text:
    Steele v. Maher, Appellant.

      Mines and mining — Coal lease — Minimum royalty — Exhaustion of coal —Forfeiture.

    1. Where an instrument in writing called a coal lease grants, conveys, demises and leases coal for a fixed term of years, provides for certain mining rights, a certain royalty per ton, a certain minimum money royalty per year, and forfeiture if the minimum royalty is not paid, and both parties have full knowledge of the existence of coal in the tract leased, and the lessee has not been deceived or misled by the lessor as to the existence of the coal or its quantity, the lessee will not be relieved from the payment of minimum royalty for the unexpired term after the coal has been virtually exhausted, and mining operations have ceased.
    2. While parties may contract that on a default the lease may become void at the option of either party, yet such intent in the agreement must be so plain as to be unavoidable in order to sustain such a construction.
    3. A clause in a lease that it shall be null and void on failure of the lessee to pay rent or keep other covenants, is not self-operating so as to make the lease void ipso facto by the default, but being a provision for the benefit of the lessor may be enforced or waived at his option.
    4. Where there has been a default by the lessee mere silence or inaction on the part of the lessor will not render the lease void. He may, on default made, demand and compel the payments. By doing so he elects to continue the lease.
    Argued May 13, 1908.
    Appeal, No. 5, April T., 1909, by defendant, from judgment of C. P. Indiana Co., March T., 1903, No. 208, on verdict for plaintiffs in case of P. W. Steele, Admin-i'strator of Sarah J. Miller, deceased, et al., v. Thomas Maher.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover minimum coal royalties. Before Tel-ford, P. J.
    The facts are stated in the opinion of the Superior Court.
    When Thomas Maher was on the stand, he was asked this question:
    “Q. Had you any knowledge of the coal in the Freeport vein at that time, in what is known as the Upper Freeport vein?”
    Counsel for plaintiffs ask the purpose of the question.
    Mr. Barron: The purpose of this question is to.show by this witness — and we make this offer — that at that time this witness was not acquainted with the conditions with respect to the mining of coal in the Upper Freeport vein and especially with respect to the mining of coal in this particular locality embraced in what is known as the Sarah Miller tract, and that he entered into the agreement in question here not knowing of these conditions and having no knowledge of either the quantity or the quality of the coal embraced in the tract in question.
    Mr. Taylor: Objected to as incompetent, irrelevant and immaterial. It is also objected to for the further reason that this testimony is incompetent to affect the contract on which this suit is brought.
    The Court: It appears to us that in this case the grant is absolute and exclusive, without regard to the contingencies. The lessee, the defendant, took his risk as to quantity or expense of operation and agreed to pay a definite, fixed minimum price or royalty for each year during the term after the expiration of the first year.
    Under the authority of Timlin v. Brown, 158 Pa. 606, the objection to the character of evidence proposed must be sustained. The objection is therefore sustained. Exception. [1]
    To which ruling counsel for the defendant except, and a bill of exceptions is sealed to the defendant.
    Mr. Banks: We propose to show by the witness on the stand, to be followed by the testimony of other witnesses to be called on behalf of the defendant, that the defendant was not acquainted with the premises or the coal thereunder embraced in the agreement at the time of entering into the same. Further, we propose to show that all the coal was mined and marketed under said land that was marketable. That the defendant paid the royalties up until November 7, 1901, and at that time gave notice to the plaintiffs that the coal under the premises had become exhausted and that he elected to deliver up the lease to the plaintiffs and abandon further operation: and that he has done nothing toward operating the mines on the premises since that time. This for the purpose of showing that all the coal under the premises that could be taken out has been taken out and that the coal under the premises has been exhausted, and that the plaintiffs have been paid for the royalties up until the abandonment of the mine by the defendant and have had notice of the abandonment; and to relieve the defendant from paying further royalties.
    Mr. Taylor: The offer is objected .to as incompetent and irrelevant.
    The Court: The objection is sustained. [2]
    Mr. Barron: The defendant offers to prove that the defendant was not acquainted with the premises or the coal thereunder embraced in the agreement at the time of entering into the same other than that the face of the bluff of said tract showed certain outcroppings of coal. That the coal at that time had not been tested to the knowledge of the defendant nor did the defendant have the right to make said tests upon the surface above said coal, nor could he make any test except driving through said bluff where was the outcropping aforesaid. That the defendant having had no experience in mining in that seam of coal or in that locality and no knowledge of the coal under said tract other than as aforesaid, entered into said agreement wholly upon the strength of the quantity and quality of the coal that was supposed to exist under said tract and that could with profit be mined therefrom. That the defendant with others operated the mine on said premises for a period of ten years, at a total loss of $10,000. That he and others employed at a great expense the largest number of workmen that could possibly be used in said mine. That he and others mined whatever coal it was possible to mine until rock rolls, faults, and the thinness of the seam prevented them from proceeding further. That the business of mining said coal was conducted in an economical and business like manner. Also to prove by other witnesses who had charge of the work in the mine that the coal has been mined until exhausted. Also by experts in mining that they have examined the premises embraced in the agreement and that said premises do not contain coal in sufficient quantities to enable the defendant or other persons to mine or take away the minimum quantity of coal specified in the lease to be mined. That said mine at no time could be worked for enough to pay the royalties as they became due. That all the coal that can be mined without great loss to the operators has been mined and that the defendant and others have done all that can reasonably be expected to prove that the coal is exhausted from the premises.
    That by reason of these facts the defendant found it necessary to abandon said premises and gave notice to the plaintiffs in December, 1901, of the abandonment and the reasons making the abandonment necessary.
    Mr. Taylor: Objected to as irrelevant and incompetent.
    The Court: The objection is sustained.
    To which ruling counsel for defendant except, and a bill of exceptions is sealed to the defendant. [3]
    Mr. Banks: We would like the court to state the reasons for overruling the offer.
    The Court: The offer is overruled for the reasons stated in sustaining the objection to the first proposition of proof of the defendant.
    Mr. Keener: The defendant proposes to prove by the witness on the stand and others, as follows:
    1. That owing to said coal having been exhausted the defendant availed himself of the clause of forfeiture in said agreement and made default in payment and gave notice to the said plaintiffs that he abandoned and surrendered said lease and elected to. take advantage of said forfeiture.
    2, That at the time of said forfeiture the said defendant surrendered the buildings on said premises to said plaintiffs, as provided for by the terms of said agreement.
    3. That the defendant has fully performed all the covenants and conditions relating to the forfeiture of said agreement on the part of said defendant.
    Mr. Taylor : Objected to as incompetent and irrelevant. The lessee under the contract in suit could not take advantage of the forfeiture clause, it being alone for the benefit of the lessors.
    The Court: The objection is sustained.
    To which ruling counsel for defendant excepts, and a bill of exceptions is sealed to the defendant. [4]
    The court charged in part as follows:
    [By an article of agreement bearing date of November 7, 1890, the plaintiffs in this case conveyed to the defendant the coal underlying a certain tract of land situated in Harrison township, Allegheny county, in the following terms, substantially: “The said parties of the first part for and in consideration of the covenants and agreements hereinafter mentioned, have granted, conveyed, demised, leased and let, and by these presents do grant, convey, demise, lease and let for the period of twenty-one years from the date hereof, to the said party of the second part, his heirs, executors, administrators and assigns, the exclusive right and privilege of developing and mining all the coal in and underlying that certain tract of land, situated,” etc.
    In our view this clause discloses a manifest intention to sell, and to buy, the coal. A contract which is in its terms a demise of all the coal underlying a tract of land, with the unqualified right to remove the same, is a sale of the coal in place.] [5]
    [This being a sale of coal in place, as we have stated, there is nothing that we can find in this contract that relieved the defendant from the obligation to pay the minimum royalty whether the coal is mined or not. Nothing is stated about the exhaustion of the coal or the expensiveness of mining in the contract. It was the agreement that $400 minimum was to be paid annually during the life of the contract; and to this amount the plaintiffs are entitled from November 7, 1901, to November 7, 1902, which is admittedly unpaid.] [6]
    [In our view of this contract the clauses relating to forfeiture must be construed as for the benefit of the lessors. They are here, however, resisting the forfeiture. They alone, in our judgment, can enforce it.] [7]
    [In this view of the case it becomes our duty to direct a verdict for the plaintiff for the amount of royalty claimed, $400, with interest from the time it was due, November 7, 1902, amounting in all to $530.
    For this amount you will find a verdict for the plaintiffs.] [8]
    Verdict and judgment for plaintiffs for $530. Defendant appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (6-8) above instructions, quoting them.

      J. N. Banks and Frank Keener, with them McKee & Mitchell and A. J. Barron, for appellant.
    The failure to pay the minimum royalty of $400 yearly was to render the lease “absolutely null' and void.” This would indicate that the parties contemplated that if the minimum royalty of $400 was not paid annually the right of Maher should cease, and the lease revert to the lessors, and Maher be relieved from payment of further royalties: Kemble Iron Co. v. Scott, 15 W. N. C. 220; Muhlenberg v. Henning, 116 Pa. 138.
    Whether or not a forfeiture clause in an agreement is for the benefit of the lessors alone depends upon the terms of the forfeiture. Parties to an agreement may make a contract that will relieve either party from liability, and it would seem from this agreement that a failure to pay on the part of Maher was to render the contract “absolutely null and void,” and that neither party should thereafter be held longer by it, and the improvements on the premises should become the property of the lessors: Bodine v. Glading, 21 Pa. 50; Vito v. Birkel, 209 Pa. 206; Neill v. Peale, 4 Atl. Repr. 830.
    D. B. Taylor and R. A. McCullough, with them R. L. Ralston, G. M. Hill and John M. Ralston, for appellees.
    The agreement in this case is almost identical with the contract in the well-known case of Timlin v. Brown, 158 Pa. 606. See also Boyer v. Fulmer, 176 Pa. 282; Hosack v. Grill, 18 Pa. Superior Ct. 90.
    February 26, 1909:
   Opinion by

Rice, P. J.,

This was an action of assumpsit brought to recover the annual minimum royalty of 1400 alleged to be due for the year ending November 7, 1902, under a sealed instrument, called a coal lease, executed and delivered in 1890, and duly recorded in 1891. The grantors in this instrument were the owners by tenancy in common of the land. One of them and the personal representatives of the two others, who died after the execution of the instrument, were the plaintiffs in the action, and the grantee in the instrument was the defendant.

The defendant set up by his offers of testimony two grounds of defense: first, that he and others mined and paid for whatever coal it was possible to mine until rock rolls, faults and the thinness of the seam prevented them from proceeding farther; secondly, that having paid all the royalties that fell due prior to the virtual exhaustion of the coal and the cessation of mining, he abandoned the lease and premises, gave notice thereof, as well as of his intention to avail himself of the forfeiture clause, to the owners, and made no further payment of royalty, whereupon, by virtue of the forfeiture clause, the agreement became void and his obligation to pay further royalties ceased.

This appeal is' from the judgment on verdict in plaintiffs’ favor for the full amount of their claim.

The words of the granting clause of the instrument, so far as material to this discussion, are “have granted, conveyed, demised, leased and let, and by these presents do grant, convey, demise, lease and let for the period of twenty-one years from the date hereof, to the said party of the second part, his heirs, executors, administrators and assigns, the exclusive right and privilege of mining and developing all the coal in and underlying that certain tract of land.” Then, after describing the land, the instrument proceeded to grant the right of taking, removing and transporting the coal, and certain other surface rights, including the right of ingress and egress into, upon and over the premises at certain- points, and to release all and every claim for damages caused to the land by the opening and operating the mines.

In consideration whereof, the grantee covenanted and agreed to pay “ten cents per ton for all coal mined after passing over a one and one-half inch screen, the slack and fine coal passing through said screen not to be paid for, weights to be ascertained from books of the weighmaster at the tipple and statements of the amount of coal mined to be rendered .... monthly, and the royalty to be paid every three months.” He also covenanted to commence the development of the coal within six months and to continue operations without unnecessary delays. Then follow the covenants upon which the case turns.

“After the period of one year after the commencement of operations the party of thé second part hereby agrees and binds himself to mine during each and every year of the continuance of this lease not less than four thousand tons of coal and to pay .... each and every year of the term of this lease the full sum of four hundred dollars ($400.00) as royalty whether the amount of coal mined in each year would amount to a royalty of that much or not.”

In immediate connection with the foregoing is the covenant or agreement that “a failure on the part of said second party .... to mine not less than four thousand tons (4,000) in any one year or to pay unto said first parties .... the full sum of four hundred dollars ($400.00) in any one of the years of the term of this lease, payable as hereinbefore provided for, shall render this lease absolutely null and void, and shall at once forfeit this lease and all rights and privileges therein.”

The tract of fifty-six acres fronted on the west side of the Allegheny river, and it is an undisputed fact that the vein of coal known as the Freeport vein was exposed by outcrop on the tract. Moreover, upon a small tract immediately north of the adjoining tract a coal bank in the same vein had been opened and worked before this agreement was made. Still farther, it is admitted by appellant’s counsel that pursuant to the agreement he entered upon the premises, opened up and developed the tract, and mined coal therefrom until 1899, when he sold his interest to the Freeport Coal Company, and that from that time until December, 1901, the Freeport Coal Company carried on the mining and paid the minimum royalties.

It will be seen from the foregoing statement of facts, that, like Timlin v. Brown, 158 Pa. 606, this is not the case of parties dealing under a mutual mistake as to the existence of the subject of a contract, where afterwards it was proved to have had no existence. Again, like that case, the parties presumably knew at the time they contracted, that there was coal underlying the tract. It is true the defendant offered to testify that he entered into the agreement without knowing the quantity or quality of the coal in the tract, but he does not deny that he had the knowledge which his eyes must have given him, if he looked at the outcrop and at the open mine in the same vein near by. Nor does he allege that he was deceived, misled or put off his guard by any act or representation of the other parties to the agreement. The parties did not contract upon a mere supposition or surmise as to the existence of coal in the tract, but with actual knowledge of that fact. As in the case cited, so here, the existence of the coal was undoubted, and the only element of uncertainty was the quantity. Admitting the truth of all the defendant offered to prove, there was no such difference between the conditions existing at the time these two instruments were executed as detracts in the slightest degree from the applicability of that decision in the construction of the agreement before us. Nor is there any such difference between the substantial and controlling terms of the two instruments. There, as here, the right to mine and remove the coal was limited to a fixed term; in that case the grantees agreed to take out at least 10,000 bushels each and every year, and as much more as they might choose, and in this case the grantee bound himself “to mine all the coal underlying all the demised premises,” and after the first year, to mine during each and every year of the continuance of the lease not less than 4,000 tons; in that case the grantees agreed to pay as royalty one-half cent per bushel for all coal taken, in this case the grantee agreed to pay ten cents per ton; in that case the grantees agreed to keep and give up the mine or bank in good workmanlike condition, and in this case the grantee agreed to leave proper ribs to support entries until all the coal should be mined. In the case cited the controlling covenant read: “In case the said Brown and Hunter fail to get out the amount before stated, they agree to pay a royalty on ten thousand bushels each and every year;” while in this case the grantee agreed to pay “ each and every year of the term of this lease the full sum of four hundred dollars as royalty whether the amount of coal mined in each year would amount to a royalty of that much or not.” Speaking of the former covenant Justice Dean said: “This stipulation in the contract .... fixes without regard to contingencies the liability to pay;” and later on in the opinion: “There is nothing in the contract indicating any intention to modify or relieve the defendants from their absolute obligation to pay on the contingencies of the mining proving unprofitable or of the exhaustion of the coal before the end of the term.” It is important to notice also that the earlier cases, cited by appellant’s counsel in this case, of Kemble Iron Co. v. Scott, 15 W. N. C. 220; McCahan v. Wharton, 121 Pa. 424, and Muhlenberg v. Henning, 116 Pa. 138, were fully reviewed by Justice Dean, and distinguished in a manner which serves as well to distinguish them from the case before us, and to render further discussion of them by us superfluous. But it is contended that Timlin v. Brown was modified by the later case of Boyer v. Fulmer, 176 Pa. 282. It is apparent, however, that the Supreme Court did not intend the latter case to have that effect, for Mr. Justice Green said at the outset of his opinion: “The learned court below ruled this case upon the authority of Timlin v. Brown, 158 Pa. 606. If the obligation of the defendant were the same as the obligation of the lessees in that case the ruling would be correct.” In the still later case of Bannan v. Graeff, 186 Pa. 648, Timlin v. Brown was distinguished from that case, but the correctness of the conclusion there reached, that the instrument created an absolute obligation to pay a fixed rental or royalty throughout the whole term, was distinctly recognized. The reasoning of the opinion of Justice Dean in Timlin v. Brown fully vindicates that conclusion, and by no amount of justifiable ingenuity is it possible to reconcile with it a conclusion in the present case that the obligation to pay ceased upon the virtual exhaustion of the coal. We conclude, therefore, that the learned judge below was right in holding that the case in hand was ruled by that case.

In the recent case of Denniston v. Haddock, 200 Pa. 426, followed in Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28; s. c., 218 Pa. 320; Gallagher v. Hicks, 216 Pa. 243, and Hollenback Coal Co. v. Lehigh & Wilkes-Barre Coal Co., 219 Pa. 124, the present chief justice, speaking of a conveyance of coal in place by a lease for a limited term, said: “Whether it would be better to call such an instrument accurately what it certainly was at common law, a lease without impeachment of waste, or to endeavor to reconcile all the decisions by calling it a conditional sale, is not necessary at present to discuss. The point to be noted is that the rules applicable to sales are not to be applied indiscriminately to such instruments but each is to be construed like any other contract by its own terms.” We are not so much concerned here with the nature of the estate or interest acquired by the defendant or with the name that is to be given to the instrument, or with the question whether the stipulated royalties are or are not the purchase money of the coal in place, as with the nature and extent of the obligation the defendant assumed. See Turner v. Lehigh Valley Coal Co., 34 Pa. Superior Ct. 101. Grant that this was not strictly speaking a sale, we would be constrained to hold, even in the absence of the decision in Timlin v. Brown, that construing the instrument by its own terms, and having regard to the conditions existing at the time it was executed, the clear intention was to create the absolute obligation, which the words of the controlling covenant plainly import, to pay $400 in each and every year of the term whether coal should be mined or not.

We are unable to agree with the appellant's counsel that the forfeiture clause gave him the right to extinguish his obligation as to future royalties by merely ceasing to mine or to pay, abandoning the premises and giving notice thereof to the grantors. While parties may contract that on a default the lease may become void at the option of either party, yet such intent in the agreement must be so plain as to be unavoidable, in order to sustain such a construction: Wills v. Manufacturers’ Natural Gas Co., 130 Pa. 222. The rule has been established by that and many succeeding cases, that a clause in a lease that it shall be null and void on failure of the lessee to pay rent or keep other covenants, is not self-operating so as to make the lease void ipso facto by the default, but being a provision for the benefit of the lessor may be enforced or waived at his optionWestmoreland, etc., Natural Gas Co. v. DeWitt, 130 Pa. 235; Cochran v. Pew, 159 Pa. 184; Bartley v. Phillips, 179 Pa. 175; English v. Yates, 205 Pa. 106. The rule was distinctly recognized and reaffirmed in Vito v. Birkel, 209 Pa. 206, a case cited by appellant’s counsel. In Wheeling v. Phillips, 10 Pa. Superior Ct. 634, we said: “Where there has been a default by the lessee mere silence or inaction on the part of the lessor will not render the lease void. He may, on default made, demand and compel the payments. By doing so he elects to continue the lease.” This is precisely what the plaintiffs did in the present case.

The judgment is affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Commonwealth v. Mediote, Appellant.

      Criminal law — Evidence—Contradiction of witness.

    1. In the investigation of an alleged crime, it is at least the right of the commonwealth, if not its duty, to call all of the known witnesses to the transaction. If the first witness called for any reason, corrupt or otherwise, testifies so as to favor the acquittal of the defendant, the commonwealth is not estopped from calling other witnesses whose testimony may contradict that of the first witness.

      Criminal law■ — Sentence—New trial — Imprisoment.
    2. Where a prisoner is convicted and sentenced to imprisonment, and on the same day committed to prison, the fact that the court on the following day allows a rule for a new trial, and subsequently after the end of the term discharges the rule, is no ground for reversal.
    Submitted Oct. 5,1908.
    Appeal, No. 13, April T., 1909, by defendant, from judgment of Q. S. Lawrence Co., Dec. T., 1907, No. 18, on verdict of guilty in case of Commonwealth v. Frank Medióte.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Indictment for perjury. Before Porter, P. J.
    The court charged in part as follows:
    [In the first place, gentlemen of the jury, you are to say whether or not the matters to which this defendant testified were true at the time he testified. Did he testify to that which was true, or did he testify to that which was false? If you find he testified to that which was false then you are to determine whether or not he did it willfully and corruptly. If you find he did it willfully and corruptly then it is your duty to convict him. If you find he did not, then you should acquit him.] [1]
    [You will remember the testimony in that case as to the congregating of some persons at the house of one Mike Bruno, and as to what took place there. The testimony of the witnesses for the commonwealth as to what took place there and thé testimony read' to you from the notes of testimony taken at the trial of the case of the Commonwealth v. Sergi. You have also the testimony of the witnesses as to what occurred from the time they left the Bruno house until they arrived at the corner of John Vacca’s store. You will remember the testimony of the witnesses for the commonwealth stated in your hearing and also the testimony as read to you from the record in the case of the Commonwealth against Sergi, as sworn to by this defendant.] [2]
    [In this case as in all criminal cases the burden of proof is upon the commonwealth to satisfy the jury beyond a reasonable doubt óf the guilt of the accused, before the jury is justified in returning a verdict of guilty. But when we say a reasonable doubt we do not mean such a doubt as you would search for, or hunt after in the evidence, but one that fairly presents itself to you in the consideration of the testimony— one that causes you to halt in arriving at a conclusion. In other words, gentlemen, a reasonable doubt is a conscientious difficulty in finding that the defendant is guilty of the offense charged in the indictment. When the defendant comes into court the law presumes that he is innocent, and until this presumption of innocence shall have been removed by the testimony adduced on the part of the commonwealth, the jury cannot but regard him as innocent. But when the commonwealth shall have produced evidence that satisfies the jury beyond a reasonable doubt of his guilt, then it is the duty of the jury to convict, and until the jury is so satisfied beyond a reasonable doubt, the jury should not convict.] [3]
    Defendant’s points are as follows:
    6. The commonwealth having called Rosario Sergi as a witness in its behalf, who testified that he was stabbed under the arm by Tony Conti at the corner of John Yacca’s store, the commonwealth is bound by that testimony and could not legally contradict the same, and the defendant could not be guilty of any testimony he gave in the trial of the case of the Commonwealth v. Rosario Sergi so far as the stabbing of Sergi by Conti at the same place is concerned. Answer: Under the facts in this case we do not find as requested in this point and it is therefore refused. [4]
    8. If the jury believe that the night of June 8, 1907, was an exceedingly dark night, there being no street lights, lights from houses in the vicinity, moonlight or starlight so far as the evidence discloses, and there being a large .number at Mike Bruno’s where the trouble is alleged to have occurred, and the greater part of which crowd left the said house and went to the corner of John Vacca’s store, and if on account of the darkness, size of the crowd and the fact that there is no testimony on the part of the commonwealth as to who and what number were at the house and on the road and their inattention to these matters the witnesses for the commonwealth do not positively know whether Frank Medióte was there or not, or if the jury have any reasonable doubt on this subject they should find the defendant not guilty. Answer: An affirmance of this point would require the court to pass upon certain matters of testimony in this case and declare as facts certain things related in this point which are wholly within the province of the jury. The court will refrain from stating what the facts are in the case and leave that wholly to the jury, and we therefore do not affirm this point. [5]
    February 26, 1909:
    Verdict of guilty, upon which the court sentenced the prisoner to pay a fine of $10.00 and undergo an imprisonment in the penitentiary for five years and six months.

      Errors assigned were (5) above instructions; (6) the sentence of the court, and (7) in refusing motion for new trial nunc pro tunc.

      J. V. Cunningham and J. Norman Martin, for appellant.
    We submit that the entertainment of the motion and the direction given by the court to the clerk operated as a vacation of the sentence and judgment of the court, and that the court could not, after the expiration of the term, make an order nunc pro tunc: Com. v. Mayloy, 57 Pa. 291; Com. v. Foster, 122 Mass. 317; Brown v. Rice, 57 Maine, 55: Com. v. Weymouth, 84 Mass. 144.

      Charles H. Young, district attorney, for appellee.
   Opinion by

Head, J.,

The first, second and third assignments complain of the scope and character of the charge delivered by the learned trial judge. Each assignment is an excerpt of some length from the charge. From a consideration of all of them the learned counsel for appellant draws the conclusion “that the charge of the court, in substance and in fact, directed the jury to find a verdict of guilty if they were convinced by the testimony of the commonwealth — ignoring the testimony of the defendant — that the defendant was guilty.”

Against such an attack that which is written must provide its own defense. It cannot be aided from without. We have read the whole of the charge with care and we are all of opinion it is not fairly open to the criticism made of it. The charge opens by naming the crime of which the defendant was accused in the single count in the indictment — viz.: perjury — and then continues, “It is for you, gentlemen, to say whether or not under the evidence that has been produced in the trial of this case the defendant be guilty or not,” etc. The learned judge then reminds the jury of the gravity of the offense, the consequent care with which they should investigate; explained the essential nature of the offense and the difference between a statement merely false in fact but not in intent, and willful and corrupt perjury.

The presumption of innocence that protects everyone accused until shattered by convincing evidence inconsistent with its longer continuance; the burden of proof resting on the commonwealth; the prisoner’s right to the benefit of any reasonable doubt and the nature of that doubt, all of these subjects were clearly and we think correctly explained. The learned judge did not attempt to rehearse the evidence in detail upon either side and makes no mention of any witness except in that portion in which he tries to lay before the minds of the jury the particular thing which was alleged to be the corpus delicti. Following this he gives this clear instruction as to the province of the jury: “You are to say whether or not the matters to which this defendant testified were true at the time he testified. Did he testify to that which was true or to that which was false? If you find he testified to that which was false, then you are to determine whether or not he did it willfully and corruptly. If you find he did .... it is your duty to convict. If you find he did not then you should acquit him.”

Certainly not in the portions of the charge quoted, nor in all of it as a whole, can we find any evidence of any intention on the part of the learned trial judge to withdraw any testimony from the jury or to divert their attention from an impartial consideration, under all of the evidence, of the material issue he had so plainly submitted to them. These assignments must therefore be dismissed.

The sixth point of the defendant (fourth assignment) naturally invites some examination of the testimony. It has not been printed in the paper-book, the appeal being in forma pauperis. We have a right to assume as correct the statement of fact concerning it made by the district attorney in his brief for the appellee. If the witness Sergi was called by the commonwealth for the sole purpose of showing “the place on his body where he received the wound,” it must be manifest there is no merit in this assignment. But on broader grounds we are unable to assent to the soundness of the proposition we understand the point to assert. In the investigation of an alleged crime, it is at least the right of the commonwealth, if not its duty, to call all.of the known witnesses to the transaction. If the first witness called, for any reason, corrupt or otherwise, should so testify as to favor the acquittal of the defendant, then the commonwealth would be estopped from offering any evidence that would tend to establish his guilt because, as the point asserts, “the commonwealth is bound by that testimony and could not legally contradict the same.” This theory we regard as untenable.

The eighth point (fifth assignment) is chiefly a statement of a number of isolated matters of fact. It did not invite the explanation of any legal principle. Its affirmance by the court might have led the jury to believe the trial judge adopted, as established facts, everything therein stated. The answer to it left the defendant no just cause of complaint.

On December 10, 1907, a verdict of guilty was rendered, and on the same day the defendant was sentenced, in due form, to undergo a period of imprisonment in the penitentiary. On the following day a motion for a new trial was presented upon which the following order appears: “Now, etc., the within motion presented in open court, the motion is entertained and the stenographer directed to write out, etc., and the defendant to have twenty days in which to file additional reasons,” etc. This is the formal and usual order that is prepared by counsel when filing such motions. It will be observed it makes no allusion to the fact that sentence had already been pronounced and embraces no direction and asks for no action by the court on that subject. It is alleged, in the petition to which we shall presently refer, that, at the time the above order was made, the learned trial court verbally directed the clerk to withhold the commitment. No such order or direction appears in the record as certified to us, and that we must accept as verity. In point of fact the commitment went regularly to the sheriff, who, in the performance of his duty, on the succeeding day, December 12, removed the defendant to the penitentiary.

Beyond the fact that the stenographer promptly filed, on December 30, the copy of the charge as directed in the order of December 11, nothing further was done until on April 30,1908, a petition was presented setting forth the facts already adverted to, and praying the court “to direct the clerk to perfect and complete the record in this case so that the action of the court, at the time of entertaining the motion for a new trial, shall appear of record.” A rule to show cause was granted and the case ordered on the argument list. The record does not show that testimony, by depositions or otherwise, was taken, that any answer was filed or even a hearing had; it only shows that on May 11, without any opinion, the court made an order, “the prayer of the within petition is refused,” and on the same day another, to wit: “The motion for a new trial in this case is refused, nunc pro tunc as of December 11,1907.”

By this appeal we are asked to reverse the judgment and send the case back to be retried. Upon what basis could such action properly rest? We have already determined that the defendant was fairly tried according to the laws of tjtie land. He was convicted by a jury of his peers. His sentence followed of course. That it followed swiftly in no way militates against any of the fundamental principles upon which our system of criminal jurisprudence is built. No statute declares that a sentence, imposed as this one was, is either irregular or illegal; no decision of our courts of appeal has so pronounced. No such question was ruled in Com. v. Mayloy, 57 Pa. 291. What was decided in that case is put beyond question by the following statement in the opinion: “The single question to be decided is as to the power of the criminal courts of this county (Philadelphia) to reconsider a sentence, after the term at which it was pronounced, and during the progress of its execution, and to modify or diminish its extent, the rule for which.being entered at the time of sentence, and within the term.” To so dispose of ordinary criminal cases has become, ex necessitate, the almost universal practice in the courts of our populous counties. We cannot say, therefore, that in imposing sentence promptly after the rendition of the verdict the learned trial judge violated any law or deprived the defendant of any right secured to him by the constitution and laws.

Did any new right inure or accrue to him because the court, on the day after sentence, “entertained” or permitted to be filed a motion for a new trial? Had an appeal then been taken to this or to the Supreme Court for the correction of alleged trial errors, it will not be contended that such appeal, without a special order of supersedeas, would in any way stop the running of the sentence. A motion for a new trial, which is in the nature of a writ of error coram vobis, ought not, in reason, to have any greater significance.

While the case, as we have it before us, presents some unusual features, we are all of the opinion that the defendant had a fair and impartial trial and that the record of that trial exhibits no reversible error.

Judgment affirmed.


author: Porter, J.,

text:
    Commonwealth v. Burford, Appellant.

      Trespass — Posted land — Private ways — Ways of necessity — Act of April 14, 1905, P. L. 169.
    1. The Act of April 14, 1905, P. L. 169, entitled, “An act making it unlawful to trespass upon land posted as private property, and providing the penalty therefor,” does not apply to a case where the owner of land builds tenement houses thereon in rows, and leases them to tenants, and where the only access to the houses for the tenants and those who have relations .with them is by customary or private ways on the land leading to public highways. A tradesman who uses such customary or private ways in order to deliver goods at the house of one of the tenants who has ordered the goods is not liable to the penalty imposed by the act for trespass upon posted land.
    2. When a conveyance contains no express grant of a right of way appurtenant to lands and no words are used from which such grant arises by implication, such right of way may, however, arise from the circumstances of the grant itself. The most marked right of way arising in this manner is the way of necessity. Where land is sold or leased and is so situated that access to it from the highway cannot be had except by passing over other land of the grantor or lessor, the grantee or lessee becomes entitled to a right to pass over the land of his grantor or lessor for the purpose of reaching the highway and returning to his own land.
    February 26, 1909:
    3. A right of way appurtenant to a house includes not only the right of the lessee to the use of it, but also the right to its use by any other person who with the permission of the tenant visits the house for any lawful purpose.
    Argued Oct. 6, 1908.
    Appeal, No. 74, April T., 1909, by defendant, from judgment of Q. S. Fayette Co., June T., 1907, No. 217, affirming judgment of justice of the peace in case of Commonwealth v, Isaac H. Burford.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Appeal from conviction by a justice of the peace. Before Van Swearingen, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the judgment of the court.

      W. C. McKean, of Robinson, McKean & Martin, for appellant.
    The appellant claims that the summary conviction in this case should not have been sustained by the court below, because appellant was not a trespasser at common law, and only such are contemplated by the act: Wissler v. Hershey, 23 Pa. 333; Stove Co. v. Evans, 9 Pa. Superior Ct. 597; Gunson v. Healy, 100 Pa. 42; Halderman’s App., 104 Pa. 251; Cochran v. Library Co., 6 Phila. 492.

      W. J. Johnson, of Johnson & Rush, for appellee,
    cited: Com. v. Rogers, 1 Del. Co. Rep. 517; Com. v. Lapempti, 16 Pa. Dist. Rep. 403.
   Opinion by

Porter, J.,

The defendant having, in a proceeding before a justice of the peace, been convicted of and fined for a willful and unlawful entry upon lands, upon which the owners had caused to be prominently posted printed notices that the said land was private property and warning all persons from trespassing thereon, under the provisions of the Act of assembly approved April 14, 1905, P. L. 169, entitled: “An Act making it unlawful to trespass upon land posted as private property, and providing the penalty therefor,” the court of quarter sessions allowed an appeal from said judgment. The parties entered into a written agreement, as to the facts, which was filed in the court below in the nature of a case stated, and upon the facts thus brought upon the record the court adjudged the defendant guilty and affirmed the judgment of the justice. The defendant appeals, and the only question presented is, are the facts embodied in the case stated sufficient to sustain the judgment.

The title of the act of April 14, 1905, above quoted, clearly indicated that it was the legislative intention to deal with the subject of trespasses upon land posted as private property, and to provide the penalty therefor. The subject was not new; trespass upon land which was private property had for very many generations been recognized by the common law as unlawful, a private injury or wrong. Blackstone defines it, book III, chap. 12, p. 209, thus: “It signifies no more than an entry on another man’s ground without lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a necessary consequence that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil; every entry, therefore, thereon without the owner’s leave, and especially if contrary to his express order, is a trespass or transgression.” And again, on p. 214 of the same chapter: “Every trespass is willful, where the defendant has notice, and is especially forewarned not to come on the land.” The injury or wrong was a private one, and the remedy was in an action of trespass by the owner.

■ The first section of the act declares that, “ It shall be unlawful for any person willfully to enter upon any land, .... where the owner or owners of said land has caused to be prominently posted upon said land printed notices that the said land is private property, and warning all persons from trespassing thereon.” It requires no resort to artificial rules of construction to arrive at the conclusion that what the legislature here declared to be unlawful was a willful trespass upon land which had been posted by the owner in the manner indicated by the statute. It certainly was not the legislative intention to prohibit every entry, whether with or without right, upon land which had been thus posted; and give to the soil a sacred character. In seeking the legislative intention it would not be reasonable to confine the inquiry to the one clause of the section made up of these words, “It shall be unlawful for any person willfully to enter upon any land,” which has been posted. To do this would be to hold that the owner could not enter upon his own land, nor make any contract permitting any other person to so enter. The notices which the act requires to be posted must warn “all persons from trespassing” upon the lands. Considering the section as a whole its meaning is free from doubt. When the owner has posted upon the land notice warning all persons against trespassing thereon, an intentional trespass shall render the trespasser subject to the penalty imposed by the statute. When thus read the statute contains nothing of which its title did not give that notice required by the constitution. The statute certainly contains nothing from which could be implied a legislative intention to do anything but make subject to a penalty such things as were and always had been trespasses upon land. The effect of the statute was to declare to be a public wrong and subject to a penalty a thing which had until that time been a private wrong for which the party injured had a remedy by private action. This act did not change the rights of the owner of the land, nor deprive him of any power to enter into contracts giving to other persons the right to enter upon his holdings, nor can it have any effect upon the rights acquired under any contract with regard to said lands, into which he may enter. There was not concealed in the body of this statute any provision which could by any reasonable intendment be held to take away from any person having an interest in land, which under the existing law entitled him to enter thereon, the right to so enter. Had such a provision been concealed in the body of the act, the title of the statute gave no notice of it and the constitutional provision would have rendered it invalid.

Fitzgerald and Lenhart were the owners in fee simple of a large tract of land in Fayette county upon which they had caused notices to be posted in the manner provided for by the act of April 14, 1905. They operated upon this tract a coke works at which they employed a large number of men. On this land were located about eighty-five tenement houses, in which the employees of said coke works reside; said houses being arranged in rows or streets, which had no outlet to the public road except over the private property of Fitzgerald and Lenhart. The village is traversed by private and customary ways and paths used by said tenants and the other employees of the proprietors. There has been no dedication by deed or plot of the streets or ways of said coke village to public use, but the same are private ways over the lands of the proprietors in which no other than the proprietors and their employees have any interest or property, but there are no other means of ingress or egress to and from the residences of said tenants than over said private ways. The owners leased the several houses to various tenants. The written lease in each case was for the term of one month, it designated the lessee, the amount of rent to be paid, the number by which the house was known, provided for the payment of the rent punctually and that in case of a holding over the tenancy should be for another month and from month to month. The written lease contained no reference to any public or private way. Burford, the defendant, was a dealer in merchandise in the borough of Uniontown, and having received orders for certain specified goods from certain tenants of the aforesaid houses, upon the property of Fitzgerald and Lenhart, with direction that the goods be delivered at said residences of the persons so ordering the same, he attempted to make delivery of the goods in accordance with such orders. While delivering said goods and at the time he was arrested the defendant traveled on foot and used only the private ways or paths customarily used by the tenants of said houses in going to- and from their daily employment and in going to and from the public road. He could not have delivered said goods at said houses in any other way. While in the act of delivering such merchandise so ordered he was arrested. Upon these facts and no others'he was convicted.

When Fitzgerald and Lenhart leased a house in the village to a tenant, that necessarily involved a demise of the land upon which the house stood and the lot, if any, used in connection therewith. The property leased was entirely surrounded by other lands of the lessors and was not accessible from any highway in any manner save over such other lands. The written lease contained no express grant of a right of way from the house to the public highway, nor did the mere words of the lease embody anything from which such a grant could be implied. When a conveyance contains no express grant of a right of way appurtenant to lands and no words are used from which such grant arises by implication, such right of way may, however, arise from the circumstances of the grant itself. The most marked right of way arising in this manner is the way of necessity. Where land is sold or leased and is so situated that access to it from the highway cannot be had except by passing over other land of the grantor or lessor, the grantee or lessee becomes entitled to a right to pass over the land of his grantor or lessor for the purpose of reaching the highway and returning to his own land: Wissler v. Hershey, 23 Pa. 333; Ogden v. Grove, 38 Pa. 487, arid note to Atkyns v. Bordman, 4 Leading Cases in the American Law of Real Property, Sharswood & Budd, p. 191. Had there been no recognized private customary way leading from the houses in the village to the highway; the tenants of those houses would have been entitled to a way of necessity, from their houses over the other land of the lessors to the highway. The facts agreed upon in the case stated, however, established that the village was traversed by private and customary ways and paths used by the tenants in passing through the village “and in going to and from the public road,” and, further; that the tenants could only have access to their houses over such “ private and customary ways.” An owner of land may, in Pennsylvania, arrange it as he pleases, doing -no injury to others, and may provide ways or other privileges necessary for the convenient use of the different parts of his land. When he has thus provided ways for the Specific use of particular parts of his land and conveys the different parts of the tract, by deed or lease, in fee or for a definite term, the grantees or lessees take the several parts subject to the servitude of such ways or with the right to the use of such ways appurtenant to their land, as the case may be, in the absence of an express reservation or agreement on the subject. In such a case justice requires that the grant should be construed against the grantor so far as to pass the privileges annexed by himself to the property conveyed: Kieffer v. Imhoff, 26 Pa. 438; Eby v. Elder, 122 Pa. 342; Zell v. Universalist Society, 119 Pa. 390; Geible v. Smith, 146 Pa. 276; Held v. McBride, 3 Pa. Superior Ct. 155; The Church v. Vonneida, 6 Philadelphia, 557. When Fitzgerald and Lenhart leased the several houses they, the owners of the land, knew of the existence of these private customary ways and they knew, also, that these ways were the only means of access to the houses which they were leasing. These private and customary ways, therefore, passed by the lease as appurtenant to the house, and the fact that the lease contained no express grant is wholly immaterial. The ways being appurtenant to the house, the title to the latter carried with it the right to the use of the way. The right being appurtenant to the house, it included not only the right of the lessee to the use of it, but that it might be used by his family and others who with the permission of the tenant visited his house for any lawful purpose. “It needs no citation of authority to show that such a right of way, appendant or annexed to an estate, may be used and enjoyed by those who own or lawfully occupy any part of the dominant tenement for any purpose to which it may from time to time be legitimately applied. Only those who may be properly regarded as trespassers on the dominant tenement can be excluded:” Gunson v. Healy, 100 Pa. 42.

The appellant was using the customary private way leading to the houses of the tenants upon the tract of land in question under the right of such tenants, to whom and upon whose express orders he was at the houses delivering necessary family supplies. The right of the tenants justified his entry and he was not a trespasser.

The judgment is reversed and the appellant discharged.


text:
    Commonwealth v. Howe, Appellant.
    February 26, 1909:

      Criminal law — Good reputation — Reasonable doubt.

    In charging the jury in a criminal case as to the defendant’s previous good character, it is reversible error for the court to .instruct the jury as follows: “What its weight shall be, what effect it shall have, is wholly for you. As I have tried to suggest to you just now there are cases in which the proof of good character would be sufficient, in itself; to create a reasonable doubt. Where there is positive evidence of guilt, of a character that doesn’t admit of a reasonable doubt, then, of course, proof of previous good reputation, no matter how well established, would not be sufficient to raise the doubt.”
    Argued Oct. 6, 1908.
    Appeal, No. 11, March T., 1909, by defendant, from judgment of 0. & T. Lackawanna Co., Oct. T., 1907, No. 19, on verdict of guilty in case of Commonwealth v. Carl Howe.
    Before Rice, P. J., Porter., Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Indictment for statutory rape. Before Newcomb, J,
    At the trial the jury returned a verdict of guilty, upon which the court sentenced the prisoner to pay a fine of $500 and costs, and to undergo an imprisonment of twelve years in the penitentiary.

      Errors assigned were (20, 22) portions of charge, quoted in opinion of the Superior Court.

      R. H. Holgate, with him Taylor & Lewis, for appellant.

      Joseph O’Brien, with him Clarence Ballentine, for appellee.
   Opinion by

Head, J.,

The record now before us presents thirty-two assignments of error. We find no good reason for any discussion of most of them. This does not arise from either haste or indifference on the part of the court; for, if we needed any spur to our general obligation to examine every case with care, we would find it in the unusual character of this case and the extent of the sentence imposed on the defendant. Suffice it to say that many of the assignments bring into this court no record on which a judgment of reversal could properly rest, and are flat violations of the rules governing the hearing and disposition of appeals in the Supreme Court and this court. Most of the remaining assignments were substantially disposed of when this case was here before: Com. v. Howe, 35 Pa. Superior Ct. 554. Where repetition is useless, it is worse than useless.

The principal witness for the commonwealth testified that meetings, for illicit purposes, between herself and the defendant had occurred frequently during a considerable period of time. She undertook to fix the particular dates of three of such meetings, and claimed to be able to do this because of the relation of those meetings, in point of time, to certain other events in her life the dates of which could be or were fixed, i. e., her birthday, etc. The defendant attacked this testimony as to every one of the dates fixed. If his witnesses were credible his attack was not without force. The learned judge, in his charge on this branch of the case, concluded by saying to the jury: “ It may be that the conflict as to dates can be harmonized and the fact of the unlawful meetings be found in favor of the commonwealth.”

The twentieth assignment complains of this language because, it is argued, it minimizes the effect of a successful contradiction of the chief witness for the commonwealth as to matters which, if not controlling, were surely not unimportant. Conceding that the learned trial judge was correct in saying that the occurrences themselves were more important than the dates, yet, it is urged, a complete contradiction of the witness as to the dates ought, to some extent, to weaken the force of her testimony as to the facts, and the court should have so told the jury.

In the trial of a lengthy .case where the testimony is voluminous, it is scarcely practicable for the trial judge, in his charge, to cover every possible inference that might properly be drawn by the jury from the evidence. After an attentive examination of the charge in its entirety we are of the opinion this assignment discloses no sufficient ground for reversal. Inasmuch as the case must go back for retrial, we have thought proper to particularly advert to this assignment to the end that the question raised by' it may not again furnish any ground for contention.

The defendant offered evidence to establish his previous good reputation. In instructing the jury as to the legal character and value of such evidence the learned trial judge said, in his charge: “ What its weight shall be, what effect it shall have, is wholly for you. As I have tried to suggest to you just now there are cases in which the proof of good character would be sufficient, in itself, to create a reasonable doubt. Where there is positive evidence of guilt, of a character that doesn’t admit of a reasonable doubt, then, of course, proof of a previous good reputation, no matter how well established, would not be sufficient to raise the doubt.” This instruction is the subject of the twenty-second assignment.

When this case was formerly before us, Judge Henderson, in disposing of a similar assignment, said: “The twenty-first assignment relates to the charge of the court on the subject of the defendant’s evidence of good reputation. We think the jury may have been misled by the language of the learned trial judge. It was in effect that if the jury was convinced by the other evidence in the case that the defendant was guilty then evidence of a previous good reputation, no matter how well established, would not overcome the case presented by the commonwealth, but that where a case is conflicting the defendant had the right to have his reputation considered for what it may be worth. ... It might be that a defendant confronted by very persuasive evidence of a criminating character could present evidence of good reputation of such force that it alone would produce such an impression of improbability as to the crime charged that doubt would arise in the minds of the jurors and an acquittal follow.”

After a careful review of the authorities that assignment was sustained and was one of the grounds on which the case was reversed. In Com. v. Cate, 220 Pa. 138, the Supreme Court, by Mr. Justice Elkin, said: “By the fifth assignment of error in the case at bar the appellant complains that the learned court below erred in charging the jury that 'where the jury is satisfied beyond a reasonable doubt of the defendant’s guilt under all the evidence, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.’ While this instruction might be understood by the legal mind as fairly within the rule above stated, it would be confusing to jurors and might lead them to disregard evidence of good character altogether, if from all the other evidence they reached the conclusion that defendant was guilty. This would clearly be error. For this reason the judgment must be reversed.” .Recognizing, as we must, the authority of this decision, and believing, as we do, that it rules the question now before us, we are obliged to sustain the twenty-second assignment. All of the other assignments are overruled.

Judgment reversed and a venire facias de novo awarded.


author: Beaver, J.,

text:
    Commonwealth v. Focht, Appellant.

      Criminal law — Perjury—Evidence.
    A conviction of perjury in swearing falsely in a proceeding before a mayor, cannot be sustained where it appears that there were proceedings before the mayor against two separate parties, that the defendant testified in one of the proceedings, but that he was not examined in the other proceeding in which he was alleged to have sworn falsely in the indictment.
    Argued Oct. 7, 1908.
    Appeal, No. 102, Oct. T., 1908, by defendant, from judgment of Q. S. Lehigh Co., April T., 1908, No. 27, on verdict of guilty in case of Commonwealth v. Daniel Focht.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.

      February 26,1909:
    Indictment for perjury. Before Trexler, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1) instruction, quoted in the opinion of the Superior Court, and (2) in refusing binding instructions for defendant.

      James L. Schaadt, for appellant.

      Fred B. Gernerd, district attorney, for appellee.
   Opinion by

Beaver, J.,

The defendant was tried and convicted under an indictment which set forth that “Daniel Focht, late of the said county, yeoman, on the 9th day of March, in the year of our Lord, 1908, at the county aforesaid and within the jurisdiction of this court, ‘ with force and .arms, etc., did unlawfully, wilfully, corruptly and falsely swear before the Honorable Charles D. Schaeffer, Mayor of the City of Allentown, County aforesaid and State of Pennsylvania, in the matter heard before his Honor, Charles D. Schaeffer, wherein one May Peters was charged with selling liquor without a license and keeping and maintaining a disorderly house, before whom he testified that he was not at May Peters’ house on the morning of the 9th of March,” etc.

Section 14 of the penal code, Act of March 31, 1860, P. L. 382, provides: “If any person shall wilfully and corruptly commit wilful and corrupt perjury, or shall by any means procure or suborn any person to commit wilful and corrupt perjury, on his or her oath or affirmation, legally administered either before any committee of the legislature of this commonwealth, or in any judicial proceeding, matter or cause which may be depending in any of the courts thereof, or before any judge, justice, mayor, recorder, alderman or other magistrate, or before any arbitrator, prothonotary, clerk, notary public, commissioner or auditor, appointed by any court of this, commonwealth, etc., ... . shall be guilty of wilfully and corruptly making a false oath or affirmation,” etc.

It appeared at the trial in the court below that one, May Peters, had made information against five cabmen, naming them, for disorderly conduct at her house on the early morning of the day upon which a hearing of the said accused men was held by the mayor of the city of Allentown. The hearing was continued until the evening of that day, when the defendant, in consequence of what was said by one or more of the accused, was brought before the mayor as a witness. The mayor also testified that, in consequence of the testimony which was brought out in the hearing of the accused cabmen, he had May Peters brought before him under the circumstances which he details in his testimony, which were as follows: “ Q. Mr. Schaeffer, were you mayor of the city of Allentown on the 9th day of March, 1908? A. Yes. Q. Did you sit as a committing magistrate on the evening of the 9th day of March, 1908? A. Yes. Q. Kindly tell the jury the whole proceeding, so they may have a good idea of the proceedings and how they came about. A. Well, I had before me in the morning a question which had developed during the hearing of the case of the occurrence at May Peters’ place the night before — during the hearing it developed — during this hearing between the cabmen, it developed that there was a little difference of opinion as to what occurred, and I asked them who else was there. Then one of them said, I think, as near as I can remember the language, says Dan Focht, he saw it; and the other said ask Dan Focht, he can tell you all about it, and I said, I will continue the case, that the question then may be heard in the evening; then the case was called and the man Focht was called the same evening and I asked him whether he had been at this particular place when this racket had taken place with the cab drivers. By the court: What date? A. I think it was March 9th. Q. So this racket must have taken place on the 8th. A. No, on Monday morning, March 9th. Then I continued the hearing to the evening of the 9th of March. Q. That is, the racket took place, according to the testimony, on the morning of March 9th, then the dates were the same, and at 9 o’clock in the morning they came up before you and you had the hearing and then you continued the hearing until 7 o’clock in the evening? A. 8 o’clock in the evening. Q. And then in the evening he was sworn by you as a committing magistrate and he testified, No', I wasn’t there? A. Yes, sir.”

When the mayor was recalled, he was asked by the district attorney: “Q. In this case that Daniel Focht testified to on the evening of the 9th of March, what case did he appear in before you? A. He was subpoenaed to testify in the case against the cab drivers and also expected to testify in the case against May Peters which had developed in the testimony in the morning. Q. Did he there testify in the May Peters disorderly house case and for selling liquor without a license? A. Well, he said he hadn’t been there and I had no chance to ask him any questions. By the court: Was he interrogated in both cases or in one? A. It was the first case, he said he hadn’t been there, then I didn’t get him for the second case.”

Whether or not there was a case before the mayor, in which May Peters was, as set forth in the indictment, “charged with selling liquor without a license and keeping and maintaining a disorderly house,” in view of all the testimony, may well be doubted. It does not appear that any information was made against May Peters, or that any warrant was issued for her arrest, or that any docket entries were made, in which such a charge was contained, but even if there had been and she had been legally charged with the offense set forth, it clearly appears from the testimony of the mayor that the defendant was not called as a witness in such a case but was a witness in the case of the commonwealth against the five cabmen, in which May Peters was the prosecutor.

Subsequently, on cross-examination, the defendant endeavored to show by the mayor that there had been no separate charge or hearing against May Peters, as appears by the testimony: “Do you mean to say there was a charge on your docket in the morning against May Peters? A. We can’t tell, but in the morning it developed that Mrs. Peters was selling liquor according to their statement without a license and at the same time was maintaining a disorderly house, and then I directed the chief of police to have her there and at the same time to have her enter bail of $100 or keep her in custody. By the Court: Q. Did you dispose of that ease singly, or did you hold both hearings at the same time? A. I held them at the same time. Q. So there was no two distinct hearings? A. No, sir, because there was testimony which convinced me that she had violated an ordinance, and I fined her. ... Q. It was one prosecution? A. Yes, and when a complainant comes to me and he has violated the city ordinance why, I punish him.”

However doubtful it may, therefore, be, whether or not May Peters was charged, as alleged in the indictment, with a separate offense, or a separate hearing was held in her case, it is clear from the testimony that the defendant was not examined as a witness in the proceeding in which he is alleged to have sworn falsely in the indictment. There is no allegation that the indictment itself is not good, but that the evidence does not sustain it, and this, upon a careful examination of the testimony, we think is established. The defendant was, therefore, entitled to an affirmance of his fourth point, that “Under all the evidence in the case, the verdict must be one of acquittal,” the refusal of which constitutes the second assignment of error.

The defendant also complains in his first* assignment of a qualification to the answer of the court to the affirmance of his first point. The entire answer was as follows: “I could deny this point taken as a whole, but I might lay myself open to be misunderstood by the jury, and I, therefore, affirm it, with this qualification, that it must be taken with my instruction as to what constitutes a reasonable doubt, and further, that the court has already decided that the fact which it is alleged Focht testified to is material. The point is affirmed. In other words, gentlemen of the jury, you must find that he testified in a proceeding had before Mayor Schaeffer against May Peters for keeping a disorderly house or whatever proceeding is charged in the indictment — for selling liquor without a license.” The appellant construes this to mean that the court gave binding instructions to the jury to find the fact stated in the qualifying clause in the answer. We do not so construe it. As we view the qualification in the answer, it is as if the court had said, “ In other words, gentlemen of the jury, in order to a conviction you must find, or it is necessary that you should find,” etc. It simply tended to guide the jury as to what was necessary to secure a conviction, and did not amount to an express direction to find the facts therein stated. The first assignment of error is not sustained.

Holding as we do, that the evidence did not sustain the indictment in its material averments as to the proceeding in which the testimony of the defendant alleged to be false was taken, we are of the opinion that the conviction cannot be sustained.

Judgment reversed and the defendant is hereby discharged without day.


author: Orlady, J.,

text:
    Brown v. Waite, Appellant.

      Appeals — Assignments of error — New trial.

    1. A refusal of a new trial is not assignable as error.

      Malicious prosecution — Probable came — Evidence—Grounds for belief —Province of court and jury.

    2. To support an action for malicious prosecution the plaintiff must show want of a probable cause. While it is exclusively the province of the jury to pass upon the testimony and to ascertain the facts, it is the duty of the court to say as a matter of law, where the facts are undisputed, whether the facts established do or do not amount to probable cause. What is the probable cause, and whether it exists under an admitted or clearly established state of facts, is a question of law for the court. The question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the belief of the prosecutor in the existence of the probable cause, based on reasonable grounds. The question does not depend upon the actual state of facts in the case, but upon the honest and reasonable belief of the prosecutor. It is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused party guilty of the offense.
    Argued Oct. 14, 1908.
    Appeal, No. 62, Oct. T., 1908, by defendant, from judgment of C. F. No. 1, Phila. Co., June T., 1906, No. 4,917, on verdict for plaintiff in case of Aubrey H. Brown v. Henry F. Waite.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Trespass to recover damages for malicious prosecution.
    Kinsey, J., charged in part as follows:
    The question comes up to you to determine what were the motives of Dr. Waite in this prosecution; that is, in this arrest and imprisonment of Brown, this plaintiff. In reaching a conclusion upon this, you will take all the facts in this case under your consideration. You have heard them yesterday and to-day, they are fresh in your memories and you can recall them as clearly as I could reiterate them to you. The transaction covered a period of about one week, from, I think, August 11 to 18. On that Saturday night, or Sunday morning, the dog disappeared from in front of a saloon, into which Fisher, who had had the custody of him for Dr. Waite, had entered, leaving the dog upon the outside. When he again came out on the street the dog had disappeared. .You heard the story of the disappearance and the finding of it upon the street by Keel, and his taking of it to his home, and also as to Brown’s relations to the matter. All the way through the case, — and I beg you will bear this in mind clearly, — all through the case you must discriminate Brown’s relations to this' transaction apart from those of the Keel family.
    Brown’s statement to you is that upon Sunday morning he saw that dog in the yard, he asked its history and was told that it had followed home one of the Keel boys in the nighttime; that on that afternoon he took it out upon the street for exercise; that he was accustomed to working, he tells you, at Cramp’s at night and slept through the daytime. This was Sunday that he took it for a walk upon the street, and that he had no further relations to the dog until he saw the advertisement in the “Bulletin” upon Monday afternoon, of $25.00 reward; that thereupon he and one of the Keel boys went to the address given in the “ Bulletin,” saw Fisher and Fisher said that he could not go that evening but upon Tuesday night he would come to the house where the dog was and identify it, if it was his. He tells you he said that for the reason that he wanted the interval of time for consultation with Dr. Waite. On Tuesday night Fisher did go to the house, saw the dog and said it was not his dog. Brown says Fisher did not say that it was Dr. Waite’s dog, but he said simply it was not his dog,— “this is not my dog that I advertised for.” Fisher, as against that, says he said it was not his dog, it was Dr. Waite’s dog; thereupon the report was made, I suppose, to Dr. Waite — we can infer — for the next day, Dr. Waite, this being Wednesday, paid a visit to the house and the trouble occurred at the window. Dr. Waite says that he was violently denounced by one of the Keel boys. The mother, who was on the stand this morning, says the doctor called him a rogue and a thief, or some words to that effect, which resulted in this altercation; thereupon Dr. Waite gives one of his young men, an assistant, as he tells you, $25.00 and likewise that he had the $25.00 reward with him to pay if needs be at the time of his morning visit, but that there was no tender of it, no offer of it or mention made either then or at any time. The two young men, the doctor’s assistant and a friend, visited the neighborhood upon Wednesday evening, I think it was, and the answer given them was that the dog was out at that time for a walk with Brown; that they waited around for three hours, that neither dog nor Brown returning they returned and reported to the doctor. Thereupon next day the warrant was issued; a warrant was issued for the Keel boy and for Brown, the plaintiff here. The plaintiff was taken to a magistrate, and in default of bail was committed to prison, and while he was in prison, as I recall the testimony — my accuracy or otherwise is always for you — a search warrant was issued and possession of the dog was secured. Plaintiff was brought up again to the magistrate’s and discharged and the case ended.
    Now, it will be a question for you to say how far there came into the mind of Dr. Waite any knowledge that would lead a prudent man to the conclusion that Brown was guilty of anything relating to the theft of that dog. Did he have anything to do with the original getting of the dog? Was his action subsequently to its being brought to the house evidential of any guilt upon his part in regard to this dog being stolen? Did Dr. Waite ever see Brown and ask him about the dog? Was it what the law would define in this case as malice, a reckless disregard of his duty to a fellow citizen, to Brown? The question will present itself to you, and your judgments and consciences mu^t answer as to whether or not it was to avoid the payment of this $25.00 reward. Dr. Waite had it in his power at any time to take possession of this dog, either physically, if needs be, without breach of the peace, or by legal process which was open to him through the sheriff's office, which would have taken this dog for him. Was there an invasion of that most precious of all human rights, probably the most precious and sacred, that of personal liberty, for the sake of evading the payment of this $25.00 reward? In other words, was it a scheme to avoid payment of the reward? Did Dr. Waite act prudently and considerately? Should he have seen Brown and stated to Brown as he did to one of the Keel boys, “I am going to have you arrested for stealing my dog?” So that his explanation of all he knew of the matter might have been considered before arresting him. Was he ever brought into relations with Brown before? What information did he get upon which he issued this oath in the formal language that is prescribed for an oath of that kind where he says, “upon information and belief”? He takes it, he tells you, from a stranger, a woman across the street whom he was unacquainted with, and whose character for truth and veracity he did not know. She told him that Keel and Brown upon that night had taken the dog out on Girard avenue, or wherever the saloon or bottling establishment was, put a strap around the dog's neck and had taken him away.
    The question comes simply to this: What was the mood of the mind of the doctor when he brought this prosecution? If it was honest, if he believed Brown stole his dog, or if he believed Brown was an accomplice of those who stole the dog, if he believed from good reliable sources such as a prudent man would be moved by, if he had just and honest cause for doing as he did, then of course he is not guilty and not responsible in damages. If, however, he was not so free from all these motives, such as malice, as the law calls it, if he was moved by some personal interest, if, as I said a moment ago, he was endeavoring to evade responsibility for the $25.00, if as he himself testified this morning that he had stated to his young man on that Wednesday'evening, “Bring the dog back anyhow, but the dog and the $25.00, too, if you can,” — if you are convinced that was an indication of his motive, and you so find, then he may become responsible for unjustly prosecuting this plaintiff.
    February 26, 1909:
    Verdict for plaintiff for $1,000 upon which judgment was entered for $300, all above that amount having been remitted.

      Errors assigned were in refusing binding instructions for defendant and in refusing a new trial.

      C. Oscar Beasley, for appellant.

      Evan B. Lewis, for appellee.
   Opinion by

Orlady, J.,

The second assignment of error, viz.: “The learned court below erred in refusing the defendant’s motion for a new trial,” has been so frequently held by both the Supreme and this court, not to be reviewable except for flagrant error, that it is not necessary more than to refer to Stern v. Johnson, ante, p. 1, filed December 15, 1908, in which the authorities are collated.

The first assignment of error is, “The learned court erred in refusing to charge that defendant was entitled to a verdict.” The action is one for malicious prosecution, in which the plaintiff was discharged before the magistrate on the application of the prosecutor, after he had been arrested and committed to prison.

To support an action for malicious prosecution the plaintiff must show want of a probable cause. While it is exclusively the province of the jury to pass upon the testimony and to ascertain the facts, it is the duty of the court to say as a matter of law, where the facts are undisputed, whether the facts established do or do not amount to probable cause. What is probable cause, and whether it exists under an admitted or clearly-established state of facts, is a question of law for the court. The question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the belief of the prosecutor in the existence of the probable cause, based on reasonable grounds. The question does not depend upon the actual state of facts in the case, but upon the honest and reasonable belief of the prosecutor. It is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused party guilty of the offense: Robitzek v. Daum, 220 Pa. 61; Markley v. Snow, 207 Pa. 447; Campbell v. Sidwell, 20 Pa. Superior Ct. 183.

The real issue, whether the prosecution was brought in good faith, and on probable cause, was very clearly stated by the learned trial judge, and the instruction given to the jury was so clear, that there could be no doubt in regard to their application of the law to the disputed facts as submitted to them.

The case was carefully tried in the court below, and there was no substantial error of which the defendant has just ground for complaint. The judgment is affirmed.


text:
    Burns, Appellant, v. Burns.

      Divorce — Desertion—Evidence.
    Where a drunken husband leaves his wife and stays away from her for more than the statutory period and makes no provision for her support, the fact that she has offered to live with him again if he would provide a home and to condone his past offenses, can have no weight against her in a proceeding for divorce, if such offer was made in good faith.
    Argued Oct. 14, 1908.
    Appeal, No. 117, Oct. T., 1908, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 21, dismissing libel in divorce in case of Emma C. S. Burns v. Edward A. Burns.
    February 26, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Libel for divorce.
    The opinion of the Superior Court states the case.

      Error assigned was in reversing the master, Philippus W. Miller, Esq., and dismissing the libel.

      Frank M. Cody, for appellant.
    No printed brief for appellee.
   Opinion by

Orlady, J.,

The libel in this case charged the respondent with having willfully and maliciously deserted the libelant and absenting himself from her habitation for more than two years prior to filing the libel. The respondent appeared before the master as a witness, was examined at length and cross-examined the other witnesses. After hearing all the testimony and making two reports, the master recommended a decree in divorce a vinculo matrimonii, which was subsequently disapproved by the court, and it was ordered that the prayer of the libelant be refused and the libel dismissed.

Every material fact testified to by the wife was corroborated by a number of witnesses. A separation was admitted, and while he denied in terms that he deserted his wife and that he had any intention of deserting her, but that on the other hand, he had the greatest regard for her, his conduct toward her was of such a character as to fully justify her in withdrawing from his company. The master concluded, and we think rightly so, that there was no collusion in the case, and that the testimony of the libelant and her witnesses entitled her to a divorce.

When the parties were married, February 19,1901, they went to housekeeping in Philadelphia, and lived together until April 29 following, when after a dispute which was entirely due to his drunken condition, he left her and the home. He admitted that he drank from ten to fifteen glasses of beer a day, but contended that it had no effect on him. After the desertion, the wife kept the house open until the latter part of July, when the respondent not returning, she moved to a different part of the city and engaged in business. The parties met frequently either by appointment or accident, and she endeavored to have him come and live with her, and resume their relation of husband and wife, consenting to go to any place he would select if he would but provide a home. At one time while suffering with nervous prostration as a result of excessive drinking, she went to him in his distress, and remained for nine days as his nurse, but at no time after the desertion in 1901, did he contribute anything toward the support of his wife.

She made continuous efforts toward his reformation, and maintaining a home; while he made frequent promises to provide a home, he never did so. Further, his own testimony is full of contradictions, and does not impress us as being either a candid or truthful narrative. This desertion was continuous for more than the statutory time, since the parties had any semblance of marital intercourse, the date, July 20, 1905, being fixed by the evidence, when all such relation between the two ended. Her offer to condone his past offenses and to accept him as her husband, should not be weighed against her, if such an offer was made in good faith under the rules laid down in Gordon v. Gordon, 208 Pa. 186; Hedderson v. Hedderson, 35 Pa. Superior Ct. 629.

We are satisfied after a careful examination of the evidence that the uncontradicted testimony of the libelant, which is supported in every material phase by that of her husband, and by a number of disinterested witnesses, establish the statutory grounds upon which a divorce for desertion is allowed. The decree dismissing the libel is reversed, and a decree of divorce a vinculo matrimonii with costs is now entered in favor of the libelant.


author: Henderson, J.,

text:
    Beaumont, Appellant, v. Philadelphia & Reading Railway Company.

      Carriers — Common carriers — Railroads—Unloading freight.

    1. It is ordinarily the duty of the carrier to unload the freight and deposit it in a suitable place at which the consignee may receive it; but there is an exception to this rule in the case of bulky freight as to which in the case of shipment by cars the carrier is not required to remove it from the car, but discharges its obligation by delivering the car in a safe and convenient position for unloading at the place designated by the contract, or, in the absence of such designation, on its side track in the usual and customary place for unloading by consignees.
    2. Where a railroad company places on a side track conveniently located for the removal of freight, a car containing four segmental castings each weighing about two and one-half tons and notified the consignee, the railroad company has done its full duty, and cannot be held liable for an injury to one of the castings while it is being unloaded by a teamster employed by the consignee, who has full charge and direction of the work.
    3. Where an owner or consignee accepts freight in a car, and undertakes to unload it, he is responsible for any injury incurred during the progress of the unloading.
    Argued Oct. 7, 1908.
    Appeal, No. 37, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1904, No. 4,158, on verdict for defendant in case of Charles 0. Beaumont, trading as Joseph Oat & Sons, v. Philadelphia & Reading Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass against a common carrier for damages caused by the breaking of a casting while being unloaded from a car. Before Audenried, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [The defendant’s duty with respect to these belts as a common carrier had ended. After the arrival of the belts in the city and notice to the consignee of their arrival, the duty of the defendant with respect to them was only that of warehouse keepers. The defendant is responsible for the loss of the belt that was broken only if its servants, acting within the scope of their authority, were guilty of some act of negligence which resulted in the breaking of the belt.] [3]
    February 26, 1909:
    Plaintiff presented these points:
    1. It was the duty of the defendant to safely unload the casting from its car, and as it is undisputed that the casting was broken in unloading, the burden of proof is on the defendant to prove that it was free from negligence. Unless you find the defendant free from negligence in unloading the said casting, you will find a verdict for the plaintiff. Answer: Refused.
    2. Under all the evidence your verdict must be for the plaintiff. Answer: Refused. [2]
    Verdict and judgment for defendant. Plaintiff appealed.

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

      Henry Spalding, with him David N. Fell, Jr., for appellant.
    The warranty of the carrier as an insurer is broken by nondelivery, and the question of negligence in the performance of its duty to deliver safely is, therefore, immaterial: Forbes v. Railroad Co., 133 Mass. 154; Eagle v. White, 6 Wharton, 505; DeMott v. Laraway, 14 Wendell, 225.
    Castings are not within the exception: Eagle v. White, 6 Wharton, 505; Graff v. Bloomer, 9 Pa. 114; Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109; Chicago & Rock Island R. R. Co. v. Warren, 16 Ill. 502; Covington Stock-Yards Co., v. Keith 139 U. S. 128 (11 Sup. Ct. Repr. 461); Ritz v. R. R. Co., 3 Phila. 82.

      John G. Lamb, for appellee.
    Heavy castings are within the exception: Gregg v. R. R. Co., 147 Ill. 550 (35 N. E. Repr. 343); Kirk v. Ry. Co., 59 Minn. 161 (60 N. W. Repr. 1084); Lewis v. R. R. Co., 52 Mass. 509; Sweet v. Barney, 23 N. Y. 335; Loveland v. Burke, 120 Mass. 139.
   Opinion by

Henderson, J.,

The counsel for the appellant and the appellee do not disagree in regard to the obligation of a carrier to transport safely and make delivery to the consignee, and that ordinarily it is the duty of the carrier to unload the freight and deposit it in a suitable place at which the consignee may receive it. They agree, too, that there is an exception to this rule in the case of bulky freight as to which in the case of shipment by cars the carrier is not required to remove it from the car, but discharges its obligation by delivering the car in a safe and convenient position for unloading at the place designated by the contract or, in the absence of such designation, on its side track in the usual and customary place for unloading by consignees. The appellant contends, however, that this case is not within the exception. The contract was for the transportation of four iron castings consigned to the plaintiff to be delivered at Twenty-third and Arch streets, Philadelphia. Each of them was a segment having a chord of twelve feet and weighing about two and one-half tons. The car on which they were placed arrived safely at the destination, was placed on a side track conveniently located for the removal of the freight; the consignee received notice of its arrival, sent teamsters with wagon to take it away and the man in charge for the plaintiff receipted for the property. The learned trial judge instructed the jury that this was a performance of the contract of carriage by the defendant and the facts, we think, bring the case within the exception to the general obligation on a carrier to unload freight. This exception doubtless has its origin in the fact that where lumber, coal, grain, ore and like merchandise is transported it is more convenient for the consignee to take the freight from the car than after it is discharged on the ground or in a warehouse. Convenience has established the custom and the law takes notice of such custom: Pitts., Cinn. & St. Louis Ry. Co. v. Nash, 43 Ind. 423; Kirk v. Chicago, etc., Ry. Co., 59 Minn. 161; Gregg v. Ill. Cent. R. R. Co., 147 Ill. 550; Hutchinson on Carriers, sec. 711; 4 Elliott on Railroads, sec. 1521. In the case of valuable merchandise and portable packages there is obvious propriety in requiring the carrier to remove the goods from the car and place them in its freight house for safe-keeping, but this reason does not hold in the case of bulky and heavy material of a kind not subject to the action of the elements, not easily handled and which would be less favorably situated with reference to the convenience of the consignee when off the car than on it, as in the case of stone, metal, lumber, etc., which is more easily delivered from the car than from the ground. The plaintiff’s castings were of this class. No advantage could result to the consignee by delivering such freight on the ground in the yard, and there is nothing in the case to indicate that the plaintiff expected such delivery. On the contrary, it is apparent that the plaintiff’s servants came to the yard with the expectation of getting the freight from the car. The castings were not only heavy but bulky and such as could hot be handled with profit either to the carrier or the consignee except when actually necessary, and it is reasonable to suppose that it was not in con-, templation by the parties that this freight would be delivered onto the ground or platform and the plaintiff left to get it away as best he could. The fact that the defendant had a permanent steam crane in the yard used for the transfer of heavy freight does not affect the defendant’s liability. That was a convenience rather for shippers than for the company. It would probably have a tendency to attract patronage to that yard because of the facility for moving such merchandise^ but its presence would not increase the obligation of the defendant. Without it the burden would be on the receiver of such freight to bring with him a large force of men or mechanical apparatus sufficient to make the transfer. It was, therefore, greatly to the advantage of the plaintiff to have the use of the crane without cost.

There is another view of the case also which affects the right of recovery. The evidence introduced by the plaintiff shows that the teamster who went for the freight directed the method of unloading and used his own judgment as to the manner in which he loaded his wagon. The casting was lying on its side; the teamster was warned that his wagon was not large enough to hold it and he required that it be turned so that it would lie in the cradle of the wagon with its ends up. An employee of the defendant assisted in the operation and it was while the casting was being shifted in accordance with the teamster’s direction that the piece was broken. The teamster came there with authority to take the freight and he represented the plaintiff for that purpose, and this subjects the plaintiff to the operation of the rule that where the owner or consignee accepts the freight in the car and undertakes to unload it he is responsible for any injury incurred during the progress of the unloading: Moore on Carriers, p. 152; Lewis v. Western R. R. Co., 52 Mass. 509; Loveland v. Burke, 120 Mass. 139; Sweet v. Barney, 23 N. Y. 335; 5 Am. & Eng. Ency. of Law (2d ed.), 193. For any interference with or control of the manner of delivery by the consignees the defendant is not responsible. It would be a harsh application of the doctrine of responsibility to hold that a carrier was liable for an accident in the discharge of freight made in a manner requested by, and for the convenience of, the owner. There is nothing in the case to indicate that there would have been any difficulty in transferring the castings to the ground or platform or onto the wagon sent by the plaintiff if the wagon had been large enough to receive it provided the transfer had been made with the casting lying fiat. The accident occurred because of the method adopted by the appellant’s agent, for which we think the defendant is not responsible.

The judgment is affirmed.