record.”

The controlling question is whether there was sufficient proof of negligence on the part of the city officials to warrant submitting the case to the jury.

The learned counsel for the appellees says the case is ruled by the cases of Manross v. Oil City, 178 Pa. 276, and Decker v. Scranton City, 151 Pa. 241. If his case, under the evidence, does not fall within the principle of those cases it is very clear that the learned court erred in refusing judgment for the defendant non obstante veredicto. The substance of the case of Decker v. Scranton City is clearly indicated by the following excerpt from the charge, by Judge McCollum: “A defective construction of the road in conjunction with such an accumulation of ice cast on the municipality the duty of removing the obstruction upon notice. If the water from the road and h}'drant came upon and ran over the road as described in the testimony of Morgan and Boland and the ice complained of was formed by it, the city cannot escape responsibility on the plea that the ice had not ‘ so accumulated in hills and ridges as to form an obvious physical obstruction to travel.’ ” In that case it was found that the street had been in the condition in which it was on the day of the accident for from two to four weeks. It is very plain that the recovery was sustained by the Supreme Court, not because the ice formed in hills and ridges, but because the slippery condition of the street was attributable to the negligence of the city officials.

In Manross v. Oil City the controlling principle is not different from Decker v. Scranton City. In that case there was an accumulation of ice upon the sidewalk, not amounting to hills and ridges, but it was more than would have accumulated there from natural causes. The evidence tended to show that a gutter ran along the edge of the sidewalk and that it had been obstructed for such a length of time that the city was visited with constructive notice, and the negligence of the city officials in permitting the obstruction to remain caused the water to flow across the sidewalk and thus formed the ice upon which the plaintiff slipped and was injured. Upon this state of facts the defendant’s counsel presented the following point: “ The defendant city is not liable for an injury caused by reason of the slippery condition of the ice and snow upon its walks, unless such injury is caused by the accumulation of ice and snow into hills and ridges so as to render passage dangerous. Answer : Refused as a legal proposition. A city may be liable for an accident caused by the slippery condition of its streets caused by the negligence of its officials, even where the ice and snow do not form into hills and ridges.”

The learned counsel for both parties to the case at bar seem to have some difficulty with Manross v. Oil City. The writer presided at the trial of that case and he then thought, as he does now, that the question raised by the above point was strictly in the case, and that the answer thereto rests on sound legal principles. However, it is unnecessary to discuss this matter, as the Supreme Court unqualifiedly affirmed that case, and it is in entire harmony with Decker v. Scranton City.

The cases cited by the appellant holding that there can be no recovery for an accident caused by the general slippery condition of the streets all rest on the principle that such slippery condition was not caused by the independent negligence of the city or borough officials. Among the cases cited by the appellant we find McLaughlin v. City of Corry, 77 Pa. 109, where it is said: “ A municipality cannot prevent the general slipperiness of its streets, caused by the snow and ice. during the winter, but it can prevent such accumulations thereof, in the shape of ridges and hills, as render their passage dangerous. It is no more difficult to remove or level such obstructions than it is those occasioned by the water and earth during the summer.” Another case is Borough of Mauch Chunk v. Kline, 100 Pa. 119, where the Supreme Court reversed the court below for allowing a recovery because, “upon a careful examination of the evidence,- and especially of the testimony of the plaintiff himself, we cannot find that his fall was owing to any hill or ridge, for the nonremoval of which the borough ought to be responsible in damages.” In short, that was a case of the mere slippery condition and smoothness of the surface and that condition was not traceable to any negligence of the borough authorities. In the City of Erie v. Magill, 101 Pa. 616, there was clearly a ridge of ice and snow extending across the sidewalk where the plaintiff was injured and she might have recovered but for her own contributory negligence.

In Wyman v. Philadelphia, 175 Pa. 117, a recovery was had in the court below and the judgment was affirmed by the Supreme Court. But in that case the doctrine was carefully adhered to, “ that the city was not liable for a mere ordinary slippery condition of the sidewalks resulting from the sudden formation of ice, but that if the snow and ice existed in ridges and little hills and the pavement was permitted to remain in that condition for a length of time sufficient to charge the city with knowledge of the situation, and the obstruction was not removed, there might be liability for an accident happening in those circumstances.”

We now refer briefly to the facts controlling the case at bar. The clear and undisputed evidence fails to show any such ridges or hills of ice, at the place of the accident, as would be evidence per se of negligence on the part of the city officials. On the contrary, Mrs. Blaine’s own testimony, as well as that of other witnesses, establishes the fact, beyond all doubt, that the pavement where she fell was simply smooth and slippery. Moreover, the testimony is positive and conclusive of a state of facts leading to a logical and .irresistible inference that the ice causing the accident was formed during the night of the twenty-eighth and the morning of the twenty-ninth of December. On the twenty-eighth the temperature was as high as fifty-four degrees, and the street was sloppy and not slippery, and in the evening at six o’clock the temperature was down to thirty degrees. And on the twenty-ninth at eight o’clock A. M. it was twenty-three degrees. On the twenty-eighth it rained, and it is perfectly clear that the smooth ice, on which Mrs. Blaine fell, was formed between seven o’clock p. M. of the twenty-eighth and noon of the next day, when the temperature was thirty degrees. The accident occurred on the afternoon of the twenty-ninth. It is not pretended that the city had actual notice of an unsafe condition of this pavement, and the time after the smooth ice formed was too short for constructive ■notice. Our own cases and those of several other states seem to settle the law that this case ought not to have gone to the jury. The ice formed on the pavement was not such as the city was bound to remove on the twenty-ninth, even on notice. It was the natural result of rain and freezing : Dehnhardt v. City of Philadelphia, 15 W. N. C. 214; Springer v. City of Philadelphia, 22 W. N. C. 132; Hanson v. Borough of Warren, 22 W. N. C. 133.

In Garland, Appellant, v. City of Wilkes-Barre, 212 Pa. 151, Mr. Justice Elkin said : “ A general slippery condition of the street at a public crossing caused by the snow and ice in the winter time is not sufficient to charge the municipality with liability, for the obvious reason that it cannot prevent it: McLaughlin v. City of Corry, 77 Pa. 109. In the case at bar the testimony of the appellant does not disclose more than a slippery condition of the crossing at the time of the accident, with some slight ridges of ice caused by wagons and sleighs passing over.” The doctrine of that case seems to us conclusive against the plaintiffs in the case at bar.

The cases of Harrington v. City of Buffalo, 121 N. Y. 147, and Taylor v. City of Yonkers, 105 N. Y. 202, are directly in point, and they show that the court of appeals of New York and our Supreme Court are substantially in harmony as to the liability of cities and boroughs for accidents caused by accumulations of snow and ice on pavements or sidewalks.

In failing to prove that the slippery condition of the pavement was chargeable to the negligence of the city officials, the plaintiffs entirely failed to bring their case within the principle of Decker v. Scranton City, 151 Pa. 241, and Manross v. Oil City, 178 Pa. 276.

The assignment of error is sustained, the judgment reversed and judgment now granted in favor of defendant.


text:
    Foard v. Rath, Appellant.

      Negligence — Licensee—Evidence—Contributory negligence.

    Where a person, goes into a factory building and enters the office by the ordinary and usual passageway to it, and subsequently after leaving the office goes into a room where he knew he had no right to be, and, in an alleged attempt to reach the office again, walks through an opening-made in the wall and is injured, he cannot recover damages for his injuries from the owner of the factory; and this is the case whether the room was light or dark.
    In entering or leaving a building, the visitor is bound to use the ordinary and customary place of ingress and egress, and if he adopts some other way he becomes a mere licensee and cannot recover for defects outside of or not substantially adjacent to the ordinary way.
    Argued Oct. 10, 1906.
    Appeal, No. 127, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1905, No. 2,469, on verdict of plaintiff in case of Andrew J. Foard v. Charles Rath.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ralston, J. '
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $750. Defendant appealed.

      Urror assigned was in refusing binding instructions for defendant.

      Alfred T. Steinmetz, with him George Wentworth Carr, for appellant.
    — Ordinarily the existence of negligence is a question of fact for the jury, but when the facts are uncontroverted their legal effect is a question of law for the court: Delaware, etc., R. R. Co. v. Cadow, 120 Pa. 559; Oil Co. v. Torpedo Co., 190 Pa. 350; Huey v. Gahlenbeck, 121 Pa. 238; Jackson v. Grayson, 13 Pa. Dist. Rep. 467; Bube v. Weatherly Borough, 25 Pa. Superior Ct. 88.
    March 5, 1907:
    The plaintiff was a licensee: Greis v. Mfg. Co., 209 Pa. 276; Stevens v. Nichols, 155 Mass. 472 (29 N. E. Repr. 1150) ; Reardon v. Thompson, 149 Mass. 267 (21 N. E. Repr. 369); Gibson v. Sziepienski, 37 Ill. App. 601; Iron Works v. Larger, 11 Ind. App. Ct. 367 ; Faris v. Hoberg, 134 Ind. 269 (33 N. E. Repr. 1028); Pelton v. Schmidt, 97 Mich. 231 (56 N. W. Repr. 689) ; Flannigan v. Glucose Co., 11 N. Y. Supp. 688; Zoebisch v. Tarbell, 92 Mass. 385; Mallock v. Derby, 76 N. E. Repr. 721; Quantz v. Ry. Co., 49 S. E. Repr. 79.
    The plaintiff undoubtedly was negligent: McKee v. Bidwell, 74 Pa. 218; Sparks v. Siebrecht, 45 N. Y. Supp. 993 ; Brenstein v. Mattson, 10 Daly, 336; Hutchins v. Priestly Express Wagon Co., 61 Mich. 252 (28 N. W. Repr. 85); Bedell v. Berkey, 76 Mich. 435 (43 N. W. Repr. 308) ; Bemisch v. Roberts, 143 Pa. 1; Sickles v. Philadelphia, 209 Pa. 113; Lerner v. Phila., 13 Pa. Dist. Rep. 165; Robb v. Connellsville Boro., 137 Pa. 42; McIlhenney v. Phila., 214 Pa. 44; Siegler v. Mellinger, 203 Pa. 256.

      Henry B. McLaughlin, for appellee,
    cited: Bennett v. R. R. Co., 102 U. S. 577; Indiana, etc., Ry. Co. v. Barnhart, 115 Ind. 399 (16 N. E. Repr. 121); Riegert v. Thackery, 212 Pa. 86; Stable Co. v. Traction Co., 7 Pa. Superior Ct. 104; Devlin v. Beacon Light Co., 198 Pa. 583; Matthews v. R. R. Co., 18 Pa. Superior Ct. 10.
   Opinion by

Morrison, J.,

This is an action of trespass based on the alleged negligence of -the defendant. At the close of the evidence counsel for defendant asked the court to charge that, “ Under all the evidence in the case, your verdict should be for the defendant.” This point was refused and an exception granted for defendant and a bill sealed. The single assignment of error is in substance that the court erred in refusing said point.

The two controlling questions thus raised are, (a) the negligence of the defendant, and (b) the contributory negligence of the plaintiff.

To present this case fairly it seems necessary to make a somewhat lengthy statement of the facts. On January 18, 1905, the plaintiff, a man aged seventy-four years, drove,'with a teamster, to defendant’s place of business, fronting south on Laurel street in Philadelphia. Defendant’s place consisted of two adjoining buildings. The eastern one was used by him as a factory, and access thereto is by large double doors, described as a gateway by a witness, which opened practically the whole front of the first floor. The western building was used by defendant as an office, access being had thereto through a door from the street, about four feet west of the large double doors above mentioned. About eight feet from the front walls of the buildings, cutting off a portion of the office, was a shaft for a hand lift or dumb waiter used by defendant to lower and raise articles to and from the cellar. Access to this lift was through a door from the office, which, when not in use, was kept closed and fastened on the office side. On January 16, 1905, the defendant’s son, Burton, was set at work making an opening in the brick wall, directly opposite the door in the office leading to the lift, so the lift could be used, also, from the eastern building. On the 18th, when the plaintiff came to the factory and was hurt, this opening was substantially made but not finished, as Burton was trimming the rough brick and smoothing the opening on the sides and overhead. At this time this hole was about five feet three inches high, and a little less than three feet wide. There was a passageway leading from the back part of the factory building into the rear of the office. On the latter date the plaintiff entered the defendant’s office, by the regular way from the street, to deliver some tin cans which he had sold to the defendant, and, after making known his business, plaintiff went out of the same door through which he had entered, to attend to delivering the cans. This was not the first time the plaintiff had gone in and out of the office by the regular entry from the street. When the plaintiff came out, his teamster had backed the wagon up to the curb near the large doors of the factory. At this time, Charles Rath, a son of the defendant, came out and assisted the driver in putting the cans inside of the factory. While this was being done, plaintiff walked into the factory where the cans were being placed (this being the room where the hole in the brick wall was being made). This hole was about eight or ten feet from the wide front entrance.

The manner of the plaintiff going into and the time of his remaining in the factory room is important, because he had really no business in that room; he was not invited there, and the evidence shows that defendant objected to persons being therein, because he was manufacturing polish by a secret method and the plaintiff probably knew that visitors were not allowed in that room. While the cans were being unloaded, the plaintiff and his teamster say that he asked the defendant to change a five dollar bill, so that he might pay his driver. The defendant took the money, and, as plaintiff testifies, entered the hole in the wall and disappeared. Soon thereafter, one of the defendant’s sons went through the hole and another one soon came out of it and at once went back therein. About thirty seconds after defendant took the money, plaintiff walked into the hole, fell down the shaft and was hurt.

Plaintiff contends that he was induced to walk into the hole 'in the wall by seeing defendant and two of his sons go that way, as he supposed, to the office. But he explicitly testifies that no one invited or told him to go that way to the office. He also contends, contrary to all of the other witnesses, that this hole was very dark; and he further says that he (did not see anjr open- door in the opposite side of the shaft.

The positive and uncontradicted testimony is that the door on the office side of the shaft was closed and bolted. The positive testimony of the defendant, two of his sons and two other witnesses is that the defendant and his sons did not go through the hole at all, and that the plaintiff never saw anybody go through that hole into the office. The testimony of all of the witnesses, but the plaintiff and his driver, is that the factory room was, on that afternoon about 3:30 o’clock, perfectly light on account of the large doors opening the whole south end of the building; that the opening in the wall was in plain sight of any person in the factory room. But the jury must have found against, as it seems to us, the strong weight of the evidence, that the room was dark at the hole in the wall and. that the plaintiff saw the defendant and his sons passing through that hole and that he then walked into it and was in j ured. In our opinion, it makes little difference which horn of the dilemma the plaintiff accepts. If it was dark, how could he see parties going through that opening, and how can he justify walking into a dark hole in the side of a building, for the purpose of going into an office, where a few minutes before he h^.d entered and come out by a perfectly safe way, and this way was only four feet from the large doors of the room in which he stood, and those doors were wide open at the time. His own evidence is clear that he did not see the defendant and his sons go through the hole into the office; he only saw them disappear therein and come out of it. In our opinion, there was nothing in this to invite or justify him in walking into this, as he says, dark hole in the wall. If it was light he could readily see it was unsafe and not an entrance to the office. If it was dark, he was guilty of gross negligence in stepping into it without feeling or examining to ascertain if there was a bottom to it, or a passageway leading to the office. The width of the shaft, from the brick wall to the door on the office side, was twenty-two inches. The door on the office side of the shaft was closed and, therefore, when the plaintiff was in the opening in the brick wall, his face was not over two feet from this door. He could not possibly see any open way to the office. If it was dark, he ought to have reached out in front, and if he had done so his hand would easily have reached the door. If he had stood in the brick opening and felt with his foot for the floor in front of him, he would have found nothing there to step on.

The defendant’s point should have been affirmed on the ground of the contributory negligence of the plaintiff. If there had been a hole in the floor of a dark room where the plaintiff had a right or license to be and he walked into it accidentally, a very different question would have been presented. He did not walk into the hole in the wall accidentally, but purposely and recklessly.

Upon the other question, we do not think the defendant was proved guilty of negligence. This was not a room to which visitors and persons having business with the defendant were invited and the plaintiff really had no business in that room at all. ITis business was in tlie office. His driver and defendant’s son put the cans in the factory room, and the plaintiff has not shown any sufficient reason for going into that room and walking about in the dark, as he claims he did. Moreover, the defendant’s son was engaged in working at the opening in the wall, while the plaintiff was there, and it was not finished. This son had only left the hole for a very brief time to coal a boiler which he had in charge.

There must have been dirt and debris about the opening, showing that it was not finished, and it must have been visible because it was light enough for the man to work there. Again, this hole was less than five feet six inches in height, and the plaintiff was nearly that high and he wore a high silk hat and he must have stooped to walk into the hole or his hat must have struck the top of it, and this should have'admonished him to pause and examine.

A very careful examination of the testimony convinces the writer that the jury ought to have found that the room was light and the plaintiff could have seen the hole and its character, if he had used reasonable care. And that he saw nobody pass through that opening or come out of it. He probably saw persons using the rear entrance to the office, which was several feet back of the hole in the wall. But the jury must have believed the plaintiff on these questions and, therefore, we will briefly consider the case on the theory that the plaintiff had a license to be in that room ; that it was dark about the hole in the wall and that he saw defendant and others going through it. But, as we have already indicated, any view we can take of plaintiff’s conduct convicts him of gross negligence.

This view renders it unnecessary to spend time on the question of the negligence of the defendant. The burden rested on the-plaintiff to prove this negligence by clear and satisfactory evidence. Upon the facts we think he signally failed to establish this essential ingredient of his case. Under all of the cases cited by counsel for the appellee and the general trend of our own cases and many well-considered cases in other 'states, we are led to this conclusion :

“ In entering or leaving a building, the visitor is bound to use the ordinary and customary place of ingress and egress, and if he adopts some other waj he becomes a mere liceirsee and cannot recover for defects outside of or not substantially adjacent to the ordinary way: ” Shearman and Redfield’s Negligence, 5th ed., p. 1219.

Upon the plaintiff’s own statement of the facts the court ought to have held that there was not sufficient evidence of the negligence of the defendant to carry the case to the jury : Delaware, L..& W. R. R. Co. v. Cadow, 120 Pa. 559.

In Huey v. Gahlenbeck, 121 Pa. 238, it is stated in the syllabus : “ One who is injured when lawfully upon the premises of another, but does not show either the direct cause of the injury or that it occurred through the negligence of the defendant, is not entitled to recover damages for the injury.”

In Shearman and Redfield’s Negligence, 5th ed., p. 1220, it is said: “ A mere passive acquiescence on the part of the owner or occupant, in the use of real property by others, does not involve him in any liability to them for its unfitness for such use. They take all risks upon themselves, and have no right to complain of any defect in the premises, even though caused by the direct act of the owner.”

This doctrine of licensee is recognized in Pennsylvania. “ A mere licensee must avoid patent dangers at his peril upon premises such as an open pit not concealed otherwise than by darkness : ” Greis, Appellant, v. Hazard Mfg. Co., 209 Pa. 276; see also Stevens v. Nichols, 155 Mass. 472.

In Hart v. Grennell, 122 N. Y. 371, it was held that, “ placing a truck in the rear of a store in plain sight was not negligence so as to render the owner liable for injury of a customer who unnecessarily followed the clerk to that part, of the store, and in doing so stumbled over the truck.”

In Johnson v. Wilcox, 135 Pa. 217, our Supreme Court held, in a case much like the present one, that the plaintiff was injured by his own negligence and that it was not error-in the court below to direct a verdict for the defendant. i

In Bedell v. Berkey, 76 Mich. 435, the plaintiff endeavored to deliver a machine upon the defendant’s premises. He entered from the rear of the building and, trying the door that he usually entered, found it locked. He turned to the adjoining door and entered into a small room. Seeing a light ahead of him he took it for an opening into the room into which the other door led, but in stepping through it fell into an elevator shaft. The court held, that he could not recover.

The appellee cites McKee v. Bidwell, 74 Pa. 218, but we think the principle there is easily distinguished from the present case.

In Pierce v. Whitcomb, 48 Vt. 127, the plaintiff went at night to the defendant’s house to buy oats. The defendant had no oats which he wished to sell, but by the plaintiff’s importunity he agreed to sell some, and they went together to the barn where the oats were kept. While the defendant was seeking a measure, the plaintiff walked about the barn in the dark, fell through a hole in the floor and was injured. He was held guilty of contributory negligence.

In Bemisch v. Roberts, 143 Pa. 1, the court said (p. 7) : “ Under this testimony, it matters nothing whether the plaintiff saw and knew of the defect in the buggy, and nevertheless used it, or whether he did not see what it was his plain duty to see.”

We think the doctrine of Robb v. Connellsville Borough, 137 Pa. 42, convicts the plaintiff of contributory negligence; so also Easton v. Philadelphia, 26 Pa. Superior Ct. 517 ; see also McIlhenney v. Philadelphia, 214 Pa. 44.

In Siegler v. Mellinger, 203 Pa. 256, it was held as stated in the syllabus: “ A person who walks on the side of, and not in the middle of an unfamiliar country road on a dark night, is presumed to be negligent.”

The doctrine in Sickels, Appellant, v. Philadelphia, 209 Pa. 113, as stated in the syllabus, convicts the plaintiff of contributory-negligence : “ Where a woman in broad daylight approaches a slippery ridge eight inches high across the sidewalk, and with full opportunity to see the ridge, steps upon it, falls and is injured, she is guilty of contributory negligence, and cannot recover damages from the city.”

Riegert v. Thackery, 212 Pa. 86, cited by plaintiff, is not in point under the facts in the present case.

City of Harrisburg v. Saylor, 87 Pa. 216, cited by plaintiff, is a clear authority that where the facts are undisputed the court should declare the law thereon.

Heh, Appellant, v. Consolidated Gas Co., 201 Pa. 443, cited by plaintiff, is not in point, except that it holds, “ A binding instruction is proper where the evidence is not conflicting and presents the facts on which the case depends clearly and distinctly.”

We think this rule applies to the present case, considering every word of the plaintiff’s testimony as true.

We have examined the cases cited by plaintiff, to wit: Little v. Telegraph Co., 213 Pa. 229 ; Steck v. City of Allegheny, 213 Pa. 573; Fetterman v. Rush Township, 28 Pa. Superior Ct. 77; Whaley v. Bank, 28 Pa. Superior Ct. 531; Aument v. Telephone Co., 28 Pa. Superior Ct. 610 ; Devlin v. Beacon Light Co., 198 Pa. 583, and Matthews v. Pittsburg and Lake Erie Railroad Co., 18 Pa. Superior Ct. 10, and find nothing in them inconsistent with our views of the present case.

Being clearly of the opinion that the plaintiff failed to establish the negligence of the defendant and that the plaintiff’s own theory convicts him of contributory negligence, we sustain the assignment of error.

Judgment reversed, and judgment is now directed in favor of the defendant.


text:
    Lamb v. Prettyman, Appellant.

      Contract — Acceptance—Performance—Notice.
    Where acceptance of a proposition is by a promise, it must presently follow the offer and notice of it be given to the other party. But where acceptance is by act, the mere performance of the act, without notice, concludes the contract.
    Where an owner of real estate asks a real estate broker “to get a deal,” it is not necessary for the real estate broker to assent in words. If he procures a purchaser he makes a contract by performance.

      Practice, C. P. — Reservation of question of law — Evidence.
    The Act of April 22, 1905, P. L. 286, does not change the rule as to the province of the court and jury. The conflicting testimony and inferences to be drawn from it are for the jury, and not for the court, either at the trial or on the motion for judgment non obstante veredicto.
    Argued Oct. 10, 1906.
    Appeal, No. 79, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Phila. Co., June. T., 1905, No. 1,731, on verdict for plaintiff in case of Tbyele M. Lamb and Benjamin C. Lamb, copartners, trading as Lamb & Company, v. Charles B. Prettyman.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit to recover commissions on sale of real estate.
    Before Brégy, J.
    At the trial it appeared that the defendant owned and controlled a number of houses in West Philadelphia, and that he exchanged them for a house at 2112 Spruce street. The introduction between the defendant and the owners of the Spruce street house was made by one of the plaintiffs. There was evidence that, prior to the introduction, the defendant mentioned the West Philadelphia houses to the plaintiffs, and asked them to get a deal on the houses. The defendant denied that he ever employed the plaintiff to act for him.
    Verdict and judgment for plaintiff for $1,036.07. Defendant appealed.

      ¡Error assigned among others was in refusing to enter judgment upon defendant’s motion for judgment non obstante veredicto.

      J. Quincy Hunsieher, for appellant.
    — A real estate broker who sues for commissions, must establish his employment, either by previous authority, or by acceptance of his agency, or adoption of his acts: Henderson v. Sonneborn, 30 Pa. Superior Ct. 182; Samuels v. Luckenbach, 205 Pa. 428; Keys v. Johnson, 68 Pa. 42; Earp v. Cummins, 54 Pa. 394.
    To establish a contract by acceptance of a proposition, it must appear that the party making the proposition was notified of the acceptance: Johnston v. Fessler, 7 Watts, 48; Shupe v. Galbraith, 32 Pa. 10; East Penna. R. R. Co. v. Hiester, 40 Pa. 53 ; Powers v. Curtis, 147 Pa. 340; Huber Mfg. Co. v. Smithgall, 19 Pa. Superior Ct. 641.

      Stanley Folz, with him Leon S. Folz, for appellees.
    — The ease was for the jury: Dixon v. Daub, 17 Pa. Superior Ct. 168; Dalmas v. Kemble, 215 Pa. 410.
    Acceptance may either be by promise or by act: 9 Cyc. Law & Procedure, 257; Hare, Contracts, p. 304; Weaver v. Wood, 9 Pa. 220; Cooper v. Altimus, 62 Pa. 486; Patton’s Exr. v. Hassinger, 69 Pa. 311; Train v. Gold, 22 Mass. 380 at 385; Hoffman v. R. R. Co. 157 Pa. 174. '
    March 5, 1907:
   Opinion by

Morrison, J.,

This is an action of assumpsit brought by plaintiffs, licensed real estate brokers, to recover commission on the sale or exchange of real estate of the value of $96,000, by the defendant; the plaintiffs alleging that they were employed by the defendant and that they were instrumental in bringing the seller and buyer together and thus earned 1% on said sum.

The defendant denies the employment and denies his liability to the plaintiffs but we do not understand, from the evidence, that he seriously contends that the plaintiffs rendered him no services at all.

At the trial the defendant’s counsel presented seven written points and he has nine assignments of error. A careful reading of the testimony leads us to the conclusion that it was sufficient to carry the question of the defendant’s liability, and the amount thereof, to the jury. And that the material questions were submitted to the jury, by the learned court, in a clear and adequate charge which isTree from reversible error. The burden of the defendant’s contention is that there was not sufficient evidence of a contract between the parties. Whether or not the defendant agreed and was liable to pay the plaintiffs 1% on the $96,000, was a question of fact for the jury. If the evidence was not entirely precise on this point, it was sufficient to permit a jury to draw a legitimate inference that there was a contract and that the plaintiffs performed their part of it, and earned the amount claimed.

This case, under its evidence, is ruled by Dixon and Co. v. Daub, 17 Pa. Superior Ct. 168, where we said: “It was a case, however, where the jury might legitimately draw the inference that the plaintiff was not a mere volunteer but was induced to render the services by the acts and declarations of the defendant. What was in the minds of the parties, that is, what they understood their, relation to be, was matter of inference and was for the jury to determine.” In that case we also said: “ There is in every case triable by jury a preliminary question of law for the court, whether or not there is any evidence from which the fact sought to be proved may be fairly inferred’; if there is, that is sufficient to send the case to the jury, no matter how strong may be the proofs to the contrary. In deciding this preliminary question the court must of course take the evidence as true, with every inference favorable to him who has the burden of proof which a jury may reasonably draw : Sidney School Furniture Co. v. Warsaw School District, 122 Pa. 494, etc.”

The Act of April 22, 1905, P. L. 286, does' not change the rule as to the province of the court and jury. The conflicting testimony and inferences to be drawn from it were for the jury, and not for the court, either at the trial or on the motion for judgment non obstante veredicto : Delmas, Appellant, v. Kemble, 215 Pa. 410; see also Reel v. Elder, 62 Pa. 308.

The counsel for defendant contends that when Prettyman asked Lamb “ to get a deal,” Lamb did not agree to do so and therefore there was no contract. The answer to this is that it was not necessary for Lamb to say in words that he would act; he could make it a contract by performance, and there is evidence that he did procure a party to deal with the defendant. Where acceptance of a proposition is by a promise, it must presently follow the offer and notice of it be given to the other party. But where acceptance is by act, the mere performance of the act, without notice, concludes the contract. The present is the case of an acceptance by the performance of an act: 9 Cyc. Law and Procedure, 270; Hare on Contracts, 304; Weaver v. Wood, 9 Pa. 220 (Gibson, C. J.); Patton’s Executor v. Hassinger, 69 Pa. 311.

In Bornstein v. Lans, 104 Mass. 214, we find a case upon this point which is practically identical in principle with the present case.

We find nothing in the assignments of error calling for special notice, except the ninth. The court substantially charged the jury, in the general charge, as requested in the seventh point (ninth assignment), and then answered said point in the negative. If the learned court had read this point to the jury and refused it, the jury might have been in grave doubt as to whether they should follow the instruction in the charge or in the point and answer. But we conclude that the seventh point was not read to the jury, but that it was answered and filed pro forma. The learned court said to the jury : “ I have stated in my general charge as fully as occasion requires, therefore I will consider them declined, except as answered in the general charge.” This we thinlc prevented the jury from being misled by the refusal of the seventh point and that no harm was done to the defendant by its refusal. Again the court said to the jury : “ Declinations are made to most of the points, because they have been answered in the general charge.”

We think the able counsel for defendant underestimates the value of the testimony tending to show the contract between the parties, and the circumstances surrounding the transactions giving rise to the plaintiff’s claim.

The case was well tried and the record is free of reversible error.

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