text:
    Mangold, Appellant, v. Isabella Furnace Company.

      Vendor and vendee — Payment of taxes — Protection of title.

    Where a vendor of land has instituted a suit against the vendee to recover the purchase money, and pending the suit has paid the taxes which have been levied against him as owner of the title held as security for the payment of the purchase money, such vendor may, after the decision of the suit in his favor, recover the taxes thus paid, and it is immaterial that no demand was made upon the vendee to pay the taxes, and no seizure of the vendor’s goods was made by the collector to enforce payment thereof.
    Argued April 23, 1906.
    Appeal, No. 147, April T., 1906, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1905, No. 325, on case stated in suit of John F. Man-gold v. Isabella Furnace Company.
    Before Rice, P.'J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Case stated to determine the liability for taxes.
    The case stated was as follows :
    The parties to this case stated, by their attorneys, agree to the following facts :
    That in February, 1901, the Isabella Furnace Company, the defendant, by its duly authorized agent, took an option on plaintiff’s lots in the Erdner plan in Etna borough, which option was duly accepted by said company before its expiration, but said company, upon the tender of the deed for said property, refused to accept the deed and pay the purchase money. Whereupon, on May 21, 1902, at No. 419, July Term, 1902, in the court of common pleas No. 2 of Allegheny county, suit in assumpsit was brought by plaintiff against defendant on said contract to recover the purchase money with interest. In that suit, the only defense made by defendant was the statute of frauds, defendant claiming that the agreement of sale was not sufficiently evidenced by writing. The lower court held that there was a sufficient writing to satisfy the requirements of the statute and judgment was entered for plaintiff, for the amount claimed, with interest. Upon appeal by defendant to the Supreme Court this was affirmed. Defendant thereupon accepted the deed previously tendered by plaintiff and paid the judgment with interest and costs. After suit had been begun by plaintiff in the lower court, namely, after May, 1902, certain county and borough taxes upon the lots which were the subject of the suit, fell due. Plaintiff, thereupon, to protect the lots and to preserve the title clear and unencumbered, paid them, without, however, any demand having been made of plaintiff for their payment by the county or borough or by defendant, and without any demand having been made of defendant by plaintiff, or any notice having been given to defendant by plaintiff. The amount of these taxes paid by plaintiff on these lots, all of which were taxes falling due after the commencement of suit by plaintiff against defendant, was $32.55. Of this amount, $21.97 was paid before the trial of that suit, and $10.58 was paid after the trial and before decision reached by the Supreme Court on appeal. Plaintiff, when the Supreme Court had affirmed the decision of the lower court, and at the time of delivery of deed to defendant, demanded of the defendant that it reimburse plaintiff for the taxes thus paid by plaintiff while suit was pending, but this defendant refused to do, claiming that plaintiff had paid the taxes voluntarily, without demand having been made therefor by the borough or county, and without being requested by defendant to pay them. Defendant also claimed that this matter was res judicata, by reason of the suit brought by plaintiff against defendant at No. 419, July Term, 1902, and the judgment recovered therein by plaintiff. These taxes all fell due after that suit was. brought, and were not claimed or considered in that suit.
    The lots, which were the subject of this suit, are and always have been vacant and unproductive of rental, and no income has ever been received from the same of any kind whatsoever. Plaintiff was always willing and ready to have defendant take possession of the property upon payment of the purchase money.

      The following question is therefore submitted for the determination of your honorable court:
    Whether plaintiff, on the foregoing statement of facts, is entitled to recover any amount in this action.
    If the court shall answer the foregoing question in the affirmative, then the court is respectfully requested to enter judgment in favor of the plaintiff for the amount due; if in the negative, then the court is respectfully requested to enter judgment in favor of the defendant.
    ■ The court entered judgment for defendant on the case stated. Plaintiff appealed.

      Error assigned was in entering judgment for defendant on case stated.

      James S. Campbell, for appellant.
    — As between plaintiff and defendant, defendant should have paid these taxes: Green v. Harris, 170 Pa. 644.
    While as between the parties to this action the plaintiff is entitled to reimbursement from the defendant for these taxes, the plaintiff was, while the suit for the purchase money was pending, clearly liable for the taxes to the borough, county and state as he was the assessed owner of the property, and therefore the payment was not voluntary : Building Assn. v. Webb, 12 Pa. Superior Ct. 545; Hogg v. Longstreth, 97 Pa. 255; King v. Building Assn., 106 Pa. 165; Fidelity Ins. Co. v. B. & L. Assn., 17 Pa. Superior Ct. 270; Iron City Tool Works v. Long, 44 L. I. 28; Henry v. Horstick, 9 Watts, 412.
    The plaintiff need not wait until the taxes are increased by the cost of execution and other court costs before paying them, for if he does, he will be unable to recover from the defendant such costs, as he could have prevented them by paying the taxes when due: Owens v. Salter, 38 Pa. 211; Fisher v. Worrall, 5 W. & S. 478; Eberz v. Heisler, 12 Pa. Superior Ct. 388.
    This matter was not res judicata.

      David A. Reed, with him Reed, Smith, Shaw & Beal, for appellee.
    — The payments were voluntary: Hassinger v. Solms, 5 S. & R. 4; Turner v. Patridge, 3 P. & W. 172.

      There was no personal liability on the part of Mangold to pay these taxes: Siter’s Appeal, 26 Pa. 178; Longwell v. Bentley, 23 Pa. 99; Ins. Co. v. Wilgus, 88 Pa. 107.
    Part of this claim is res judicata : Schwan v. Kelly, 173 Pa. 65; Pennock v. Kennedy, 153 Pa. 579; Hartman v. Incline Plane Co., 11 Pa. Superior Ct. 438.
    June 30, 1906:
   Opinion by

Henderson, J.,

As between the county and borough and the appellant, the latter was liable for the tax, which is the subject o£ this action. He was the holder of the legal title and the assessment was a charge against him, personally, for payment of which his goods and chattels were subject to seizure, and in case sufficient goods and chattels were not found he was subject to arrest and imprisonment. The warrant of the tax collector required him to demand and receive from every person named in his duplicate the sum with which such person stood charged and such warrant was effectual to authorize the collection of the taxes assessed against the appellant. The assessment being regular and unappealed from, the tax authorities were not only not bound but had not power to look beyond the assessment roll. The appellant was also interested in the land as security for the payment of the purchase money due him. He was not limited to the individual responsibility of the defendant, but could also hold the title until payment of the purchase money was made. He was directly interested, therefore, in preventing a sale of the land for taxes, an occurrence which would have swept away both the title of the defendant and the plaintiff’s security. Such being the situation the appellant paid the taxes. That an obligation for the payment of them rested on the defendant does not seem to be controverted. It acquired an equitable title by articles of agreement and should have paid the taxes assessed after its purchase: Gheen v. Harris, 170 Pa. 644. The defendant having denied the validity of the contract of sale and having refused to be bound thereby, no other course was open to the plaintiff to relieve himself from personal liability and to avoid a sale of his security except to pay the charge against him and the land. It is unquestionably true that an action of assumpsit will not lie for the mere voluntary payment of the debt of another. A request and promise to pay are not implied by such an act. But this principle applies to intrusive payments. It has no application where one either by compulsion of law or to relieve himself from liability or to save himself from damage pays money which the defendant ought to have paid: 2 Greenleaf’s Evidence, sec. 114; Hogg v. Longstreth, 97 Pa. 255; Iron City Tool Works v. Long, 4 Sadler’s Pa. Supreme Ct. Cases, 57. The contention of the appellee that this principle does not apply to the case under consideration because no demand was made upon the defendant to pay the taxes and no seizure was made by the collector to enforce payment thereof, • is not well founded. A demand upon the defendant would have been a vain act in view of its attitude toward the contract. At the very time the taxes were assessed and afterward it was insisting that it was not the owner of the land and denying all responsibility on account of the contract. Nor can we hold that the payment was voluntary because the plaintiff did not wait until his property or person was threatened by the tax collector. It would be unreasonable to require him to submit to the seizure of his goods or to a personal arrest before he acquired the right to pay the charge and have an action for repayment against the defendant. Such a course would result in annoyance and perhaps humiliation to the plaintiff and the accumulation of costs and expenses, but would not increase his liability or in any way benefit the defendant. It was expressly held in Iron City Tool Works v. Long, above cited, that it was immaterial that no legal proceedings had been commenced to enforce the payment of the taxes and that it was not necessary for the plaintiffs in that case to wait until process was issued against them or their property before they paid the taxes which ought to have been paid by the defendants.

Out of the facts presented in the case stated an implied assumpsit arose in favor of the plaintiff upon which he was entitled to judgment. His right to judgment on part of his claim is denied, however, because $21.97 of the taxes due was paid while the action was pending on the contract between the parties, as to which payment it is said the principle of res judicata applies. The plaintiff’s claim in the present case, however, does not arise out of the written agreement, but out of the implied contract resulting from the payment of the taxes by him. It is an independent cause of action arising upon a new contract which came into existence after the original action was brought. At that time the present claim had no existence. The first action was on the contract in writing for a specific sum in the contract stated. No claim for taxes was then made or could then have been made, and as to the new cause of action we have no doubt that it may be now maintained.

The judgment is therefore reversed and judgment is now entered against the defendant in favor of the plaintiff for the amount of the plaintiff’s claim with interest and costs, the amount of the judgment to be liquidated by the prothonotary of the court below.


source: Caselaw Access Project

author: Oblady, J.,

license: Public Domain

text:
    Pickering, Appellant, v. Breen.

      Landlord and tenant — Distress—Removal of goods in nighttime.

    A tenant after taking possession of a residence bought some furniture for use therein. Shortly aftenvards he removed from the house, locked it, and turned the key over to a stranger. Upon his removal he asked the dealer, who sold him the furniture, to take it back. When the tenant left rent was due, and a constable at the instance of the landlord made several ineffectual attempts to levy on the goods between sunrise and sunset. The furniture dealer secured the key to the house, and while he was attempting after sunset to remove the furniture, the constable levied upon it before it reached the pavement. Held, that the distress was a lawful one.
    Argued April 24, 1906.
    Appeal, No. 52, April T., 1906, by plaintiff, from judgment of C. P. No. 1, Allegheny Go., Dec. T., 1900, No. 356, on verdict for defendant in case of M. H. Pickering v. F. J. Breen, The Knoxville Land Improvement Co., and Mathew Best.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Replevin for household furniture. Before Brown, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [The suit arises on an action of replevin to recover goods leased by M. H. Pickering to F. J. Breen, a tenant of the Knoxville Land Improvement Company, and by the latter company seized, upon a landlord’s warrant, for unpaid rent. The warrant was issued and delivered to the constable October 8,1900. The constable, upon that and subsequent days, between sunrise and sunset, endeavored to levy, but was unable to do so because the tenant kept the house locked; but on the evening of October 12, about 7:30, the constable, discovering the goods were being removed, seized them on his warrant. The act of the tenant having prevented the seizure between sunrise and sunset, neither he, the tenant, nor the plaintiff, whose bailed goods were on the premises, can set up the general sunrise-to-sunset rule in bar of the levy. Otherwise a tenant, and those under him, could prevent any levy by running an all-night house — opening a few minutes after sunset and closing a few minutes before sunrise. The general rule implies an open house between sunrise and sunset, with the opportunity to levy.] [1]
    [It is clear that the tenant was in arrear, and owed rent. Therefore there was due, by the.strict terms of the contract, $120, and the landlord’s warrant was issued. The constable, as we have suggested, made an effort to make the levy — made an effort to make the levy between sunrise and sunset, as suggested by the learned counsel for the defendant, and, failing in that, made a levy at the time the goods were being taken out, after sunset. Assuming, if you so find from the weight of the •evidence, that there was rent due, then it follows, as a matter of law, that the Knoxville Land Improvement Company had the right to issue the warrant, it follows, under the rule we have laid down, that the constable had the right to make the levy.] [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) above instructions; (3) refusal of binding instructions for plaintiff.

      James T. Buchanan, for appellant.
    — A distress executed at night is an unlawful trespass: Sherman v. Dutch, 16 Ill. 282; Fry v. Breckinridge, 7 B. Mon. (Ky.) 31; Tutton v. Drake, 5 Hurlston and Norman, 647.
    A stranger may remove his goods at any time before they are distrained, even with the purpose and object in view of avoiding a distress: Adams v. LaComb, 1 Dall. 440; Ball v. Penn, 10 Pa. Superior Ct. 454; M’Geary v. Raymond, 17 Pa. Superior Ct. 308 ; Scott v. McEwen, 2 Phila. 176 ; Sleeper v. Parrish, 7 Phila. 247 ; Ellis v. Lamb, 9 Pa. Dist. Rep. 491.

      W. D. Grrimes, for appellee,
    cited: Kleber v. Ward, 88 Pa. 93; Myers v. Esery, 134 Pa. 177 ; Grace v. Shively, 12 S. & R. 216.
    June 30, 1906:
   Opinion by

Oblady, J.,

Francis J. Breen, by an article of agreement dated September 11, 1900, became the tenant of certain described premises in Knoxville borough from October 1,1900, to March 31,1901, at a monthly rental of $20.00, due and payable on the first day of each month after October 1, 1900. By consent of the landlord, he was permitted to take immediate possession of the premises, before the beginning of the term. The lease contained a provision that “ should the aforesaid rent or any part thereof remain unpaid after the same shall be due and payable, the whole amount of rent for the unexpired term shall thereupon become due and payable, and the lessor may, at his option, consider the lessee as a tenant at will, etc.”

On September 12, Breen purchased from M. H. Pickering, who was engaged in the furniture installment business, a number of articles for use in his household, consisting of furniture, carpets, bedding, etc., which were placed in his home. On October 8, no rent having been paid, and under the terms of the lease all the rent being then due, the landlord issued his warrant to Mathew Best, a constable, directing him to levy and make the rent, together with the costs, of the goods and chattels of Breen, on the premises, according to law.

On October 9, Breen notified Pickering, by a writing, that he had been suddenly called away to accept a new position, Avhich necessitated his giving up his home in Pittsburg, and concluded “ I cannot be under the additional obligation of $18.00 per month, on the furniture, so will kindly ask you to take the same back and cancel the lease, and hope the $20.00 paid will repay you for your expenses. The key of the house can be had from my wife, in care of Charles Schucliman, 85 Lincoln avenue, Montooth borough.” •

The constable, on the day he received his warrant, and on subsequent days between sunrise and sunset, made six or eight ineffectual attempts to levy on the goods, but was unable to do so for the reason that the doors were securely fastened by locks, the blinds drawn close and the house unoccupied.

On the afternoon of October 12, several employees of Pickering went to 85 Lincoln avenue, Montooth borough, secured the key to the Breen house, whither they proceeded, but did not arrive until about half-past seven o’clock, and it being after dark, they were obliged to light the gas in order to remove the property from the house. While Pickering’s employees were in the act of removing the personal property from the house, the constable appeared and seized the goods under his landlord’s warrant. Whereupon Pickering brought this action of replevin, and retained possession of the goods; on the trial the defendant landlord recovered a verdict of $52.68, the value of the goods seized, the jury specially finding that there was $120 of rent due.

In the charge to the jury the court said: “ Mr. Pickering is entitled to recover only if he, through his agents, got these goods at a point beyond the line of the premises. If he got them out on the pavement, then they were not subject to this distress. In that case, there would be a verdict for the plaintiff, because this is not a suit brought by the plaintiff to get the very goods which the constable had seized. In order to get them out of the possession of the constable, he had to issue this replevin and give bond. Mr. Pickering is entitled to recover only, if these goods were on the pavement at the time the levy was made, and if you so find, then your verdict would be for the plaintiff. On. the other hand, if the property was upon the premises, upon the lawn, partly on the lawn and partly on the porch, then your verdict would be for the defendant, .... because the property being liable for rent, it was under lawful distress, and is responsible over to the landlord for the rent. If the weight of the evidence satisfies you that the property levied upon was not on the premises — and it was not upon the premises if it was out upon the pavement — then your verdict would be for the plaintiff, M. H. Pickering. . . . The act of the tenant having prevented the seizure between sunrise and sunset, neither he, the tenant, nor the plaintiff, whose bailed goods were on the premises, can set up the general sunrise-to-sunset rule in bar of the levy. Otherwise a tenant, and those under him, could prevent any levy by running an all-night house, opening a few minutes after sunset and' closing a few minutes before sunrise. The general rule implies an open house between sunrise and sunset, with an opportunity to levy.”

In taking the property from the premises, Pickering was acting in behalf of Breen, the tenant, and his rights must be measured by the standard that could be asserted by Breen. The rent was unquestionably due and unpaid, a number of attempts had been made to levy on the goods between sunrise and sunset, which were rendered ineffectual through the act of the tenant, and the jury has found as a fact, after a fair submission to them, that the goods were seized by the constable on the premises, while they were being moved in the nighttime through the concerted action of Breen, the tenant, and Pickering, the bailor of the goods.

The right of a landlord to seize goods under such circumstances is fully established in Myers v. Esery, 134 Pa. 177: “ A landlord’s right of distress for rent extends to furniture leased- by the owner thereof to the tenant, as a keeper of a boarding house on the demised premises.”

The facts in this case are much stronger, as the tenant placed the goods in the house for the purpose of using them as the necessary equipment of his home, and as between Pickering and the landlord, they were unqualifiedly the property of the ’tenant and subject to this distress. No authority is needed for the general proposition that the exercise of the right of distress for rent in . arrear must be had whilst the goods are upon the demised premises, and, that all goods upon the premises, whether belonging to the tenant or other persons, with some exceptions designed to aid in the encouragement of trade not necessary to mention here, are subject to such distress : Ball v. Penn., 10 Pa. Superior Ct. 544.

In Grace v. Shively, 12 S. & R. 216, it was held that the removal o£ goods in the nighttime is in itself clandestine and ‘sufficient evidence of fraud. Our act of March 21, 1772, is the same in substance as the statute George II, chapter 2, •paragraph 1, from which it was copied very nearly verbatim: “ Where any person shall fraudulently or clandestinely convey away or carry off, or from, the demised premises, his goods or chattels, to prevent the landlord or lessor from distraining the same for arrears of rent so reserved, it shall be lawful for the landlord or lessor, or any person or persons by him, for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels, to take and seize such goods and chattels wherever the same may be found, as distress for said arrears of such rent,” etc.

Where the undisputed evidence shows that the tenant withdrew from the demised premises, placed the house under lock and key, and later attempted to remove the goods in the nighttime, during the life of the landlord’s warrant, such conduct would be held, as a matter of law, to be fraudulent and clandestine.

The rent being due and its payment being asserted under a warrant of which the tenant would be presumed to have notice, as he had provided in his lease for it being issued under just such a contingency, and the goods being removed in the nighttime, he is not in a position to claim the sunrise-to-sunset rule, after having prevented the execution of the warrant within the usual time. Nor was Pickering, whose only right on the premises depended upon the order of Breen, in any better position. See Owens v. Shovlin, 116 Pa. 371; Esterly Machine Company v. Spencer, 147 Pa. 466.

However, this case does not stand on such a narrow margin. The tenant admitting that he had deserted the leased premises, and turned the key over to a stranger, thus making him his agent, and without paying any rent, sought to relieve himself of all liability on his bailment contract with Pickering by returning the goods ; and the bailor, in attempting to secure the goods, elected to remove them in the nighttime without the knowledge of the landlord, it is the dictate of common sense, as well as the voice of positive authority, that he stands in the place of the tenant.

The court properly held that the distress was a lawful one. The jury resolved the disputed facts in favor of the landlord, under a charge which fairly submitted them for their consideration. The assignments of error are overruled.

The judgment is affirmed.


author: Oblad y, J.,

text:
    Waltz v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Infant—Parent and child — Parties—Amendment.
    Where a suit is brought in the name of a father to recover damages for the death of an infant son, and the jury returned a verdict in a lump sum for the parents as “total damages for the death of their son,” the record may subsequently be amended by adding the name of the mother of the deceased.

      Negligence — Railroads—Newsboy—Station—Defective locomotive.

    Where a boy employed by a news company is properly and lawfully engaged in taking newspapers from a train standing at a station, and while doing so is killed by a locomotive passing on the track between the train and the station, the company will be liable for his death where it appears that the locomotive was in a defective condition, that by reason of the defect it could not be stopped by its engineer after he had ascertained that a train was standing at the station, and that the locomotive was being operated by direct order of the superintendent of the division after he had been advised of its defective condition.
    Argued May 7, 1906.
    Appeal, No. 4, April T., 1906, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1903, No. 336, on verdict for plaintiff in case M. C. Waltz v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for the death of the plaintiff’s son. Before O’Connor, P. J.
    The facts relating to the accident are stated in the opinion of the Superior Court.
    Defendant presented the following points:
    1. Inasmuch as Mary Waltz, the mother of the decedent, is living and not a party to this action, the plaintiff cannot recover. Answer: We decline to so instruct you. We believe still that the father is entitled to the services of his minor children until they become twenty-one years of age, and we do not construe the act of 1855 to mean anything more than either father or mother may recover, and the father while living being entitled to the services, we refuse the point. It is at most a matter that may be amended and it cannot seriously affect your fiuding in this case. [1]

      2. There being no duty owing to the decendent by the defendant company, the plaintiff cannot recover. Answer: If it were admitted that the young man was not upon defendant’s premises in the line of his duty or in pursuance of some legal right, we would affirm the point; but we are not certain that he has not been in pursuance of a legal duty. We have left that question to you and decline the point for that reason. [2]
    3. The decedent was a trespasser on the platform of defendant company: therefore, the plaintiff, who is the father of the decedent, cannot recover. Answer: We have instructed you in our general charge that if he was a trespasser the plaintiff cannot recover. We cannot affirm the point as drawn for the reason that it assumes a fact which is not admitted. [3]
    4. That the decedent was unnecessarily standing in a dangerous place, and not having any business to transact, nor having any business relations with the defendant company, he was negligent; therefore the plaintiff cannot recover, and the verdict should be for the defendant. Answer: We have fully instructed you upon that point in our general charge ; if he was careless, standing by the track or in a place where he must have known that he would be injured, and took the risk, that would be contributory negligence and he could not recover; but we are not saying that he was unnecessarily standing in a dangerous place; we leave that question to you and refuse to affirm the point as drawn. [4]
    5. The defendant requests the court to instruct the jury that, if they find for the plaintiff, to state in their written verdict whether the damages so found are for the full compensation for both parents of the deceased. Answer : We instruct you, if you find for the plaintiff, to find full compensation and damages so far as it affects both parents, and you must say in your verdict that you so find; that is, you will find full compensation in damages, whether due the father or due the mother, or due both the father and the mother. [5]
    6. Inasmuch as engineman of 1758 violated an established rule of defendant company in running by a passenger train while it was standing at the station, the defendant company was not negligent, and the plaintiff cannot recover under the facts of this case and the verdict should be for the defendant company. Answer: We decline to so instruct you. It is an evidence of carelessness, and was recognized by the company as a dangerous practice to run an engine and train of cars between a passenger train and the station at a time when a passenger train is receiving or discharging passengers; as we view it, instead of lessening its liability, it only increases it, the company being liable for the acts of its agents. This point is refused. [6]
    7. Even if the court should be of the opinion that decedent was an employee of the Union News Company, the plaintiff could not recover by reason of the provisions of the act of April 4, 1868, and the verdict should be for the defendant company. Answer : The facts in the case showing that decedent was employed by the Cresson News Company, this point would not apply, because there is no evidence that he was in the employ of the Union News Company. The only evidence is that the person in charge of the Union News Company sent for him that evening to come to that place, and in that view of the case we say he was lawfully there, although there is no evidence that he was employed there. The point is refused as having no application to the facts in the case. [7]
    8. Even if the court should be of the opinion that decedent was an employee of the Cresson News Company, the plaintiff could not recover, and the verdict should be for the defendant company. Answer : We cannot affirm this point under the evidence for the reason that the person employed by the agent of the Union News Company has testified that he sent for the boy to come there, and he came up to the front of the station, where sales were being made ; that was about the last time he was seen before he was injured. [8]
    Verdict and judgment for plaintiff for $1,446.56. Defendant appealed.

      Errors assgned among others were (1-8) above instructions, quoting them ; and (12) allowing amendment so as to add the name of the mother to the record.

      H. W. Storey, for appellant.
    — It must be ádmitted that the decedent was at the Cresson station on November 20, 1902, either as an employee of the Union News Company or out of idle curiosity. Assuming the second proposition to be true, then the only duty the railroad owed him was to abstain .from wantonly and willfully injuring him, and no liability arises to such person from the want of ordinary care: Philadelphia, etc., R. Co. v. Hummell, 44 Pa. 375; Gillis v. Penna. R. R., 59 Pa. 129; Baltimore & Ohio R. R. v. Schwindling, 101 Pa. 258 ; also see Moore v. Penna. R. R. Co., 99 Pa. 301; McMullen v. Penna. R. R. Co., 132 Pa. 107 ; Cauley v. Railroad Co., 95 Pa. 398; Enright v. R. R., 198 Pa. 166.
    The testimony shows that young Waltz was there for the purpose of going to the train and receiving therefrom certain papers. The fact brings him directly within the intent of the act of 1868, supra. It is the duty of the employees to receive articles from the trains. If young Waltz assumed this duty, he took upon himself the responsibility of an employee: Ricard v. R. R., 89 Pa. 193 ; Gerard v. Penna. R. R., 12 Phila. 394 ; Mulherrin v. R. R., 81 Pa. 366.
    An amendment which would deprive the other party of the benefit- of the statute of limitations, or any other valuable right, should not be allowed: Wright v. E. T. C. Co., 11 Pa. Dist. Rep. 452; 26 Pa. C. C. 497 ; Wright v. E. T. Cooper Co., 206 Pa. 274.

      Robert E. Creswell, with him Thomas J. Itell, for appellee.—
    The amendment was proper : Booth v. Dorsey, 202 Pa. 381; Hughes v. Williams, 17 Pa. Superior Ct. 229; Herbstritt v. Lackawanna Lumber Co., 212 Pa. 495 ; Booth v. Dorsey, 202 Pa. 385 ; Wright v. Eureka Copper Co., 206 Pa. 274.
    The case was for the jury: Howard Express Co. v. Wile, 64 Pa. 201; First Nat. Bank v. Wireback, 106 Pa. 37 ; Rummell v. Dilworth, 111 Pa. 343; Vannatta v. Cent. R. of N. J., 154 Pa. 273.
    It was only by the mere circumstance of locality that the decedent came to be upon the railroad company’s premises, and therefore the act of April 4, 1868, relied upon by the defendant, has no application whatever: Spisak v. B. & O. R. R., 152 Pa. 281; Vannatta v. Cent. R. R. of N. J., 154 Pa. 262; Noll v. R. R., 163 Pa. 504; Johnson v. Bruner, 61 Pa. 58; Bier v. Standard Manufacturing Co., 130 Pa. 446; Ross v. Walker, 139 Pa. 42; McGuigan v. Beatty, 186 Pa. 329.

      June 30, 1906:
   Opinion by

Oblad y, J.,

■ The plaintiff’s son, aged about fifteen years, was killed at Cresson station on the defendant’s railroad on November 20, 1902, about five o’clock in the evening.

It is undisputed that the Union News Company, under • an arrangement with the defendant, had a booth or stand, for the sale of papers, periodicals, etc., on the platform of Cresson station, and received its supplies at that point by baggage car service, the goods being delivered at the car door to the employees of the Union News Company, and by them taken to the booth. John F. Parrish was the local agent of the Union News Company, and, as a personal enterprise, operated a small business in the name of the Cresson News Company, by delivering papers, magazines, etc., in Cresson, at points away from the station.

Henry Waltz was employed by Parrish for $2.50 a week to deliver papers received at the booth around the town, and to perform such other work as he was directed.

On November 20, Parrish was obliged to go away from Cresson for the night, and requested his father to take care of the evening business at the booth, lock it up, and open it for business the next morning.

The morning daily papers arrived at six and eight thirty o’clock by east and west trains. The news stand was generally kept open until about eight o’clock p. M. On this evening, Parrish, the father, who was there representing his son, testified as follows: “ Q. Did you see Henry Waltz, around there ? A. Yes, sir. Q. Where was he ? A. Standing at the outside window; I was inside. Q. What was Henry Waltz doing there? A. He was there for the purpose of helping that evening. Q. What were you doing there ? A. I was tending to the news stand for the evening. Q. What was Henry doing ? A. Well, he intended — his idea was to bring the papers from the train, as the train pulled in there, he was to bring the papers to the stand to me. That is what he was there for, to bring the papers up to the stand. Q. You were in charge of the news stand that evening? A. Yes, sir. Q. Did you invite Henry Waltz down there that evening? A. Yes, sir; I asked him to help me out that evening. Q. You asked him to come down? A. Yes, sir. Q. What were John Parrish and Mr. Waltz talking about? A. About newspapers. Q. What was the conversation ? A. Mr. Parrish told him to go and get the newspapers when the train would come in from the west. He was to get them and distribute them among the customers. To get them ready. Q. What train did he look for the papers on? A. It was No. 34 (a passenger train).”

The boy was standing on the station platform near to the news booth, with baggage trucks in his immediate vicinity when, as the appellant in his history of the case states, “ The accident occurred by an engine running east on Track No. 1, while the passenger train was standing on Track No. 2, going in the same direction, striking a baggage truck, which was thrown against the deceased.”

This engine had become disabled while hauling a train of cars from South Fork eastward and was obliged to leave the train at Portage, and from there the engineer reported its defective condition to the superintendent of the division. Orders were issued to the engineer to proceed to Altoona with the engine and tender alone, and while he was approaching Cresson station, owing to the escaping steam which filled the cab, he was unable to see along the line of the track and distinguish the passenger train standing at Cresson station. When quite near to the station he endeavored to bring his engine to a standstill, but found that the throttle would not work, and before he could apply the brakes successfully, the engine had passed through the station on the track between the one on which the passenger train was then standing and the station platform, striking the truck, and causing the death of the boy. This occupancy of the track by the engine was in direct violation of Rule No. 114, as follows: —“ Trains approaching stations where a passenger train is receiving or discharging passengers must be stopped before reaching the passenger train.”

The only explanation of the violation of this rule was, that by reason of the defective freight engine, it could not be controlled. On the trial a prominent contention was that the boy was a trespasser on the track of the company, and unnecessarily exposed himself to a manifest danger by being there. This question was largely one of fact, and was fairly submitted to the jury, in the general charge as follows: —“ If he was not there for a lawful purpose, if he was a trespasser and was not in some lawful pursuit, or was careless and that contributed in any degree to his death, then the plaintiff, in this case, could not recover.”

There was abundant evidence to justify the jury in finding that as an employee of the Union News Company, he was acting under orders of the representative of that company in doing its necessary work, and at the very place and time where the railroad company provided that it was to be done, by delivering the papers at the car door, and that he was not a trespasser, but was there under his right as an employee of the Union News Company.

This action was brought in the name of the father. The defendant’s first point being, “Inasmuch as Martha Waltz, the mother of the deceased, is living, and is not a party to this action, the plaintiff cannot recover,” which was refused by the court. The defendant’s fifth point was as follows : —“ The defendant requests the court to instruct the jury that if they find for the plaintiff, to state in their written verdict whether the damages so found are for full compensation for both parents of the deceased.” This was answered as follows : — “We instruct you, if you find for the plaintiff to find full compensation and damages, so far as it affects both parents, and you must say in your verdict that you so find. That is, you will find full compensation in damages, whether due the father, or due the mother, or due both the father and the mother.” The verdict returned was as follows: — “Sept. 9, 1904. We, the jurors impaneled in the .above entitled case, find for the parents, the sum of $1,446.56. Total damages for the death of their son.”

The plaintiff filed a formal motion to amend by adding the name of Mary Waltz, the mother of the deceased, as one of the parties entitled to recover. On April 4, 1905, the'amendment was allowed, and judgment was then entered on the verdict in favor of the plaintiff.

Whatever of irregularity there was in the pleadings, it was relieved by this amendment. In Huntingdon & Broad Top Mountain Railroad Company v. Decker, 84 Pa. 419, the proper practice to be followed, under the act of 1855, is fully considered, so that there should be no controversy in the profession as to who are the proper parties, and how their demand should be stated. See also Kerr v. Pa. R. R. Co., 169 Pa. 95; Weaver v. Iselin, 161 Pa. 386; Haughey v. Pitts. R. R. Co., 210 Pa. 367; Hughes v. Williams, 17 Pa. Superior Ct. 229.

The addition of the name of Mary Waltz did not change the form of the action, and while her name should have been included in the statement as a person entitled to participate in the damages, its omission did not in any way harm the defendant in the light of the verdict returned by the jury.

The negligence of the company in allowing the dismantled engine to proceed on its way to Altoona, when it could not be controlled by the engineer, was a proper matter for the consideration of the jury in determining whether that act was negligent or not. It would be straining the judgment of common-sense jurors to hold under the testimony of the engineer who had it in charge that it was not negligent. This act of negligence was in the carrying out of the direct order of the superintendent of the division, after he was advised, “ That the engine was in no condition to haul the train. The packing was blown out of the throttle.”

In view of the character of his employment, the boy was not a trespasser while lie was receiving the papers from the baggage ear, and conceding that he was engaged or employed about the depot within the meaning of the Act of April 4,1868, P. L. 58, the plaintiff was entitled to recover by reason of the negligence of the company in permitting the freight engine to run through the station while the passenger train was standing at that point.

The case was carefully tried in the court below and after a fair submission to the jury of all the disputed facts, no sufficient reason has been shown to warrant our disturbing the verdict as returned by the jury.

The judgment is affirmed.


author: Henderson, J.,

text:
    International Savings & Trust Company, Appellant, v. Stenger.

      Insurance — Mutual insurance — Assessments—Affidavit of defense — Practice, C. P. — Receiver.
    In an action by a receiver of a mutual insurance company to recover assessments an affidavit of defense is insufficient which merely avers that the policy was issued without authority of law, with no facts stated from which the truth of the averment can be determined; nor in such a case can the defendant who has accepted a policy from the company deny that the corporation was legally organized.
    A provision in a policy of mutual insurance that a neglect or refusal to pay the dues shall render the policy null and void, cannot be construed so as to relieve the insured from liability to pay losses after he had neglected or refused to pay his dues.
    A decree of a court having jurisdiction of the subject directing the receiver of an insolvent mutual insurance company to make assessments on policies to cover losses during the period of the policies, is conclusive as to the necessity and amount of the assessment, and cannot be questioned in either respect in any collateral proceeding.
    In an action against a member of an insolvent insurance company to recover assessments, the defendant cannot object that the action should have been brought in the name of the insurance commissioner.
    Insurance companies organized under the fourth paragraph of section one of the Act of May 1,1876, P. L. 53., are not required to have a guarantee capital.

      Corporations — Change of name — Meeting—Notice.
    Personal notice of a meeting called for the purpose of changing the name of a corporation is not required under the thirtieth and thirty-first sections of the act of May 1, 1876.
    The regularity of the proceedings to change the name of a corporation cannot be collaterally attacked in a suit in which the corporation is a party.
    Argued May 8, 1906.'
    Appeal, No. 129, April T., 1906, by plaintiff, from order of C. P. Cambria Co., March T., 1906, No. 400, discharging rule judgment for want of a sufficient affidavit of defense in case of International Savings & Trust Company, Receiver of the Duquesne Mutual Casualty & In-
    demnity Co., v. John Stenger.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover assessments. Before O’Connor, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      G-. if. Wright, with him John II. Stephens, for appellant,
    cited: Stockley v. Hartley Bros., 12 Pa. Superior Ct. 628; Ogden v. Beatty, 137 Pa. 197; International S. & T. Co. v. Kleber, 29 Pa. Superior Ct. 200; Hummel & Co.’s Appeal, 78 Pa. 320; Insurance Co. v. Buckley, 83 Pa. 293; Insurance Co. v. Leavy, 136 Pa. 499; Backenstoe v. O’Neil, 18 Pa. Superior Ct. 55.

      R. E. Cresswell, for appellee.
    June 30, 1906 :
   Opinion by

Henderson, J.,

Several matters of defense are set forth in the affidavit of defense which will be considered in the order in which they are there presented:

1. The averment that the policy was issued without authority of law is general in its terms and insufficient from any point of view. Whether it is an allegation of fact or a conclusion of law is not apparent, but as no facts are stated from which the truth of the averment can be determined it lacks the elements requisite to constitute a good statement of defense : Superior National Bank v. Stadelman, 153 Pa. 634.

2. It is sufficient to say in regard to the charge in the affidavit that the plaintiff company was not organized in compliance with the provisions of the Act of .May 1, 1876, P. L. 53, for the reason that a guarantee capital was not provided for, that the act referred to.does not require a guarantee capital for corporations of the class to which the plaintiff company belonged. The 8th section of the act requires such a capital in the case of companies organized under the second or third paragraphs of the 1st section, but theplaintiff company was organized under the fourth paragraph of that section, as to which class there is no provision for guarantee stock. If it were otherwise, however, the defendant could not be permitted to assert in this action that the corporation was not legally organized. It is sufficiently alleged in the declaration that the company is a corporation created and existing under the laws of the commonwealth. Its corporate franchise was asserted and exercised and was recognized by the court of common pleas in the appointment of a receiver. The defendant accepted a policy issued by it and in so doing treated it as an existing corporation. Whether it was formed in strict compliance with the requirements of the statute or not it was a de facto corporation, at least, whose existence cannot be collaterally attacked. A party cannot deny the existence of a corporation with which it has dealt in its corporate capacity: Cochran v. Arnold, 58 Pa. 399.

3. Paragraph 15 of the “ Conditions and Agreements ” contained in the policy issued to the defendant contains the following provision: “The policy holder shall at-any time have the privilege of withdrawing from the Association by giving five days’ notice of his intention to withdraw and surrendering this Policy, when all future liability shall cease ; provided all indebtedness due the Association has been satisfied.” Section 5 of article 4 of the by-laws provides that “ if any member shall neglect or refuse to pay his or her loss dues within the time specified in the notice his or her policy shall become null and void and all money paid by such member or policy holder shall be forfeited to the Association.” The defendant alleges that after receiving notice of the loss dues for the year immediately succeeding the date of his policy he notified the company that he would not pay his proportion of such dues and that he neglected and refused so to do and requested that his name be. stricken from the books of the company at the end of the year following the date of the policy and he now contends that under the provisions of the policy, above quoted he is relieved from liability to assessment for losses occurring during that year or subsequently. His contention is that the provision of the by-laws that neglect or refusal to pay loss dues within the time specified shall render the policy null and void relieves him from liability to payment after such refusal. The effect of such a by-law was considered in Stockley, Receiver, v. Hartley, 12 Pa. Superior Ct. 628, where it was held that such a provision did not relieve the insured from liability to contribute a proportionate share to the indebtedness of the company. To the same effect is Susquehanna Ins. Co. v. Leavy, 136 Pa. 499. On failure to pay as required by the terms of the contract the company might treat the policy as void, but it would be a most unreasonable interpretation of the by-law to hold that it permitted the insured at his pleasure to annul an obligation for his proportion of losses which he had voluntarily assumed. It is not claimed that there was a withdrawal in accordance with the provisions of the 15th paragraph of the “ Conditions and Agreements ” of the policy, for it is expressly provided therein that all indebtedness due the association must be satisfied before such withdrawal takes place; and it is not only not alleged that such indebtedness was paid but, on the contrary, it is expressly stated that it was not paid. Paragraph 15 of the policy provided a mode by which the defendant might have relieved himself from further responsibility under the contract. Having failed to proceed in accordance with its directions his obligation continued and he is bound to pay his just share of the losses for which the company is answerable. If the policy had been canceled it would have been the same in effect as if it had expired and the insured would have been liable for losses occurring during the life of the policy: Stockley v. Schwerdfeger, 19 Pa. Superior Ct. 289; Brown v. Spackman, 29 Pa. Superior Ct. 638. A decree of the court having jurisdiction of the subject directing the receiver of an insolvent mutual insurance company to make assessments on policies to cover losses during the period of the policies is conclusive as to the necessity and amount of the assessment and cannot be questioned in either respect in any collateral proceeding: Moore v. Reifsnyder, 22 Pa. Superior Ct. 326 ; Brown v. Spackman, 29 Pa. Superior Ct. 638. The liability of the policy holders in a mutual insurance company for their proportionate shares of the losses of the company is in accordance with the essential principle upon which insurance companies are organized and in the case of insolvent companies is only discharged by payment.

4. The objection to the regularity of the change of the name of the corporation cannot be made available.. Personal notice of the meeting called for the purpose of changing the name of the corporation is not required under the 30th. and 31st sections of the act of May 1, 1876, but if there had been an omission in this respect the defendant could not collaterally attack the validity of the certificate issued under the provisions of the act.

5. The objection that the action is not brought in the name of the insurance commissioner is met by the opinion of Judge Beaver in Saving Co. v. Kleber, 29 Pa. Superior Ct. 200, where it was held that the defendant could not raise the question. As it is a purely formal matter the record could be amended if necessary by making the insurance commissioner a party.

A reference to the cases above cited shows that the questions raised by the defendant are all there answered and that the matters of defense set up are not a sufficient answer to the plaintiff’s claim.

The assignment of error is sustained and the record is remitted to the court below with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be entered.


author: Mobrison, J.,

text:
    Givens v. Ledebrink, Appellant.

      Justice of the peace — Jurisdiction—Amount of claim.

    On an appeal from the judgment of a justice of the peace for $300, the jurisdiction of the justice will not be ousted by evidence that plaintiff, a physician, on advice of counsel fixed the value of his services at $300, and that in making a claim against a school board for the' same services, fixed the value at $420, or at the rate of $10.00 per visit for forty-two visits, there being nothing on the record to show that he ever made any other claim against the defendant than that for $300.
    Argued May 10, 1906.
    Appeal, No. 91, April T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 181, on verdict for plaintiff in case of A. J. Givens v. William Ledebrink.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Appeal from justice of the peace. Before Collier, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $200. Defendant appealed.

      Error assigned was in submitting the case to the jury under the pleadings and evidence.

      H. I. Riley, for appellant.
    — The evidence in this case shows conclusively that the plaintiff’s claim was originally for $420, and that he remitted the sum of $120 in order to reduce his claim to $S00, for the specific purpose of giving the justice of the peace jurisdiction; this he cannot do: Bower v. McCormick, 73 Pa. 427; Moore v. White, 11 W. N. C. 206; Peter v. Schlosser, 81 Pa. 439; McFarland v. O’Neil, 155 Pa. 260; Diehm v. Snell, 119 Pa. 316; Township v. Gordner, 109 Pa. 116.

      C. E. Theobald, for appellee.
    June 30, 1906:
   Opinion by

Mobrison, J.,

• This suit was brought before a justice of the peace to recover for professional services rendered by the plaintiff, a physician, to the stepchildren of the defendant, while they had the smallpox. Plaintiff alleged a contract with the defendant for treating the stepson, who was of full age and not a member of defendant’s family. Plaintiff alleged that the stepdaughter was a minor member of defendant’s family and that the treatment was rendered to her with the knowledge and consent of defendant.

Plaintiff claimed and secured judgment before the justice for $300, for forty-two visits, and there is no evidence that at any time he claimed or demanded from this defendant more than that sum. From that judgment defendant appealed. In the common pleas court plaintiff declared for $300 for professional services, etc., and defendant in his affidavit of defense denied all liability and in addition, in the last paragraph of his affidavit, said: “ Affiant further says, that the charge of $300 for services rendered to Otto Haas and his daughter is exorbitant and most outrageous. . . . Affiant further says that he is not indebted to the plaintiff in the sum of $300, or in any sum whatsoever.” The defendant pleaded non assumpsit, etc., and on the issue thus raised the ease was tried before the court and a jury, and the result was a verdict and judgment thereon in favor of the plaintiff for $200.

The record contains three assignments of error, but we find no merit in the first and second, and, indeed, the learned counsel for defendant does not contend that they raise reasons for a reversal of the judgment. The third assignment is based on the proposition that the plaintiff’s claim or demand was for forty-two visits at §10.00 per visit, making $420, which sum is beyond .the jurisdiction of the justice before whom the suit was commenced, and that the plaintiff could not reduce his claim to §300 and give jurisdiction to the justice, and if the justice had no jurisdiction of the cause of action, the common pleas had none on appeal. If the above facts were conceded the proposition is good law: Deihm v. Snell, 119 Pa. 316.

But the pinch of the present case is whether the plaintiff ever had a cause of action, claim or demand against this defendant for more than $300, and reduced it to that sum to confer jurisdiction upon the justice.

1. The claim was an unliquidated one and its amount was, at all stages of the litigation, disputed by the defendant as exorbitant and outrageous.

2. It does not appear that the plaintiff ever demanded from the defendant more than $300. This was his demand before the justice and in his declaration in the common pleas.

3. The fact is undisputed that the plaintiff alleged that his services were worth $10.00 a visit, or $420 for forty-two visits, and he tried to get the school board of Shaler township to pay him that sum. But he had no legal claim against the school board, and they paid him nothing, and this idle demand in no way fixes his claim or demand against the defendant.

4. There is nothing in this case to prevent the plaintiff from fixing his charge, claim and demand against the defendant at $300, even if he could have proved, prima facie, that his services were worth, in the opinion of physicians, $420. He did not demand or prove his claim against the defendant for more than $300.

5. It appears in the evidence that the plaintiff, on the advice of his counsel, did fix the value of his services at $300 before making a demand of the defendant for their payment. But it does not clearly appear that this was done in order to confer jurisdiction on a justice.

The counsel and the plaintiff may have concluded that a jury would say the services were not worth more than $300. If they did so decide, the result vindicated their judgment, as the jury only allowed the plaintiff $200.

The learned counsel for the defendant has cited several cases in support of his contention that the justice was without jurisdiction.

In Bower v. McCormick, 73 Pa. 427, the plaintiff before a justice demanded the value of logs, “ measuring 20,310 feet at $6.00 per thousand, from which he deducted $22.00, leaving a balance now claimed of $99.86. Held, that this did not give the justice jurisdiction.” In that case the demand was above $100 and tbe deduction appears to have been made for the very purpose of giving jurisdiction to the justice. In the present case no demand was made on the defendant for more than $300.

In Collins v. Collins, 37 Pa. 387, it is said (p. 390) : “ The sum demanded is the test of jurisdiction. To get at that we look at the transcript of the justice, and the narr. on appeal, and the practice is to receive parol testimony also; and from all these sources to determine the jurisdiction by the matter of fact.”

In Peter v. Schlosser, 81 Pa. 439, cited by defendant, the demand of the plaintiff was above the then jurisdiction of the justice, and the case turned on that precise point.

McFarland v. O’Neil, 155 Pa. 260, is also cited, but it does not rule the controlling point in the present case.

We ought not to split hairs to oust the jurisdiction in this case, because it seems to have been fairly tried and a just verdict rendered, and if the defendant were to succeed hr his present effort, the next move would probably be a suit in the common pleas to recover for forty-two visits at $10.00 per visit, whereas the present judgment is only $200. It seems kind to the defendant to permit the judgment to stand.

We rule the case upon the fact that the judgment of the justice, the plaintiff’s declaration in the common pleas and the oral testimony plainly show that at no time during this contention did plaintiff make a claim or demand against the defendant for more than $300, and of that sum it is and must be conceded the justice had jurisdiction.

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


author: Orlady, J.,

text:
    Anderson v. Pittsburg, Bessemer & Lake Erie Railroad Company, Appellant.

      Common .carriers — Railroads—Negligence—Evidence.
    In an action against a railroad company to recover damages for injuries to a car load of fruit and honey, it appeared that the shipment was made at a double first-class rate on a refrigerator car. When the car reached its destination, it was placed on a delivery siding, and the consignee removed a small portion of its contents. He then locked the car, having all of the next day to unload without being subject to demurrage charges. When he opened the car the next day he found the contents crushed and shoved into a mass and greatly injured. There was evidence from which it might be inferred that this was caused by the violent forcing of other cars against the one in question. Held that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued May 15,1906.
    Appeal, No. 59, April T., 1906, by defendant, from judgment of C. P. Butler Co., Deo. T., 1903, No. 51, on verdict for plaintiff in ease of B. C. Anderson v. The Bessemer & Lake Erie Railroad Company.
    Before Rice, P. J., Porter,- Henderson, Morrison, Orladv, Head and Beaver, JJ.
    Affirmed.
    Trespass against a common carrier for loss on goods. Before Thomas, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $275.03. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      Lev. McQuiston, for appellant.
    — Ordinary care under the circumstances was all the law required of defendants as bailee: Shenk v. Phila. Steam Propeller Co., 60 Pa. 109; Needy v. R. R., 22 Pa. Superior Ct. 489; Allam v. R. R., 183 Pa. 174; R. R. Co. v. Midvale Steel Co., 201 Pa. 624; Steamship Co. v. Smart, 107 Pa. 492; Lamb v. R. R., 46 N. Y. 271; Adams Express Co. v. Sharpless, 77 Pa. 516; Penna. R. R. v. Raiordon, 119 Pa. 577; Davenport v. R. R., 173 Pa. 398; Wagner v. Traction Co., 212 Pa. 132 ; Patterson v. Clyde, 67 Pa. 500; Gashweiler v. R. R., 83 Mo. 112; Fairchild v. R. R., 148 Pa. 527.

      J. W. Hutchinson, with him Murrin $ Murrin, for appellee.
    —Under the law the plaintiff might have rested with proof of the destruction of the goods, and it would then have been the duty of defendant company to account for the loss in such a way as not to implicate itself in a charge of negligence. No direct proof of negligence was required of the plaintiff until defendant did so account: Steamship Co. v. Smart, 107 Pa. 492; Henderson v. R. R., 144 Pa. 461.
    June 30, 1906:
   Opinion by

Orlady, J.,

■ The plaintiff shipped a carload of goods, consisting of about 3,500 baskets of grapes, pears and honey, from Ripply, N. Y., to Butler, Pa., via the defendant’s railroad. The classification of the freight required that a double first-class rate should be paid, and to secure the safe and careful transportation of the goods they were carried in a refrigerator car, which arrived at Butler, Pa., some time during the afternoon of Saturday, November 15. This was considered a half holiday, and a Sunday following, the delivery of the goods was delayed until Monday, November 17.

There was no substantial controversy as to the facts. The car arrived in a safe condition, and was placed on what is known as an interchange or delivery siding of the defendant company, so that the contents could be removed by the consignee. When the car was opened on Monday the goods were found to be in a safe condition, and 100 baskets of fruit were removed; the plaintiff fastened the car door and retained the key. When he returned on Tuesday morning to take out the balance of the goods, it was found that the car had been moved about two car lengths along the tracks from where it had been standing the preceding evening, and the contents were -in so confused and damaged a condition that he unqualifiedly refused to receive them. A number of witnesses, both of the plaintiff and defendant, described them as “ smashed together,” “ crushed and shoved into a mass from one end of the car,” jammed as though two cars had run together.” It was further shown that the local freight agent and another official of the company made a prompt examination of the cause of the accident, and notified the company that the damage was done by the switching of cars in the company’s yard.

Under the rules then in force the car was placed by the defendant company where it intended that the plaintiff should remove its contents, and the plaintiff had the right to the use of the car for that purpose, during the whole of Tuesday without being liable for any demurrage charge. The facts show conclusively that the injury to the contents of the car was due to the exertion of great force, suddenly applied to the north end of the car and that it was not produced by any causes exerted within the body of the car. After some controversy between the local freight agent and the plaintiff, an arrangement was made by which he should dispose of the damaged goods at the best price to be obtained therefor, which was done, and his claim in this action is for the actual loss he sustained; being the difference between the fair market value of the fruits and the price he received for them.

The plaintiff did not show the actual cause of the injury, and it would be hardly possible for him to do so, the car being in a safe condition Monday night and the injury to the goods occurring during the nighttime, when he had no business or right about the defendant’s tracks. Nor did the defendant offer any explanation in regard to it. The whole question was carefully investigated through the witnesses called at the trial, and there was sufficient direct evidence in the case to justify the jury in finding that the violent forcing of other cars against this one, was the immediate cause of the injury to the goods. The defendant conceded that while the car was on the interchange switch in process of unloading, it was its duty to exercise ordinary care over it, and having exclusive control of the track on which the car was standing, it would be contrary to ■reason to impute any other cause of injury than one over which the railroad company had control. The general injury to the contents of the car, as detailed by the witnesses, would negative the idea that the car had been carefully moved, even if it had been necessary to transfer it for emergency purposes. The facts were necessarily few in number, and the reasonable and natural inference to be drawn from them, confirmed the conelusion reached by the defendants when they investigated the case while the facts were fresh and easily secured.

When an inference of negligence is sufficiently raised to carry the case to a jury, and there is no countervailing proof to offer to it, the jury are warranted in basing their verdict on such inference, or, as stated by Mr. Justice Fell in Morgan v. Electric Co., 213 Pa. 151, conditions were shown to exist which indicated very clearly the cause of the death, and no other cause being shown the jury were warranted in finding that this was the cause. The defendant’s rights under the terms of the contract of shipment and its particular duty as warehouseman or bailee after the technical delivery, are not controlling questions in the case. The character of the shipment, the special freight charge exacted, the refrigerator car, its location on the delivery siding, the time within which the plaintiff had the right to unload it, the nature of the injury and the resulting damage, were proper items of proof for the jury in determining whether the defendant used care according to the circumstances, and this was practically the only question submitted to them.

The judgment is affirmed.


author: Morrison, J.,

text:
    Kohler v. Butler County, Appellant.

      Road law — Appeals from viewers — Acts of February 11, 1854, P. L. 62, April 15, 1891, P. L. 17, and May 26,1891, P. L. 116.
    Under the Acts of April 15, 1891, P. L. 17, and May 26,1891, P. L. 116, a landowner in Butler county is entitled to appeal to the common pleas from the report of a road jury refusing him damages, although under the local Act of February, 1854, P. L. 62, applicable to Beaver, Butler and Lawrence counties, the report of the jury is final.
    Argued May 16, 1906,
    Appeal, No. 167, April T., 1906, by defendant, from judgment of G. P. Butler Co., Sept. T., 1904, No. 82, on verdict for plaintiff in case of Frank X. Kohler v. County Commissioners of Butler County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Appeal from report of a jury of view. Before Galbbeath, P. J.
    The facts are stated in the opinion of the Superior. Court.
    Verdict and judgment for plaintiff for $1,120. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Everett L. Ralston, with him J. B. McJunkin and' Steven Cummings, for appellant,
    cited: Kingstown Twp. Road, 6 Kulp, 341.

      Lev, MeQuiston, of MeQuiston MeQuiston, with him Greers, for appellee,
    cited: Mansfield Boro’s Appeal, 158 Pa. 314; Com. v. Brown, 210 Pa. 29; Wilkesbarre v. Stewart, 16 Pa. Superior Ct. 347 ; Homer v. Com., 106 Pa. 221; McHenry’s Petition, 6 Pa. Superior Ct. 464; Chalfant v. Edwards, 176 Pa. 67.
    June 30, 1906 :
   Opinion by

Morrison, J.,

The origin of this case was a proceeding in the quarter sessions of Butler county to lay out a public road, a portion of which passed through the land of the plaintiff. In that proceeding the report of re-reviewers in favor of the road was confirmed absolutely by the court and the road ordered to be opened through plaintiff’s land, on July 11, 1904. On the same day the plaintiff appealed to the common pleas of Butler county because the re-reviewers allowed him no damages. On August 4, 1904, the court awarded an issue to try and determine the question of the plaintiff’s damages before a jury. In that issue Frank X. Kohler was made plaintiff and the county commissioners of Butler county defendants. The trial of this issue resulted in a verdict and judgment thereon in favor of the plaintiff for $1,120, and from this judgment the defendant appealed to this court.

There is not a single assignment of error in the record which conforms to our rules, but we have concluded to waive this and pass upon the real question sought to be raised, on its merits. This question is, whether the plaintiff is entitled to an appeal to the common pleas or was he limited to the provision of the Act of February 11, 1854, P. L. 62? That act is special and it only applies to the counties of Beaver, Butler and Lawrence. It clearly makes the report or reports of viewers and the final acts of the court in confirming the same conclusive as to the damages sustained by tbe landowner through whose land the road is laid out.

We then have article 16, section 8 of the constitution of 1874, providing for an appeal and a jury trial as to the amount of damages, according to the course of the common law. Then comes the Act of May 14, 1874, P. L. 164, providing that road and bridge viewers shall endeavor to procure releases of damages, and failing, they shall assess the damages and report to the court, etc., subject to appeal, review or modification, as may be provided by existing laws in the different counties of the commonwealth. It is very clear under this, act, and the act of 1854, P. L. 62, and the decision of the Supreme Court in Warriorsmark Township, 126 Pa. 305, that the landowner is not entitled to an appeal from the report of viewers passing upon his damages to the common pleas; this is so, because the act of 1854 is still the law as to damages in such cases in Butler county. We also have the Act of June 13, 1874, P. L. 283, regulating appeals from assessments of damages to owners of property taken for public use. But this act by its title and terms does not seem to apply to road cases.

Then comes the Act of April 15, 1891, P. L. 17, which provides in plain terms for an appeal to the common pleas in all cases of assessments of damages by a jury of view, review, or re-review, in laying out, widening, grading, opening or changing the lines or grades of any public street, road or alley in this commonwealth. . Provided, the appeal be taken within thirty days after the final confirmation of the report of said jury. Section 3 of that act reads: All acts or parts of acts inconsistent herewith be and the same are hereby repealed.” And finally we have the Act of May 26, 1891, P. L. 116, entitled : “ An act to provide for an appeal to the court of common pleas, from the decree of the court of quarter sessions confirming any award of viewers in proceedings to assess damages for the opening, widening or changing of grade of any street, road, or highway.” That act also contains the same repealing section as the act of April 15, 1891. It will be noted that the act of May 26 is limited to viewers appointed to assess damages, but where road viewers are authorized by law, as in Butler county, to lay out roads and assess the damages, this act applies. Both of the latter acts are broad enough to coverall cases of viewers appointed to lay out roads, etc., and assess damages, and in view of the repealing clauses in both of said acts, we are unable to see why the plaintiff in the case at bar was not well within his legal rights in appealing to the common pleas. It was the duty of the jury of re-review to assess his damages, and having failed to allow him any damages and the court having confirmed the report, he was aggrieved.

Now, whether we treat the acts of 1891 as repealing so much of the act of 1854 as makes the action of the viewers and the court final and conclusive as to the question of damages, or as providing an additional remedy, is not material. In either case the plaintiff is entitled to his plain statutory right of a jury trial accqrding to the course of the common law. It may be that the whole of the act of 1854 can stand and that a landowner so electing can have his damages finally determined by view and order of the court of quarter sessions. But this is not now finally decided. However, if we concede this, it by no means follows that a landowner aggrieved by the report of viewers and the final order of the court thereon may not appeal and have his jury trial under the acts of 1891.

We are clearly of the opinion that the plaintiff’s appeal in the present case and the trial and judgment therein are legal.

But it is unnecessary for us to say more in this case. We think the charge of the learned court helowto the jury and his opinion refusing a new trial fully vindicate the judgment and it might be affirmed thereon without more. There is no merit whatever in the attempted assignment of error refusing a new trial.

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


author: Rice, P. J.,

text:
    Commonwealth v. Miller, Appellant
    (No. 1).

      Criminal law — School directors — Corrupt interest in contracts — Indictment.
    Where an indictment against a school director charges him substantially in the words of section 66 of the act of March 31, 1860 with being interested in a contract for furnishing'school supplies to the district of which he is director, and no application is made for a bill of particulars, the defendant is not entitled to have the indictment quashed because it was not sufficiently specific as to the kind of supplies and material furnished, or the price or prices agreed upon.
    After a motion to quash an indictment has been overruled, the jury sworn, and the testimony taken, it is too late to move to quash the indictment because it charged several separate and distinct misdemeanors in one count.
    An indictment charging a school director with being interested in a contract for furnishing materials and supplies will not be quashed because it charged that certain materials and supplies were furnished to one schoolhouse of the district, and that certain other materials and supplies were furnished to another schoolhouse of the district. In such a case the gravamen of the offense charged is not the mere furnishing of the materials and supplies, but the being unlawfully interested in the contract under which they were furnished.
    The sixty-sixth section of the act of March 31, 1860 as applied to school directors is not restricted to cases where the director of the purchasing school district is at the same time a member, officer or agent of some other corporation which has contracted to furnish the supplies or materials, but includes a case where the contract is between a person in his sole right, or as a member of a firm, officer or agent of a corporation, and the school district of which he is a director.
    A corrupt or dishonest intent, or unfairness in the price charged for the supplies and materials, is not an essential element of the offense. Therefore, an allegation in an indictment that the defendant was “corruptly” interested in the contract is surplusage.

      Evidence — Criminal law — Good character — Reasonable doubt.

    Evidence of good character is substantive and positive proof in the prisoner’s behalf, and may give rise to a reasonable doubt, which would not otherwise'exist, by making it improbable that a man of such character would commit the offense charged; but where the jury is satisfied beyond a reasonable doubt under all the evidence that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.
    Argued March 16, 1906.
    Appeal, No. 241, Oct. T., 1905, by defendant, from judgment of Q. S. Schuylkill Co., Nov. T., 1905, No. 1,013, on.verdict of guilty incase of Commonwealth v. John A. Miller.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlad?, Head and Beaver, JJ.
    Affirmed.
    Indictment of school director for being unlawfully interested in a contract for materials and supplies furnished to a school district. Before Marr, J.
    The indictment was as follows :
    “The grand inquest of the commonwealth of Pennsylvania, inquiring for the county of Schuylkill, upon their respective oaths and affirmations, do present that heretofore, to wit, on June 6, 1904, John A. Miller was_ a director of the public schools of the township, of Washington, county aforesaid, having been duly elected to said office and having duly qualified and assumed the discharge of the powers and duties thereof, and that in the conduct and discharge of said office of director of public schools of said township of Washington, it was unlawful for the said John A. Miller to be in any wise interested in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of said school district, or to be directly or indirectly interested therein, or to receive any reward or gratuity from any person interested in such contract or sale.
    “ And the grand inquest, aforesaid, upon their respective oaths and affirmations, aforesaid, do further present that the •said John A. Miller, late of said county, yeoman, so then and there being a duly elected and qualified director of public schools in the said township of Washington, and a member of the said board of directors of public schools of said township of Washington, as aforesaid, on June 6, 1904, at the county aforesaid, and within the jurisdiction of this court with force and arms, then and there being a director of the public schools of the township of Washington and a member of the board of directors of the public schools of said township, was unlawfully and corruptly interested directly and indirectly in a contract for the sale and furnishing of supplies and materials to be furnished to and for the use of said school district of which he was a director, as aforesaid, to wit: for the furnishing of labor, materials, horses and wagons for the distributing of maps, books and supplies to the several school houses in said district, and for the repairing of school houses known as Flat Hill No. 2 and Conrads No. 1, said school houses being the property of ■ and used by said school district contrary to the form of the act of the general assembly in such case made and provided, etc.”
    The court overruled a motion to quash the indictment. [1]
    The court charged in part as follows :
    [The word corruptly has been used in this indictment. In my opinion that is utterly immaterial. The act of assembly does not use it. The act of assembly does not say “ intentionally ” ; but it positively prohibits his being interested in any way or in any manner in any contract for the furnishing of supplies or materials to the school district of which he is a director. And, as has been said in your hearing, for the very reason that, when he furnishes supplies to that district or is interested in contracts for that district, when the bills for such come before the school board, he sits in judgment on his own contract, on his own supplies, on his own material. The law prohibits that. The fact that a practice of that kind may have been carried on for some years is no excuse, no defense ; but it is a reason why juries should render a verdict, if the evidence warrants it, that the man who does it is guilty, in order that such practice may be broken up.] [2]
    Defendant presented this point:
    4. The defendant’s good character for honesty and integrity proven in this case is positive and substantial testimony and of itself sufficient to raise a reasonable doubt as to the guilt of this defendant. Answer : Evidence of good character is substantive positive proof in the prisoner’s behalf, and may give rise to a reasonable doubt which would not otherwise exist, by making it improbable that a man of such character would commit the offense charged; but where the jury is satisfied beyond a reasonable doubt under all the evidence that the defendant is guilty, evidence of good character is not to overcome the conclusion which may follow from that view of the case. [6]
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were (1, 2, 6) above instructions, quoting them.

      W. F. Shepard, with him R. S. Bashore and A. W. Schalehc, for appellant.
    — The indictment should have been quashed: Com. v. Naylor, 8 Lack. Legal News, 20; Shaeffer v. Landis, 1 S. & R. 449; Smith v. Thomas, 2 S. & R. 49; Seigfried v. Commonwealth, 101 Pa. 200 ; Randolph v. Commonwealth, 6 S. & R. 397; Commonwealth v. Hunter, 13 Pa. C. C. Rep. 573 ; Edge v. Commonwealth, 7 Pa. 275.
    What evidence as to good character is worth in a trial in court is to be regarded as evidence of a substantive fact, sufficient in itself to raise a reasonable doubt: Commonwealth v. Miller, 4 Phila. 195; Commonwealth v. Carey, 2 Brewster, 404; Heine v. Commonwealth, 91 Pa. 145; Hanney v. Commonwealth, 116 Pa. 322.

      G. E. Berger, with him Guy E. Farquhar, John F. Whalen and I. A. Reed, district attorney, for appellee.
    — The indictment was sufficient: Trainer v. Wolfe, 140 Pa. 279; Com. v. Naylor, 8 Lackawanna Legal News, 20.
    Under the criminal procedure act of 1860, a motion to quash an indictment must be made before the jury is sworn and not afterwards: Commonwealth v. Frey, 50 Pa. 245.
    It was not necessary to aver that the acts with which the defendant was charged were corruptly done, nor was it necessary to prove the same : Commonwealth v. Frey, 50 Pa. 245; Hutchinson v. Commonwealth, 82 Pa. 472.
    The instruction as to good character was proper: Commonwealth v. Harmon, 199 Pa. 521; Commonwealth v. Eckerd, 174 Pa. 137.
    June 30, 1906:
   Opinion by

Rice, P. J.,

The indictment upon which the defendant was convicted was drawn under section 66 of the act of March 31, 1860, and charged that he, being a duly elected and qualified director of the school district of the township of Washington, and acting as such, “ was unlawfully and corruptly interested directly and indirectly in a contract for the sale and furnishing of supplies and materials to be furnished to and for the use of said school district of which he was a director as aforesaid, to wit: for the furnishing of labor, materials, horses and wagons for the distributing of maps, books and supplies to the several schoolhouses in said district, and for the repairing of schoolhouses, .... said schoolhouses being the property of and used by said school district, contrary,” etc. .

It is claimed that the indictment was not sufficiently specific as to the kind of supplies and materials furnished or to be furnished under the contract, the price or prices agreed upon, and other particulars. It is argued that the averment of these particulars was essential to enable the defendant to prepare his defense and to protect him- against a second prosecution for the same offense, and because of the omission to aver them more specifically, the motion to quash ought to have been ah lowed. This position cannot be maintained. Where the offense is purely statutory, having no relation to the common law — where, in other words, the statute specifically sets out what acts shall constitute the offense — section 11 of the criminal procedure act of 1860, which provides that every indictment shall be deemed sufficient, which charges the crime substantially in the language of the act of assembly prohibiting the crime and prescribing the punishment, is applicable. This statutory rule as applied by the courts of this commonwealth works no hardship and infringes no constitutional right of the accused, for, whenever before trial he needs more specific information than is contained in the indictment, drawn in accordance with the provision of the criminal procedure act, to enable him to make a just defense, it may be had on timely and proper application to the court for a bill of particulars. This is none the less true, because an application for a bill of particulars is addressed to the sound discretion of the court: Commonwealth v. Johnston, 19 Pa. Superior Ct. 241, citing Williams v. Commonwealth, 91 Pa. 493; Commonwealth v. McCoy, 10 Pa. Superior Ct. 598 ; Commonwealth v. Bethlehem Boro., 15 Pa. Superior Ct. 158, 166. No application for a bill of particulars was made by the defendant, and as the offense was charged substantially in the language of the act, it is now too late for him to complain that the indictment was not sufficiently specific.

The objection that the. indictment charged three separate and distinct misdemeanors in one count was assigned as an additional reason for quashing the indictment, but this was not done until after,the original motion to quash had been overruled, the jury had been sworn and the testimony had been taken. It was then too late to take advantage of the objection by motion to quash: Section 11, Criminal Procedure Act of March 31, 1860, P. L. 427; Commonwealth v. Frey, 50 Pa. 245; Commonwealth v. Johnston, 162 Pa. 63. Whether it could have been taken advantage of by motion in arrest of judgment, if not raised before, is not clear: Commonwealth v. Miller, 107 Pa. 276. But it is unnecessary to decide that question, for the objection is not well founded. In an indictment charging that the defendant was unlawfully interested in a contract, under which certain materials and supplies were to be furnished to one schoolhouse of the district of which he was a director, and certain other materials and supplies were to be furnished to another schoolhouse of tlié district, the gravamen of the offense charged is not the mere furnishing of the materials and supplies, but the being unlawfully interested in the contract under which they were furnished. According to the principles enunciated in Commonwealth v. Miller, 4 Phila. 195; Commonwealth v. Mentzer, 162 Pa. 646; Commonwealth v. Lewis, 6 Pa. Superior Ct. 610; Commonwealth v. Sober, 15 Pa. Superior Ct. 520, such an indictment is not bad for duplicity.

The sixty-sixth section of the act of 1860, so far as material here, provides, “ nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies, or materials to be furnished to, or for the use of, any corporation, municipality or public institution of which he shall be member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale.” That a school district is embraced by the terms “ corporation, municipality or public institution,” taking them in the sense in which the legislature used them in this section, is not open to question: Commonwealth v. Morrisey, 86 Pa. 416. But it is argued that it is not enough that the person interested in the contract to sell or furnish materials or supplies to such corporation or municipality be an officer or agent thereof, but that he must also be a member, officer or agent of some other corporation or public institution furnishing them; in other words, a contract between a school director as an individual or as a member of a firm, and the school district, for the sale or furnishing of supplies or materials by the former to the latter, is not within the scope of the section. We are unable to assent to this construction. The object which the legislature had in view was the prevention of the danger of temptation, incident to a relation in which the self-interest of the officer of the corporation or municipality purchasing the supplies may come into conflict with the interest of the corporation or municipality. The law was passed to enforce a rule or policy of very wide application, which, in another connection, was thus expressed : “ No man can serve two masters. He that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage for doing wrong which a particular situation affords, does, out of the mere necessity, work a disqualification: ” 8 Tomlins’ Brown, 72, quoted with approval by Thompson, C. J., in Everhart v. Searle, 71 Pa. 256. Having regard to the evident purpose of the enactment, it is impossible to surmise a good or even plausible reason for supposing that the legislature deemed a contract between a person in his own right and the school district of which he is a director less plainly within the mischief to be remedied and prevented than a transaction where the officer of the corporation or municipality purchasing the supplies or materials is merely an officer, or, perchance, a stockholder in a corporation from which they are purchased. -Being a penal statute, the foregoing consideration would not justify an extension of it by construction to a transaction of the former kind, if the words in which the legislative will is expressed must be twisted out of their plain and ordinary meaning, or must be suppressed or added to, in order to reach such a case, though Avithin the spirit of the law: Trainer v. Wolfe, 140 Pa. 279; Commonwealth v. Krickbaum, 199 Pa. 351; Commonwealth v. Gouger, 21 Pa. Superior Cf. 217 ; yet if they are comprehensive enough to include it, as we think they are, it is a valid and a very strong reason why we should not be astute in the search for another possible construction of them that would lead to an absurd conclusion and deprive the enactment of the greater part of its efficiency. “ In a statute the meaning of the words may be this or that, according to the subject, context and other particular circumstances. The province of the courts is to determine the meaning 'the legislature intended them to have. The rule of strict construction in favor of the accused is not violated by giving the words a reasonable meaning, according to the sense in which they were intended, even though in a different connection a more restricted meaning would be ascribed to them. ‘ Strict construction is not the same thing as construing everything to defeat the action,’ or, we may add, the prosecution. ‘ This is not what is meant by the expression: ’ Thompson, J., in Bartclett v. Achey, 38 Pa. 273; ” Commonwealth v. Gouger, 21 Pa. Superior Ct. 217. In the absence of any decision, binding on us, to the contrary, we are constrained to hold, that the statute as applied to school directors, is not restricted to cases where the director of .the purchasing school district is at the same time a member, officer or agent of some other corporation which has contracted to furnish the supplies or materials, but includes a case where the contract is between a person in his sole right, or as a member of a firm, or as a member, officer or agent of a corporation, and the school district of which he is a director.

A corrupt or dishonest intent, or unfairness in the price charged or contracted for the supplies or materials, is not an essential element of the offense. Therefore, the allegation of the indictment that the defendant was “ corruptly ” interested in the contract was surplusage, and properly was so treated by the trial judge in the charge and the answers to the defendant’s points : Commonwealth v. Frey, 50 Pa. 245. It was not incumbent on the commonwealth to proye the allegation, and for the same reason disproof of it by evidence of the fairness of the price paid or agreed to be paid for the supplies or materials would not have constituted a defense. As this was the sole purpose of the offer of evidence quoted in the seventh assignment there was no error in rejecting it.

The defendant has no just cause of complaint against the answer to his fourth point, inasmuch as the answer was in the exact words of the rule laid down in Commonwealth v. Eckerd, 174 Pa. 137, and reiterated in Commonwealth v. Harmon, 199 Pa. 521, “ that evidence of good character is substantive and positive proof in the prisoner’s behalf, and may give rise to a reasonable doubt, which would not otherwise exist, by making it improbable that a man of such character would commit the offense charged; but where the jury is satisfied beyond a reasonable doubt under all the evidence, the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.”

All the assignments of error are overruled and the judgment is affirmed.