author: McEWEN, Judge:

text:
    455 A.2d 1232
    COMMONWEALTH of Pennsylvania v. Sanford BERNSTEIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1981.
    Filed Jan. 28, 1983.

      A. Charles Peruto, Philadelphia, for appellant.
    James B. Martin, Assistant District Attorney, Allentown, submitted a brief on behalf of Commonwealth, appellee.

      Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

We here review an appeal from a judgment of sentence to a term of imprisonment of from five to ten years and a fine of $25,000.00 imposed following a finding by a jury that appellant Sanford Bernstein was guilty of criminal solicitation to murder his then estranged wife. We vacate the judgment of sentence and remand for an evidentiary hearing.

Appellant first argues that the Common Pleas Court committed an abuse of discretion when it denied the motion for a new trial on the basis of after-discovered evidence, specifically, a recantation statement made by Jim Coleman, a principal Commonwealth witness and an acquaintance of both appellant and Mrs. Bernstein. Coleman testified at trial that appellant told him, “I want you to blow my wife away” and asked Coleman to name his price. The next day Coleman informed Mrs. Bernstein and one of her private security guards about this conversation, and they in turn informed the Allentown Police Department. Tony Pa-drone, an officer of the Catasauqua Police Department, and one of the number of private guards hired by Mrs. Bernstein, contrived with Coleman to arrange a telephone conversation between Coleman and appellant over which Pa-drone and two other officers, who also worked as private security guards for Mrs. Bernstein, might eavesdrop. In the presence of Officers Padrone, Layton and Alvin, Coleman advised appellant by telephone that he himself could not carry out the murder but that he could arrange for someone else to do so, and pursuant to the plan of the officers, Coleman subsequently advised appellant that Alvin would be interested in the job. Coleman further testified that appellant subsequently discussed with Alvin, at an arranged meeting, the different methods of and fees for the murder of Mrs. Bernstein and delivered to Alvin the sum of $5,000.00 as partial payment for the murder.

The after-discovered evidence upon which the motion for new trial was based was a recantation statement made by Coleman in which he stated (1) that appellant only kidded about “blowing his wife away”; (2) that, following his meeting with appellant, appellant did not contact Coleman, but, rather, the law enforcement officials, who also acted as private security guards for Mrs. Bernstein, were the ones who suggested that Coleman get in touch with appellant; (3) that when appellant met Alvin, Coleman did not hear any discussion concerning a plan for the murder of Mrs. Bernstein; and (4) that the officers employed by Mrs. Bernstein had told him what to say.

Our Supreme Court has held that after-discovered evidence is the basis for a new trial if it:

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978), citing Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971).

The Common Pleas Court here carefully scrutinized the after-discovered evidence but did not conduct an evidentiary hearing. Rather, the court determined that, even if the recantation statement were true, the recantation evidence was more corroborative than contradictory, the points in conflict were not critical and the evidence was not of such a nature as to compel a different result than the verdict of guilty that had been rendered by the jury. As a result, the court refused to grant a new trial on the basis of this after-discovered evidence.

It is our view, however, that the after-discovered evidence, namely, the allegations in the notarized statement of Mr. Coleman, the principal Commonwealth witness, given some six months after the trial, is not merely corroborative, is not merely cumulative and does not merely impeach the credibility of a witness. Rather, the post-trial statements of Mr. Coleman impact not only upon the state of mind of appellant during those early discussions which composed a portion of the criminal solicitation, but also upon the defense of appellant that the agents employed to guard the purported victim were provocateurs who stimulated the criminal solicitation. While it may be true that the Commonwealth produced evidence that would have enabled a finding of guilt even without the testimony of Mr. Coleman, a premise of some doubt, the testimony of Mr. Coleman was an integral part of the presentation of the Commonwealth and his testimony concerning the criminal conduct of Mr. Bernstein, as well as the activities of the agents of Mrs. Bernstein, was certainly evidence that would have received careful consideration by the jury. We conclude, therefore, that the after-discovered evidence is of sufficient substance that the Common Pleas Court must hold an evidentiary hearing to determine whether the recantation statement of Mr. Coleman is credible.

We realize that recantation testimony is considered extremely unreliable and that it is the duty of the trial court to deny a new trial unless satisfied that such testimony is true. Commonwealth v. Gaddy, 492 Pa. 434, 424 A.2d 1268 (1981); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979); Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). The issue of credibility can better be resolved, however, when the trial court conducts a full evidentiary hearing and is thereby able to observe the manner and demeanor of the witness as he delivers his recantation testimony in an adversary proceeding. See Commonwealth v. Gaddy, supra. The conduct of such a hearing is especially necessary in this case since the Common Pleas Court Judge who studied and decided the post-trial motions was not the trial judge and had not been afforded an opportunity to witness the testimony and observe the demeanor of the recantating witness. Thus, we remand to the Common Pleas Court to conduct an evidentiary hearing and determine whether the recantation evidence is sufficiently credible to warrant the grant of a new trial.

Appellant sets forth three additional questions for our consideration:

Did the lower court abuse its discretion in sentencing the appellant to the maximum sentence provided by the law? Was trial counsel ineffective for failing to object to improper remarks in the prosecutor’s closing speech? Was trial counsel ineffective for failing to request an instruction to evaluate Commonwealth witnesses, Michael Alvin and/or James Coleman, as accomplices?

After a thorough review of the record and a careful study of the briefs for the parties, we conclude that there is no merit to these contentions.

Accordingly, we vacate the judgment of sentence and remand for an evidentiary hearing consistent with this opinion. Jurisdiction is relinquished.

      . Appellant has included in the reproduced record statements from two persons which corroborate the recantation statement of Coleman. Appellant did not, however, refer to these two statements in the motion for new trial on the basis of after-discovered evidence. Thus, we do not consider these statements in our review of this case.

      . Mrs. Bernstein testified at trial that as a result of prior threats made against her by appellant, she had hired a number of off-duty police officers to act as private security guards.


source: Caselaw Access Project

license: Public Domain

text:
    455 A.2d 1235
    EASTERN ENGINEERING & ELEVATOR CO., INC., Appellant, v. AMERICAN RE-INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed Jan. 28, 1983.

      Christina Barbieri, Philadelphia, for appellant.
    Morris R. Brooke, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   McEWEN, Judge:

We here consider an appeal from an order which granted summary judgment in favor of the defendant-appellee American Re-Insurance Company and against the plaintiff-appellant Eastern Engineering & Elevator Co., Inc. We affirm.

Appellant purchased in 1964 an insurance policy from the LaSalle Casualty Company (LaSalle) which provided, inter alia, that LaSalle would defend claims made against appellant under the policy and pay the legal costs and expenses incurred in connection with the defense of such claims. LaSalle then insured itself by means of a re-insurance contract with appellee which provided, inter alia, that appellee would reimburse LaSalle to the extent of fifty percent of the amount LaSalle paid out during the period covered, including costs of defense.

On February 20, 1964, as a result of an accident on a construction site, four personal injury suits were filed against appellant. Prior to the time these suits came to trial, LaSalle became insolvent and was placed in receivership by the Insurance Department of the State of Illinois. Since neither LaSalle nor the liquidator were in a position to defend the action, appellant itself undertook the defense and obtained a dismissal of the suits. Appellant then brought this suit against appellee to recover counsel fees in the amount of $7,505.00.

Reinsurance refers to an “undertaking whereby one insurer agrees to protect another insurer, known as the reinsured, either wholly or partially from a risk which it has undertaken, both policies being in effect at the same time, and the original insured having no interest in the reinsurance.” 13A Appleman, Insurance Law & Practice § 7681, at 484-85 (1976). When an insurer has the subject of insurance reinsured to him by another, there is “no privity between the original insured and the reinsurer; the latter is in no respect liable to the former as a surety or otherwise; the contract of insurance and of reinsurance being totally distinct and disconnected.” Appeal of Goodrich, 109 Pa. 523, 529, 2 A. 209, 211 (1885). The insolvency of the original insurer does not change the nature of the reinsurer’s obligation so as to permit the insurer to pursue it directly.” 19 Couch on Insurance, § 80:66 at 959 (R.A. Anderson ed., 2d ed. (1959)). “The insured may, however, bring a direct action against the reinsurer where a proper third-party beneficiary contract to that effect may be found or where the reinsurer is a successor which has assumed the original insurer’s liabilities.” 19 Couch on Insurance, supra, § 80:67 at 959.

In the instant case, the appellant does not argue that a third-party beneficiary contract existed or that the appellee is a successor which has assumed the liabilities of LaSalle. Rather, appellant argues that section 117 of the Pennsylvania Insurance Code (40 P.S. § 117) authorizes a direct action by an insured against a reinsurer of an insolvent insurer. That section provides:

§ 117 Indemnity insurance; statement as to insolvency or bankruptcy of insured
No policy of insurance against loss or damage resulting from accident to or injury suffered by an employee or other person and for which the person insured is liable, or against loss or damage to property caused by animals or by any vehicle drawn, propelled or operated by any motive power and for which loss or damage the person insured is liable, shall hereafter be issued or delivered in this State by any corporation, or other insurer, authorized to do business in this State, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss occasioned during the life of such policy, and stating that in case execution against the insured is returned unsatisfied in an action brought by the injured person, or his or her personal representative in case death results from the accident, because of such insolvency or bankruptcy, then an action may be maintained by the injured person, or his or her personal representative, against such corporation, under the terms of the policy, for the amount of the judgment in the said action, not exceeding the amount of the policy.

Appellant attempts to extend the application of this statute to the instant situation and argues that appellant is the injured party, LaSalle is the insured and appellee is the insurance carrier. A mere reading of the statute makes clear that this provision does not apply to the situation we here study. For example, section 117 requires that a suit may be brought against an insurer only when “execution against the insured is returned unsatisfied in an action brought by the injured person, or his or her personal representative in case death results from the accident, because of such insolvency or bankruptcy ... however, appellant did not allege that it brought an action against LaSalle nor is there any allegation that appellant filed a claim with the Illinois State Liquidator. Thus, appellant cannot rely on section 117 as statutory authority for this proceeding against appellee, the insurer of LaSalle.

While we are in agreement with the contention of appellant that the public policy of this Commonwealth, as expressed by the legislature, is to protect the interests of insureds, see 40 P.S. § 221.1(c), it seems the legislature itself undertook to provide for that interest by establishing an orderly procedure in the event of the insolvency of an insurer. 40 P.S. § 221.1 et seq. The liability of reinsurers in such a situation is specifically addressed in section 221.34 of the statute which provides:

§ 221.34 Reinsurer’s liability
The amount recoverable by the liquidator from reinsurers shall not be reduced as a result of delinquency proceedings, regardless of any provision in the reinsurance contract or other agreement. Payment made directly to an insured or other creditor shall not diminish the reinsurer’s obligation to the insurer’s estate except when the reinsurance contract provided for direct coverage of an individual named insured and the payment was made in discharge of that obligation.

It, therefore, appears that, unless the reinsurance contract provides for payments to the individual named insured, the liability of the reinsurer is intended to run to the estate of the insolvent insurer for the eventual benefit of the insureds and not directly to the policyholders of the insurer.

Appellant also argues that appellee was obligated to defend the action brought against Eastern by reason of paragraph 16 of the reinsurance agreement which provides, inter alia:

[T]he reinsurer may investigate such claim and interpose, at its own expense, in the proceeding where such claim is to be adjudicated any defense or defenses which it may deem available to the Company, its liquidator or receiver or statutory successor.

This provision permits appellee to investigate and interpose a defense, but it does not impose a duty on the appellee to defend such actions. Thus, the appellee in this case had no duty to provide for the defense of appellant.

The order of the venerable Philadelphia County Common Pleas Court Judge Jerome A. O’Neill is affirmed.

      . A motion for summary judgment will be granted only in cases where there exists no genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law. Pennsylvania Rule of Civil Procedure 1035(b).

      . We note that the three members of a panel of this court in Schuylkill Products, Inc. v. H. Rupert and Sons, Inc., 305 Pa.Super. 36, 451 A.2d 229 (1982), each addressed this issue. The learned Judge Donald E. Wieand in the lead opinion declared that “there is no right of direct action against a reinsurer by any party except the reinsured.” Id., 305 Pa.Super. at 40, 451 A.2d at 231. The distinguished Judge Justin M. Johnson advised in a concurring opinion that “there are situations that I foresee where the original insured should be permitted to sue a reinsurer directly.” Id., 305 Pa.Super. at 45, 451 A.2d at 234. The eminent Judge Edmund B. Spaeth, Jr. advocated in his dissent the abandonment of the traditional rule which bars suits by an original insured against the reinsurer.


text:
    January 7, 1983.
    455 A.2d 187
    Commonwealth v. Albaugh, Appellant.
    Submitted May 20, 1982.
    John Edward Blahovec, for appellant; Albert Nichols, District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Order affirmed.


text:
    455 A.2d 187
    Commonwealth v. Alexander, Appellant.
    Submitted September 28, 1981.
    Samuel J. Orr, III, for appellant; John L. Brown, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Orders affirmed.


text:
    455 A.2d 187
    Commonwealth v. Ayres, Appellant.
    Submitted February 23, 1982.
    Robert F. Pappano, Assistant Public Defender, for appellant; Vram Nedurian, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The order of the court is affirmed.


text:
    455 A.2d 188
    Commonwealth v. Diaz, Appellant.

      Submitted April 22, 1982.
    Jeffrey Louis Schmehl, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 188
    Commonwealth v. Elliott, Appellant.
    Submitted March 3, 1982.
    David P. Trulli, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 188
    Commonwealth v. Griffin, Appellant.
    Submitted June 2, 1982.
    Ben W. Joseph, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 188
    Commonwealth v. Guerrero, Appellant.
    Submitted June 3, 1982.
    Blaise H. Coco, Jr., appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence is affirmed.

CIRILLO, J., filed a memorandum concurring opinion.


text:
    455 A.2d 189
    Commonwealth v. Hill, Appellant.
    Petition for Allowance of Appeal Denied April 15, 1982.
    Submitted May 20, 1982.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 189
    Commonwealth v. Johnson, Appellant.
    Petition for Allowance of Appeal Denied April 7, 1983.
    Argued February 17, 1981.
    Leonard Rubin, for appellant; Steve T. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTEMURO and VAN der YOORT, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 189
    Commonwealth v. Johnson, Appellant.
    Submitted February 24, 1982.
    Norman M. Abrams, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.

SPAETH, J., filed a memorandum concurring statement.


text:
    455 A.2d 190
    Commonwealth v. Jones, Appellant.
    Submitted September 29, 1982.
    Larry D. Feldman, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   Order affirmed.

SPAETH, J., concurred in the result.


text:
    455 A.2d 190
    Commonwealth v. Lane, Appellant.
    Submitted June 3, 1982.
    Ellen M. Donsky, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, CIRILLO and JOHNSON, JJ.
   The order is affirmed.


text:
    455 A.2d 190
    Commonwealth v. LaRew, Appellant.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Submitted May 20, 1982.
    Vincent J. Roskovensky, II, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Order affirmed.


text:
    455 A.2d 190
    Commonwealth v. Seifrit, Appellant.
    Submitted September 16, 1981.
    John A. Goldstan, for appellant; Charles M. Guthrie, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 191
    Commonwealth v. Sesso, Appellant.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.
    Submitted December 9, 1981.
    Robert F. Pappano, for appellant; Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   The order of the lower court is affirmed.


text:
    455 A.2d 191
    Commonwealth v. Tench, Appellant.
    Submitted May 20, 1982.
    Paulette J. Balogh, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 191
    Commonwealth v. Toner, Appellant.
    Submitted January 28, 1981.
    Michael A. Raffaele, for appellant; Thomas A. Regan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 192
    Giantonio v. Pickering Creek et al. Appeal of Pickering Creek Industrial Park, Inc.
    Argued February 16, 1982.
    Edward M. Dunham, for appellant; Andrea Bowman, for Giantonio, appellee; W. Richard Gentry, for Krupnick, et al., appellees.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.


text:
    456 A.2d 666
    PGH. Outdoor Advertising v. Model Coat, etc., Appellant.
    Reargument Denied March 21, 1983.
    Argued March 17, 1982.
    Charles F. Bennett, Jr., for appellant; E.G. Shoemaker, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of court of April 17, 1980 is affirmed.


text:
    455 A.2d 192
    Schulter v. Steffish, Jr., Appellant.
    Petition for Allowance of Appeal Denied April 15, 1983.
    Argued March 15, 1982.
    George John Steffish, III, for appellant; Silvio P. Cerchie, for appellees.
    JBefore SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the trial court is affirmed.

SPAETH, J., concurred in the result.


text:
    455 A.2d 192
    Strugalski v. Shoecraft, Appellant.
    Argued March 17, 1982.
    John Wesley Jordan, for appellant; John F. Becker, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the lower court is affirmed.


text:
    January 14, 1983.
    455 A.2d 192
    Collins etc. v. County of Lackawanna, Appellant.
    Argued June 2, 1982.
    Paul A. Barrett, for appellant; James T. McHale, for appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    455 A.2d 193
    Commonwealth v. Bernstein, Appellant.

      Submitted March 3, 1982.
    Dennis Woody, for appellant; Vram Nedurian, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Order affirmed.


text:
    455 A.2d 193
    Commonwealth v. Craft, Appellant.
    Argued November 8, 1982.
    Carmela R.M. Presogna, Assistant Public Defender, submitted a brief on behalf of appellant; Shad Connelly, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 193
    Commonwealth v. Dixon, Appellant.
    Submitted December 16, 1981.
    Patrick J. Duffy, for appellant; Deborah Fox, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    455 A.2d 194
    Commonwealth v. Fostar, Appellant.
    Submitted May 20, 1982.
    Richard E. McCormick, Jr., Assistant Public Defender, for appellant; Albert Nicols, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    455 A.2d 194
    Commonwealth v. Foster, Appellant.
    Submitted December 5, 1980.
    Richard M. Lovenwirth, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.

      Before CERCONE, P.J., CAVANAUGH and MONTEMURO, JJ.
   Order affirmed.


text:
    455 A.2d 194
    Commonwealth v. Ginnery, Appellant.
    Submitted May 19, 1982.
    Gary Iorfido, for appellant; F. Bloom, III, Assistant District Attorney for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    457 A.2d 130
    Commonwealth v. Herring, Appellant.
    Reargument Denied March 29, 1983.
    Petition for Allowance of Appeal Denied July 20, 1983.
    Argued April 14, 1982.
    Daniel L. Webster, for appellant; James T. Davis, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.

JOHNSON, J., filed a memorandum dissenting opinion.


text:
    455 A.2d 194
    Commonwealth v. Hoff, Appellant.
    Argued November 18, 1981.
    Michael Balducci, for appellant; Thomas E. Boop, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   The judgment of sentence of the learned Northumberland County Common Pleas Court Judge Samuel C. Ranck is affirmed.


text:
    455 A.2d 195
    Commonwealth v. Lenahan, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Argued December 14, 1981.
    Charles J. Weiss, for appellant; Joseph Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of sentence of the learned Montgomery County Common Pleas Court Judge Samuel W. Salus is affirmed.


text:
    455 A.2d 195
    Commonwealth v. Maddox, Appellant.
    Petition for Allowance of Appeal Denied June 8, 1983.
    Submitted November 15, 1982.
    Eric L. Lilian, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    455 A.2d 195
    Commonwealth v. Moss, Appellant.

      Argued April 23, 1982.
    Karl Foster Longenbach, for appellant; Mark S. Refowich, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 196
    Commonwealth v. Pabon, Appellant.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Submitted May 26, 1982.
    Susan Iris Schulman, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    455 A.2d 196
    Commonwealth v. Starks, Appellant.

      Submitted October 26, 1982.
    Allan M. Tabas, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 196
    Commonwealth v. Stevens, Appellant.
    Submitted September 20, 1982.
    Harold E. Powell, Jr., for appellant; Michael Johnston, District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 196
    Commonwealth v. Yelverton, Jr., Appellant.
    Argued February 22, 1982.
    Lawrence S. Rubin, for appellant; Vram Nedurian, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, BROSKY and BECK, JJ.
   The orders of the lower court are affirmed.


text:
    455 A.2d 197
    Ettinger v. Ettinger, Appellant.
    Argued September 14, 1982.
    Harold F. Woelfel, Jr., for appellant; John Thomas Robinson, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    455 A.2d 197
    Herster, Appellant v. English.
    Argued April 26, 1982.
    Paul D. Shafer, Jr., for appellant; David Goodwin, for appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   Order affirmed.


text:
    455 A.2d 197
    King et al., Appellants v. City of Philadelphia et al.
    Submitted June 13, 1980.
    Herbert K. Fisher, for appellant; Michael Eiss, for City of Phila., appellee, and James M. Marsh, for Phila. Housing, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    455 A.2d 198
    Palencar, Appellant v. Urban.
    Argued May 12, 1982.
    Anthony B. Panaway, for appellant; Joseph J. Musto, for appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    457 A.2d 130
    Philadelphia Electric v. Halloran, Appellant v. Solkov Plumbing.
    Reargument Denied March 29, 1983.

      Argued February 18, 1982.
    Charles W. Craven, for appellant; Earl L. Britt, for appellees.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.

MONTGOMERY, J., filed a memorandum dissenting statement.


text:
    455 A.2d 198
    Royster, Appellant v. Liberty Mutual.
    Argued February 18, 1982.
    Allen L. Feingold, for appellant; Jo Fineman White, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.


text:
    455 A.2d 198
    Smith, Appellant v. Smith.

      Argued September 15, 1982.
    Larry C. Heim, for appellant; Frank C. Arcuri, for appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    455 A.2d 198
    Zimmerman v. Womack et ux., Appellants.
    Argued May 20, 1982.
    Eugene A. Lincoln, for appellants; David Zimmerman, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    January 21, 1983.
    455 A.2d 199
    Ceccotti, Appellant v. Nationwide Insurance Co.
    Petition for Allowance of Appeal Granted April 14, 1983.
    Submitted September 20, 1982.
    Allen H. Smith, for appellant; Patricia Ann Butler, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    455 A.2d 199
    Commonwealth v. Ball, Appellant.
    Submitted May 22, 1982.
    Benjamin S. Blakley, III, for appellant; F. Cortez Bell, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., MONTGOMERY and VAN der VOORT, JJ.
   Judgment of sentence of the lower court is affirmed.


text:
    455 A.2d 199
    Commonwealth v. Cozzi, Appellant. Commonwealth v. McGinness, Appellant.
    Submitted June 3, 1982.
    Anthony D. Miele, for appellants; Frederick D. Lingle, District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgments of sentence affirmed.


text:
    455 A.2d 200
    Commonwealth v. Demel, Appellant.
    Submitted February 24, 1982.
    Albert Joseph Flora, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 200
    Commonwealth v. Dickerson, Appellant.
    Submitted November 3, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele M. Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   The judgment of sentence is affirmed.


text:
    455 A.2d 200
    Commonwealth v. Digiacomo, Appellant.
    Petition for Allowance of Appeal Denied May 18, 1983.

      Submitted November 8, 1982.
    Melvin L. Vatz, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    455 A.2d 200
    Commonwealth v. Donohue, Appellant.
    Submitted April 22, 1982.
    John G. McDougall, for appellant; Andrew S. Kovach, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 201
    Commonwealth v. Drumgold, Appellant.
    Submitted February 24, 1982.
    Thomas V. Hunt, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.


text:
    455 A.2d 201
    Commonwealth v. Hoak, Appellant.
    Submitted September 30, 1981.
    John Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    455 A.2d 201
    Commonwealth, Appellant v. Houghton.
    Argued February 22, 1982.
    Laurence M. Kelly, District Attorney, for Commonwealth, appellant; Robert G. Dean, for appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The order of the court is affirmed.


text:
    455 A.2d 202
    Commonwealth v. Ingram, Appellant.
    Submitted February 23, 1982.
    Benjamin Lerner, Assistant Public Defender, for appellant; Gail Thackery, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 202
    Commonwealth v. Kemp, Jr., Appellant.
    Petition for Allowance of Appeal Denied April 12, 1983.
    Submitted May 20, 1982.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before ROWLEY, CIRILLO and VAN der VOORT, JJ.
   Order affirmed.


text:
    455 A.2d 202
    Commonwealth v. Koonce, Appellant.
    Submitted May 25, 1982.
    George Gershenfeld, for appellant; Gaele M. Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 202
    Commonwealth v. Lopez, Appellant.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Argued November 3, 1982.
    Jay M. Levin, for appellant; Eric Beller, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 203
    Commonwealth v. Martinez, Appellant.
    Petition for Allowance of Appeal Denied May 13, 1983.
    Submitted April 23, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.

WIEAND, J., concurred in the result.


text:
    455 A.2d 203
    Commonwealth v. McGarry, Appellant.
    Submitted March 15, 1982.
    Barbara H. Schickling, for appellant; F. Cortez Bell, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of March 3, 1981 is affirmed.

SPAETH, J., filed a memorandum concurring statement.

HOFFMAN, J., concurred in the result.


text:
    455 A.2d 203
    Commonwealth v. Mininall, Appellant.
    Argued February 23, 1982.
    Neil E. Jokelson, for appellant; Richard L. McMonigle, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.

SPAETH, J., filed a concurring memorandum opinion.


text:
    455 A.2d 204
    Commonwealth v. Pagan, Appellant.
    Submitted June 2, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   The judgment of sentence dated October 7, 1980 is affirmed.


text:
    455 A.2d 204
    Commonwealth v. Phillips, Appellant.
    Argued May 20, 1982.
    Kenneth Dean Chestek, for appellant; Shad Connelly, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 204
    Commonwealth v. Radogna, Appellant.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Submitted January 6, 1982.
    Bohdan J. Zelechiwsky, for appellant; James J. Narlesky, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Order affirmed.


text:
    455 A.2d 205
    Commonwealth v. Raio, Appellant.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Submitted May 25, 1982.
    Benjamin Lerner, Assistant Public Defender, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 205
    Commonwealth v. Scaramuzzino, Appellant.
    Submitted February 24, 1982.
    Charles Paul Buchanio, for appellant; Robert W. Feeman, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.


text:
    455 A.2d 205
    Commonwealth v. Walker, Appellant.
    Argued November 16, 1982.
    Elmer John McKechnie, Jr., for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 205
    Commonwealth v. Wideman, Appellant.
    Submitted April 22, 1982.
    Norris E. Gelman, for appellant; Nancy Dena Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    455 A.2d 206
    Commonwealth v. Wright, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1983.

      Submitted November 5, 1981.
    Rosemarie T. Kenkelen, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    455 A.2d 206
    Duffy, Appellant v. Kratz, Jr.
    Argued May 20, 1982.
    Steven R. Wolf, for appellant; Patrick J. Loughney, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    455 A.2d 206
    Estate of Lewis A. Will. Appeal of Herbert C. Will, James E. Will, Martha Carlson and Other Natural Heirs of Lewis A. Will.
    Petition for Allowance of Appeal Denied April 8, 1983.

      Argued May 20, 1982.
    John W. Pollins, III, for appellant; George M. Lynch, for appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Order affirmed.


text:
    455 A.2d 207
    Moser etc., Appellant v. Borough of Conshohocken.
    Argued November 6, 1981.
    Joseph L. Romano, for appellant; Hugh M. Emory, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    455 A.2d 207
    Old-Towne Ind. Inc., Appellant v. Ashland Chemical etc.
    Argued September 8, 1982.
    David Lake Shenkle, for appellant; Frederick E. Smith, for appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Order affirmed.


text:
    455 A.2d 207
    Riley et al., Appellants v. D’Ambrosio.
    Argued November 17, 1981.
    Jeffrey S. Kahn, for appellant; Bernard V. DiGiacomo, for appellee.
    Before CERCONE, P.J., McEWEN and BECK, JJ.
   The order of the learned Montgomery County Common Pleas Court Judge Lawrence A. Brown is affirmed.


text:
    455 A.2d 207
    Rocco Scarabino et al. v. Three Rivers Construction. Appeal of Three Rivers Construction Company, a corporation.
    Petition for Allowance of Appeal Denied Oct. 11, 1983.
    Argued October 14, 1981.
    Fred W. Dunton, for appellant; Joseph E. Fricker, for appellees.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   Order affirmed.


text:
    457 A.2d 131
    Schmader, et al., Appellants v. Henry, et al.
    Reargument Denied March 30, 1983.
    Petition for Allowance of Appeal Denied Sept. 9, 1983.
    Argued June 17, 1982.
    John E. Quinn, for appellant; Richard W. Kooman, II, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    455 A.2d 208
    Virgili, Appellant v. Barger.
    Argued November 9, 1982.
    Louis M. Tarasí, Jr., for appellant; John C. Conti, for appellee.
    Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    January 28, 1983.
    455 A.2d 208
    Commonwealth v. Andujar, Appellant.
    Submitted November 16, 1982.
    John A. Goldstan, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The judgment of sentence of the learned Berks County Common Pleas Court Judge Arthur E. Saylor is affirmed.


text:
    455 A.2d 208
    Commonwealth v. Cowgill, Appellant.
    Petition for Allowance of Appeal Denied May 18, 1983.
    Submitted May 25, 1982.
    Linda Connell Dicicco, Assistant Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 209
    Commonwealth v. Gambill, Appellant.
    Petition for Allowance of Appeal Denied June 1, 1983.
    Argued May 20, 1982.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant; Paul J. Susko, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   The orders of June 23, 1981 and July 8, 1981 are affirmed.


text:
    455 A.2d 209
    Commonwealth v. Jones, Appellant.
    Submitted June 3, 1981.
    William F. Ochs, Jr., Public Defender, for appellant; Charles M. Guthrie, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, ROWLEY and MONTEMURO, JJ.
   The judgment of sentence of the learned Berks County Common Pleas President Judge Grant E. Wesner is affirmed.


text:
    458 A.2d 257
    Commonwealth v. McCarty, Appellant.
    Reargument Denied April 12, 1983.
    Petition for Allowance of Appeal Denied Oct. 6, 1983.
    Submitted April 27, 1982.
    Joseph E. Breman, for appellant; Frederick L. John, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, CIRILLO and BECK, JJ.
   Judgment of sentence affirmed.

BECK, J., filed a memorandum dissenting statement.


text:
    455 A.2d 209
    Commonwealth v. Offutt, Appellant.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.
    Submitted May 19, 1982.
    Thomas P. Ruane, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, CIRILLO and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 209
    Commonwealth v. Palmer, Appellant.
    Petition for Allowance of Appeal Denied May 18, 1983.
    Argued December 9, 1981.
    Daniel M. Preminger, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Judgment of sentence affirmed.

SPAETH, J., filed a memorandum dissenting opinion.


text:
    455 A.2d 210
    Commonwealth v. Swiggett, Appellant.
    Argued May 12, 1982.
    Randolph W. Vontill, Jr., for appellant; Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    455 A.2d 210
    Commonwealth v. Walker, Appellant.
    Submitted November 16, 1982.
    Martin L. Trichon, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Richard B. Klein is affirmed.


text:
    455 A.2d 210
    Commonwealth v. Walls, Appellant.
    Submitted April 13, 1982.
    Ira C. Houck, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., concurred in the result.


text:
    455 A.2d 211
    Dunn, Appellant v. Nationwide.
    Argued November 15, 1982.
    Melvin Rubin, for appellant; James C. Haggerty, for appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The order is affirmed on the basis of the opinion of the learned Philadelphia County Common Pleas Court Judge John J. McDevitt, III.


text:
    455 A.2d 211
    Flick v. Gray et al. Rothenberger v. Gray et al. Appeal of James W. Gray and Richard Gray (at Nos. 211 and 212).
    Argued September 16, 1981.
    Joseph A. Fitzpatrick, Jr., for appellants; Armin Feldman, for Flick, appellee; David F. Snyder, Assistant Attorney General, for Commonwealth, appellee; Anthony M. Muir, for Lower Macungie Twnshp., appellee; William E. Doyle, for Nonnemaker, appellee; and Wallace C. Worth, Jr., for Rothenberger, appellee.

      Before CAVANAUGH, DiSALLE and WATKINS, JJ.
   Orders affirmed.

DiSALLE, J., did not participate in the consideration or decision of this case.


text:
    455 A.2d 211
    Hersh et al., Appellants v. Davis et al.
    Argued November 15, 1982.
    Samuel Merovitz, for appellants; James 0. Crawford, for appellees.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The judgment is affirmed on the basis of the opinion of the learned Philadelphia County Common Pleas Court Judge Ned L. Hirsh.


text:
    455 A.2d 212
    Hoellen, Appellant v. Hoellen.
    Argued May 4, 1981.
    Sandor Engel, for appellant; Robert E. Donatelli, for appellee.

      Before CERCONE, P.J., SPAETH and CAVANAUGH, JJ.
   The order of the lower court is affirmed.


text:
    455 A.2d 212
    Kates et al., Appellants v. Commerce & Industry Insurance.
    Argued May 25, 1982.
    Christine J. Barbieri, for appellants; Thomas Pogue Preston, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    457 A.2d 579
    Meade et al., Appellants v. Bk. & Tr. Co. of Old York Road.
    Reargument Denied April 12, 1983.
    Petition for Allowance of Appeal Denied June 8 & July 25, 1983.
    Argued December 14, 1981.
    Charles J. King, Jr., for appellants; Philip D. Weiss, for Bk. & Tr. Co., appellee; and Mark E. Taylor, for Capitol Corp., appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of the learned Montgomery County Common Pleas Court Judge Joseph H. Stanziani is affirmed.


text:
    455 A.2d 212
    Wallace, Jr., Appellant v. University of Pittsburgh.
    Argued April 14, 1982.
    David B. Washington, for appellant; Robert Joseph Marino, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The judgment entered March 29, 1982 is affirmed.


author: Orlady, J.,

text:
    Yanko v. Standard Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Double insurance — Partnership.
    Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest.
    Where a partnership consisting of two persons insures its property in one company, and one of the partners insures his individual interest in three other companies, the insurance is not double insurance. The subject, the interest and the risk are not the same.
    Argued Nov. 14, 1905.
    Appeal, No. 28, .by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1908, No. 28, on verdict for the plaintiff in case of Israel Yanko and'Abram Lewitas, trading as Yanko & Lewitas, v. Standard Fire Insurance Company of Trenton, N. J.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ,
    Affirmed.
    Assumpsit cn a policy of fire insurance. Before Hassler, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff on facts found by the jurjr in the nature of a special verdict. ■

      W. U. Hensel, for appellant.
    — We contend that partnership property can only be insured as such, whether by the individual members of the firm, or by the firm, as an entirety; and that all the insurance on it must be pro rata: Peoria Marine, etc., Ins. Co. v. Hall, 12 Mich. 202.
    Double insurance is, or ought to be wherever there are two separate insurers, liable for the same loss. The fact that one policy covers more property or wider risks than the other does not prevent the insurance being double on subjects covered by both: Meigs v. Ins. Co., 205 Pa. 378; Sloat v. Royal Ins. Co., 49 Pa. 14; Mussey v. Ins. Co., 14 N. Y. 79; Continental Ins. Co. v. Hulman, 92 Ill. 145 ; Ins. Co. v. Drake, 2 B. Mon. (Ky.) 47; Home Ins. Co. v. Warehouse Co., 93 U. S. 527; Robbins v. Ins. Co., 16 Blatch. 122.

      John JE. Malone, with him H. B. Lutz, for appellee.
    — If one partner or part owner of property held in common insure in his own name only, the policy will cover his individual interest and no more: Peoria Marine, etc., Insurance Co. v. Hall, 12 Mich. 202; Finney v. Insurance Co., 49 Mass. 348; Pearson v. Lord, 6 Mass. 81.
    March 12, 1906:
   Opinion by

Orlady, J.,

The plaintiffs were partners, Yanko having a two-thirds, and Lewi tas a one-third interest in the stock of merchandise and fixtures, and, as partners, they insured the partnership property in the defendant companjr. Yanko insured his interest in the same property in three other companies. While all the policies were in force the property was partially damaged by fire. An appraisment was entered into by the parties and the undisputed facts are, that the total cash value of the stock and fixtures was $4,090.53, the total loss and damage was $2,037.72. The partnership policy was for $1,500. The individual insurance on Yanko’s two-thirds interest was as follows: Home Insurance Company, $1,250 ;• Teutonia Insurance Company $1,250 ; Fireman’s Insurance Company $1,500 ; total, $4,000., Yanko brought suit against the three named companies in which his individual interest was insured, and recovered against the Home Insurance Co., $229.10, the Teutonia Ins. Co., $229.10 and the Fireman’s Ins. Co., $274.92, aggregating $733,12. In each of these three suits the only “ other insurance ” with which these policies prorated, under their terms, was the other two policies insuring his individual interest.

In the $1,500 policy in this suit there is an eighty per cent clause which, the plaintiff concedes, limits his right to recover but $939.31, for which amount the court below entered judgment on the verdict in favor of the plaintiff, in the opinion filed by the trial judge it was held, that no account is to be taken of the insurance of Yanko’s individual two-thirds interest in the property, and that the defendant company was not entitled to have the policy in suit prorate the loss with the three other companies. This conclusion was reached in adhering to the decisions in Meigs v. Insurance Co., 205 Pa. 378, in which it is held that, “ Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest.” In the present action the policy covers, not the individual interest of Yanko, but the interest of the partnership of Yanko and Lewitas. The subject, the risk and the interest are, therefore, not the same. The other policies cover an interest which this one does not. The recovery in the three actions brought on Yanko’s individual policies ($733.12) added to the amount of the judgment in this case ($939.31), is $361.79 inside the amount agreed upon ($2,037.72) as the total loss and damage fixed by the appraisement. As stated by Chief Justice Mitchell in his dissenting opinion in the Meigs case, “it must be admitted frankly that there is some difficulty in the language of the authorities in this state.” We are concluded by the decision of the court in that case, and in following it, we affirm the judgment.


author: Morrison, J.,

text:
    Stukey v. Rissinger, Appellant.

      Evidence — Receipts—Wages—Extra work.

    In an action for wages where the plaintiff claims to recover for extra work, and he is met by several receipts in full which did not cover any extra work, and by defendant’s testimony in denial of any agreement to pay for extra work, it is reversible error for the court to neglect to charge the jury as to the serious effect of such evidence on the plaintiff’s claim.
    Argued Jan. 1906.
    Appeal, No. 27, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Go., Oct. T., 1908, No. 1,217, on verdict for plaintiff in case of Melville Stukey v. William Rissinger and Harry Rissinger, trading as Rissinger Bros. & Co.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for wages. Before Lynch, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    Questions of law have been presented to the court. The main one is that the statements and receipts signed twice a month by plaintiff, bind and is conclusive against him.
    ' For this reason the court cannot so instruct you. If the testimony of the plaintiff be true, Blackwell hired him and Blackwell told him his wages would be increased and he would get any increase allowed by the anthracite commission, if so his wages and his commission were not fixed until the report of the commission was filed. Because, I presume, it was unknown to the operators and the workmen what the increase or decrease would be. The report was made to the president on March 18.
    Verdict and judgment for plaintiff for $239.83. Defendants appealed.

      Errors assigned were (3) the instructions o.f the court, and (4) that the charge was inadequate.

      R. B. Sheridan, with him John T. Lenahan, for appellants.—
    The charge of the court was an inadequate and misleading presentation of the case to the jury : Webb v. Lees, 149 Pa. 13; Reber v. Schitler, 141 Pa. 640.

      James L. Lenahan, with him Cecil B. Banks, for appellee,
    cited: Hibbs v. Woodward, 15 W. N. C. 338 ; Krauser v. McCurdy, 174 Pa. 174.

      April 23, 1906
   Opinion by

Morrison, J.,

This action was brought before a justice of the peace, and came into the common pleas by defendants’ appeal. It was tried in the common pleas on a plea of non assumpsit, etc., to the transcript which stood as the plaintiff’s declaration. Verdict and judgment having gone against the defendants for $239.83, they appealed to this court.

The claim as stated in the transcript is “ wages for manual labor done by plaintiff for defendants during the months of November and December, 1902, and January, February and March, 1903, as fireman at their, the said defendants’, coal washery at Plymouth, Luzerne county, Pa. Demand, $207.12.”

The plaintiff testified in substance that he was employed to work for the defendants at $2.25 per day of eight hours ; that he worked during the month of October and was paid therefor ; that he also worked in November, December, January, February and March following ; that on November 1, 1902, a new contract was made whereby the plaintiff was to receive $2.25 for each day of eight hours, and if he worked over eight hours per day he was to receive pay for the extra work, and, in addition, to receive such increase or rise in wages as might thereafter be awarded by the mine commission, and that for the extra time and the increase allowed, by said commission he was not to be paid until after the said commission should report. " This claim of the plaintiff as to the extra hours and the increase by the mine commission was strongly disputed by the defendants. The plaintiff testified that this contract was made with one Arthur Blackwell, who appears to have been a foreman, or boss of carpenters, employed by defendants. The fact that Blackwell made such a bargain with the plaintiff and his authority to make it were disputed and absolutely denied by the defendants, and Blackwell’s testimony was not produced. One of the Rissingers testified positively that he employed the plaintiff, and gave him notice that he would be expected to ■ work twelve hour shifts without any increase of wages. It does not appear clearly from the evidence just how and when the plaintiff was paid for the work done in November and December, but we do not understand that he claimed anything for November and December except pay for extra hours and the ten per cent increase allowed by the mine commission. For the months of January, February and March there were written receipts and statements put in evidence by the defendants and the genuineness of the same was not disputed by the plaintiff. The first one of these receipts is as follows : “No. 8. Rissinger Brothers & Co. Detach this and present on pay day properly signed. Old Plymouth collery. Melvin Stukey. Received of Rissinger Brothers & Co. $24.75 in full of all demands to January 16,1908, as per statement rendered. Melvin Stukey. No. 3. January, first half, 1903. Hours 110 at 22-J, $24.75.” The next three receipts and statements are in the same form, except that the words “ as per statement rendered ” do not appear in them, and the number of hours’ work differs. But each receipt and statement specifies the number of hours and the rate as twenty-two and a half cents per hour. The total number of hours stated in the four receipts is 550. This computed at eight hours per day is sixty-eight and three-fourths days, which computed at $2.25 per day amounts to $154.78. The two March receipts differ from the others, as they are each for a certain number of days at $2.25 per day and are in full of all demands. The one for the first half of March is fifteen days at $2.25, $33.75, and the one for the last half of March is for $36.00, in full of all demands to April 1, 1903, being for sixteen days at $2.25. This would make the plaintiff’s claim of compensation at $2.25 per day of eight hours, $224.53, but, in fact, the amount actually computed and paid to him, as shown by the receipts, is $193.50. It should be noted that the first four receipts are inconsistent with the plaintiff’s testimony in that they clearly show he was working at twenty-two and a half cents per hour. This does not agree with his testimony that he was to receive $2.25 for each eight-hour day. The evidence also shows that the last receipt was executed and delivered nearly two weeks after the mine commission had reported, on March 18, 1903. The plaintiff’s last receipt was in full for all demands to April 1, 1903.

There being no allegation that the receipts were procured by fraud, accident or mistake, or by any improper inducement, the counsel for the defendants contended that they were conclusive and presented to the court the following points: “ 1. It appearing from the receipts offered in evidence that a settlement in full of each two weeks’ work was given by plaintiff to defendants, and it further appearing that such receipts were not procured by fraud, accident or mistake, plaintiff cannot claim for additional time referred to by the periods mentioned in the receipts. 2. In no event can the plaintiff receive any sum- in excess of the ten per cent on his earnings as fixed by his receipt and statement offered in evidence. 8. That under all the evidence in the case the verdict must be for the defendants.”

The first and second assignments of error are based on the refusal of the defendants’ second and third points. The third assignment is based on the portion of the charge quoted therein. The fourth assignment is: “ The charge of the court was an inadequate and misleading presentation of the case and' was calculated to withdraw the minds of the jurors from the real and important issues in the case.”

The plaintiff’s testimony that his contract was for $2.25 per day of eight hours is wholly inconsistent with the first four receipts in evidence, and they are admitted to be genuine. And each of these receipts contains the words “ in full of all demands.” The last two receipts are equally inconsistent with the plaintiff’s testimony, because they show that he received $2.25 per day for thirty-one days in March in full of all demands. It seems to us that these receipts, in connection with the positive testimony of the defendants that the plaintiff was to receive no pay for extra hours, strongly negatives his testimony as to the contract. To say the least, the receipts were very important evidence against the plaintiff, and in our opinion the learned court failed to adequately instruct the jury as to their effect. We think the receipts and the testimony on the part of the defendants tended strongly to establish the fact that the plaintiff was not entitled to charge for extra hours’ work and that the jury ought to have been, so instructed : Daly, Appellant, v. Dallmeyer, 20 Pa. Superior Ct. 366; Crawford v. Forest Oil Co., 189 Pa. 415. In the latter case the Supreme Court said: “ The plaintiff’s receipt was in full for the professional services for which he now claims additional compensation. The oral testimony of the plaintiff being absolutely opposed by the testimony of Mr. Cummings, is insufficient to warrant the jury in disregarding the receipts. There was no evidence of services rendered after the receipts were given, and, hence, the plaintiff’s claim was limited to those which were rendered before the receipts. The learned court below was entirely right in directing a verdict for the defendant.” In the present case, however, there is some evidence of services not certainly covered by the receipts. But the receipts appear to cover all of the plaintiff’s time and the evidence of other demands is not strong. The plaintiff’s testimony is in direct conflict with' that of the defendants as well as with the written receipts. They show, strongly, that he worked by the hour in January and February and received his pay by the hour and not at $2.25 per day of eight hours.

The learned counsel for the plaintiff cites : Hibbs v. Woodward, 15 W. N. C. 388, and Krauser v. McCurdy, 174 Pa. 174, but these cases rest on exceptional facts and we do not think they rule the present case. The facts are not similiar.

The learned counsel for the defendants, in support of his fourth assignment, also cites Webb v. Lees et al., 149 Pa. 13; Reber v. Schitler, 141 Pa. 640 and Peirson v. Duncan et al., 162 Pa. 187.

An examination of these cases forces us .to the conclusion that the charge of the court was inadequate and that the third and fourth assignments must be sustained. If it were not for the claim of ten per cent, based upon the report of the mine commission, and the possibility that there may be wages due the plaintiff for November and December, 1902, and for extra hours’ work, we would reverse this case without a venire, but, inasmuch as the receipts do not conclusively show that those items were paid,- we are of the opinion that they raise questions for a jury. But on these questions, the receipts, and especially the last one, bear strongly against the plaintiff’s theory. The last receipt was given about two weeks after the report of the commission and it is in full of all demands to April 1, 1903.

The third and fourth assignments are sustained and the judgment is reversed with a venire facias de novo.


author: Rice, P. J.,

text:
    Commonwealth v. Campbell, Appellant.

      Criminal law — Assault and battery — Evidence—Indictment—Charge.
    An indictment for assault and battery charged that the prisoner inflicted upon the prosecutrix grevious bodily harm by striking her on the head with a chair. At the trial the prosecutrix testified that among other injuries, the prisoner knocked her down with a chair, thereby causing a lump on her head, which got sore, and was not healed at the time of the trial. Held, that it was competent for a physician to testify that the wound might have been caused by a blunt instrument, and that from an examination made within four or five months of the trial he was of the opinion that the injuries might have been inflicted a year before the trial at the time averred in the indictment for the assault.

      Rule of court — Witness—Evidence.
    The court may adopt and apply in a proper case a rule of court to the effect that “the re-examination of a witness shall be only in respect to explanation of any new matter elicited on the cross-examination unless with leave of the court where the matter had been overlooked in chief.”

      Appeals — Assignments of error — Waiver of error.

    An assignment of error which embraces more than one point or refers to more than one bill of exceptions violates rule XIV.

      Criminal law — Reasonable doubt — Charge.
    A pi-isoner in a criminal trial has no ground to complain of a charge as follows: “the presumption is that the defendant is innocent, and the presumption continues up until the moment that you are satisfied by the evidence beyond a reasonable doubt of his guilt. This reasonable doubt is such a doubt that fully arises from the evidence. It should not be a mere whim or surmise. There should be such a doubt as there is a reason for and which fully arises out of the evidence. . . . We would say further that the doubt arises from all of the evidence, and if the doubt arises from a single juryman the other eleven jurymen should come to the mind of that one. It of course takes twelve jurymen to arrive at the verdict.”
    Argued March 6, 1906.
    Appeal, No. 113, April T., 1906, by defendant, from judgment of Q. S. Clarion Co., May T., 1905, No. 17, on verdict of guilty in case of Commonwealth v. Andrew Campbell.
    Before Rice, P.J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for assault and battery. Before Wilson, P. J.
    At the trial Dr. J. M. Fitzgerald was called on behalf of commonwealth and sworn.

      Direct examination by Mr. F. J. Maffett. “ Q. You are a practicing physician located at Clarion ? A. Yes, sir. Q. How long have you practiced ? A. About thirty-five years. Q. Are you acquainted with the prosecutrix, Mrs. Campbell? A. I am, slightly. Q. Have you seen her as her doctor ? A. Yes, she has called in to see me three or four times. Q. Did you make any examination of her ? ”
    Defendant’s counsel request counsel for commonwealth to state what they propose to prove by this witness.
    Mr. F. J. Maffett: We propose to prove by this witness that he has examined Mrs. Campbell’s head and the condition in which he now finds it, or at the time he made the examination.
    Objected to as incompetent, irrelevant and immaterial.
    The Court: Objection overruled; exception to defendant and a bill sealed.
    “ Q. State whether or not you examined Mrs. Campbell’s head? A. I did, and examined her head. I found two or three lumps on the back of her head that I thought was caused by some blunt instrument, that at the time was pretty tender and pretty sore. Q. From your experience as a physician, could those lumps have been made as long as eighteen months ago or a year ago ? A. They might have been made quite awhile before. I couldn’t state the length of time. Q. What would you say as to whether they might have been made as long as October of last year ? A. They might have been caused at that time.”
    Cross-examination by Mr. George F. Whitmer: “ Q. And they might not have been ? A. There’s nothing positive about that. It might have been more -recent than that. Q. And quite considerably more recent? A. Yes, sir. Q. When did you first see her ? A. I suppose three or four months ago. Q. Have you any way of fixing the date ? A. Nothing positive, it’s been within the last five months. Q. Since the last term of court here? A. No, it was before that. Q. How long before ? A. I examined her head awhile before that, don’t know just how long, can’t state. Q. Have you examined her head several times since ? A. Probably three or four times. Q. You are a pretty busy man? A. Sometimes we are very busy. Q. Sometimes not so busy? A. No. Q. That might have been caused by falling downstairs ? A. It might have been caused by anything, or being struck by something, as any blunt instrument.”
    Defendant’s counsel requests that this testimony be stricken out, and objects to it as incompetent, irrelevant and immaterial.
    The Court: Objection overruled, the request is refused; exception to defendant, and a bill sealed. [1]
    Peter McCall was asked this question: “ Q. You never measured it? A. No. It’s nearer fifteen rods each side of the run.”
    The Court: The witness is excused.
    Mr. Whitmer: I propose to ask this witness if a man could see another man strike a woman with a board at that distance.
    The Court: The counsel for the defendant had completed his examination of the witness, and we think it is sufficient.
    Mr. Whitmer: We had not completed our examination of this witness when counsel for other side interrupted and asked questions, without an opportunity on our part to interrupt,' and we ask now if it was possible for a boy to see across from Space’s house to the Campbell house and see one person striking another one with a board six to eight inches wide, and five or six feet long.
    Counsel for commonwealth object to this as irrelevant.
    The Court: The examination of this witness.was completed and turned over to the commonwealth for cross-examination. Therefore, the witness is excused. Exception to defendant, and a bill sealed. [8]
    Annie Campbell was asked this question: “ Q. She testified here that she never gave your father a cross word, how is that ? ”
    Counsel for the commonwealth object to the question as irrelevant and immaterial.
    The Court: Objection sustained, exception to defendant, and a bill sealed.
    “ Q. This woman testified that she never gave your father a cross word or threatened him, how was that ? ”
    Counsel for commonwealth object to the question as irrelevant and immaterial.
    The Court: Objection sustained; exception to defendant, and a bill sealed.
    “ Q. Did you ever hear her threaten your father ? ”

      Objected to as irrelevant and immaterial, by counsel for commonwealth.
    The Court: Objection sustained, exception to defendant, and a bill sealed.
    Mr. Whitmer: We propose to aslc this witness if this woman had threatened to kill her father in her presence.
    Counsel for commonwealth object to this as immaterial.
    The Court: Does that justify an assault ?
    Mr. Whitmer: It does not justify an assault, and it may not be material bearing directly on the assault, but it does bear on the probabilities of her story.
    The Court: Objection sustained; exception to defendant, and a bill sealed. [4]
    The court charged in part as follows :
    The commonwealth, in support of the indictment, called the prosecutrix, Mrs. Campbell, her little daughter by her former husband, Mr. Smith, and also called several of her neighbors there, the two Space boys, James Space and Benton Space. Also, you will remember their testimony in reference to what the commonwealth alleges to be in corroboration of the testimony of the prosecutrix at the time that she testified that the assault and battery was committed upon her by her husband by the striking of the board. Each of these boys, you will recollect, testified in substance that they saw her husband hit her at one time with the board. Also, the commonwealth introduced the evidence of Miss Slaugenhaupt, Mrs. J. E. Bowser and Mrs. Thomas Space. You will recollect their testimony as to the prosecutrix going to their house nearby at different times after the alleged assaults and batteries were committed upon her, and about the marks upon her person that she showed these witnesses, and her account on'the stand here of how those marks were inflicted upon her as bruises occasioned by, as what she claims to be, the unlawful beating and assault and battery committed upon her by the defendant. Also, the testimony of Squire Stewart fixing the time of when the information was made before him in October, 1904, of assault and battery, and at the time the complaint was made there was no hearing and that the case was withdrawn or settled. Also, the testimony of O. R. Morgan, who was called in rebuttal after the defendant, you will recollect, testified that his wife was drunk coming-home from Sligo, and his two daughters testified in substance that she was drunk when she came home. You will recollect the testimony of Mr. Morgan in rebuttal, that he talked with the prosecutrix here at that time ; what he heard her say in reference to her husband beating her at that time, and thather appearance didn’t indicate to him that she was intoxicated. That was for the purpose of contradiction of the witnesses on behalf of the defendant. [Also, the testimony of Dr. Fitzgerald as to her physical condition and as to the seriousness of the wounds which were inflicted upon her, what he found at the time he examined her some time after the wounds were received; tending to show that the injury committed upon her was a serious one.] [2]
    The defendant, you will recollect, took the stand and denied specifically each one of the charges, the alleged assault and battery and the shooting. You will recollect that the prosecutrix testified that she had been shot at three times in the buggy, through the dress, coming home from Sligo, and then at two other times in the house he shot at -her. The defendant denies all of these charges. He denies specifically in response to the questions by his counsel, each one of these acts that was testified to by the prosecutrix, and his version of it is that instead of making these, attacks upon his wife, that when they came home from Parker and from Sligo, and also, I believe, when coming home from Monterey, that she was drunk and so drunk that she didn’t know what was going on, and that there was nothing of this kind occurred and that it was all- made up. You will recollect the testimony of his tw;o daughters, Miss Annie Campbell and Miss Blanche Campbell, who were living in the house and then with the family, being daughters by his first wife, in which they corroborate their father, and at the time they were there they state that none of these occurrences happened ; that their father did not strike the prosecutrix here, or did not pull her by the hair; and, in fact, as they claim, that they saw nothing improper or out of the way there, or that none of the crimes alleged in this indictment were committed within their presence or within their knowledge. Also, the testimony of Mr. Campbell’s brother Joseph, in which he states that when she first came there to their home, that he noticed a lump, I think he said it was on the knuckle of one of the hands ; from which they desire you to infer that the injury she.complained of was made to her hand, or thumb, or to her little finger, that she alleges was done by her husband, the defendant, after she was there, was on the knuckle when she first came, and, therefore, that he could not have done it. Also, the testimony, I believe, of Joseph Campbell in reference to the distance and location ; from which they desire you to infer that these Space boys could not have seen the striking of this woman. You will recollect the distance he spoke of between' the house, and the cross-examination by Mr. Maffett, that thé distance was about twenty feet. Also, the testimony, I think, of Peter McCall as to certain statements.
    So that from these witnesses and from the fixing of dates by them, you are to arrive at your verdict. I don’t know that there is much the court can say that would help you, except to say that in considering the credibility of the witnesses and which ones you will believe, you should consider their interest in the result of the case, you should consider their relationship to the respective parties, you should consider their manner of testifying, their candor or their want of candor, and also whether they are corroborated or contradicted by other witnesses.
    The defendant, of course, in this case as in any other criminal case, has a right to testify in his own behalf, but still you are the judges of what weight ought to be attached to his testimony, and in considering what weight should be given to it you should take into consideration all the facts and circumstances surrounding the case as disclosed by the evidence, and give his testimony such weight as you believe it to be entitled to in view of all these facts and circumstances. The burden is on the commonwealth to prove every material allegation in this indictment to your satisfaction beyond a reasonable doubt. The presumption is that the defendant is innocent, and this presumption continues up until the moment that you are satisfied by the evidence beyond a reasonable doubt of his guilt. This reasonable doubt is such a doubt that fully arises from the evidence. It should not be a mere whim or surmise. There should be such a doubt as there is a reason for and which fully arises out of the evidence. It is the duty of the commonwealth to call all of the witnesses of an alleged crime. In this case, the defendant alleges that the commonwealth did not, but I believe that they claim they did procure two witnesses, the two Miss Campbells, on behalf of the defendant. This would make against the commonwealth and should be considered in connection with all of the other elements in the case. The fact that this prosecutrix made a complaint or an information in October, 1904, before Squire Stewart, and the complaint was afterwards withdrawn, or the case settled, and the defendant here paid the costs, under all the evidence in this case and under the plea, would be no bar to a verdict in this case.
    [We would say further that the doubt arises from all of the evidence, and if that doubt arises from a single juryman the other eleven jurymen should come to the mind of that one. It, of course, takes twelve jurymen to arrive at the verdict.] [5]
    Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (1, 8, 4) rulings on evidence, quoting the bill of exceptions ; (2, 5) above instructions, quoting them.

      Greorge E. Whitmer, for appellant.

      E. J. Maffett, with him IF. J. Greary, district attorney, J. T. Reinsel, ex-district attorney, and EL. M. Rimer, for appellee.
    April 23, 1906 :
   Opinion by

Rice, P. J.,

The defendant was sentenced upon the third count of the indictment, which charged that he maliciously inflicted upon the prosecutrix grievous bodily harm by striking her on the head with a chair, by choking her, by throwing her down violently and otherwise beating, bruising and abusing her. Upon the trial of the case, which took place in November, 1905, she testified in support of this charge that on Christmas, 1904, amongst other injuries, he knocked her down with a chair, thereby causing a lump on her head, which, to adopt her language, swelled up and got sore all the time after that,” and that, although it sometimes got better, the wound was not entirely healed at the time of the trial. In view of this testimony and of the natúre of the charge upon which the defendant was being tried, it was perfectly competent, not only to introduce the testimony of the physician as to what he found to be the condition of her head when he examined her within four or five months before the time of the trial, but also to elicit from him as a medical expert the opinion that the injuries were caused by a blunt instrument, and that they might have been inflicted as long before as December, 1904. This we think needs no discussion. Nor was there any error in calling the jury’s attention to this testimony when the judge was summarizing the testimony of the witnesses on the one side and the other in his charge. He had carefully and fully instructed them that the credibility of the witnesses and the weight to be attached to their testimony were exclusively questions for their determination, and what .was said regarding the testimony of this particular witness could not have been understood by them as qualifying in any manner these general instructions. His testimony, if believed, tended to corroborate the prosecutrix as to the seriousness of the injuries, and we cannot see that, the excerpt from the charge, quoted in the second assignment, ascribed1 to it any other significance.

In considering the third assignment of error it is important to notice that one of the standing rules of the court below provides, inter alia, that “ the re-examination of a witness shall be only in respect to explanation of any new 'matter elicited on his cross-examination unless with leave of the court where the matter had been overlooked in chief.” There can be no question as to the power of the court to adopt such a rule. When administered with proper discretion the rule tends to secure orderly procedure in the examination and cross-examination of witnesses, and does not prevent the re-examination .of a witness under circumstaiices where the justice of the case requires it. Upon consideration of the course pursued in the examination, cross-examination and re-examination of this witness, as shown by the record, we are not convinced that the court erred in enforcing the rule. • Moreover, the testimony sought to be introduced by the question quoted in the assignment of error was in reality but the opinion of the witness as to a matter not calling for expert or opinion evidence. It was not alleged that this opinion which it was proposed to have the witness give was based upon an actual experiment made by him. Nor were any special circumstances shown from which, it could be inferred that this witness was better qualified than the jury to' form an opinion as to the ability of a person, at the distance described, to see an assault to which a witness for the commonwealth had testified. Therefore, the court committed no error in excluding the question.

The fourth assignment of error is in plain violation of our rule which provides, that if any assignment embrace more than one point or refer to more than one bill of exceptions, it shall be considered a waiver of all the errors so alleged: Rule XIV. But aside from that objection, the assignment is without merit, because it does not appear from any of the several questions therein quoted that they related to threats, declarations or conduct of the prosecutrix which were connected with the assaults to which she had testified.

That part of the charge relative to reasonable doubt, quoted in the fifth assignment, is to be read in connection with what immediately preceded it relative to the same subject. Thus considered, the defendant has no just ground for complaint. Indeed, to charge that if one juror has a reasonable doubt, “ the other eleven jurymen should come to the mind of that one,” was stating the law more favorably to the defendant than he had a right to ask, and much more favorably to him than if the court had affirmed, without qualification or correction, his request for instructions as set forth in the stenographer’s report of the trial.

The defendant had a fair trial according to the forms of law, and was convicted upon competent evidence which fully justified the verdict of the jury.

All the assignments are overruled, the judgment is affirmed and the record is remitted to the court below with directions that the sentence be fully carried into effect, and that the defendant undergo the full term of imprisonment which had not expired when this appeal was made a supersedeas.


author: Beaver, J.,

text:
    Mountville Borough.

      Boroughs — Incorporation—Freeholders—Estates in remainder — Act of April 1, 1834, P. L. 163.
    A person who owns a vested remainder in real estate located within the limits of a proposed borough, subject to a life estate, owned and enjoyed by some other person, is not a freeholder within the meaning of the second section of the Act of April 1, 1834, P. L. 163.
    There is nothing in the Act of April 1, 1834, P. L. 163, which requires the application to set forth the number of freeholders residing within the proposed territory, nor is there any provision that it is to be verified by affidavit.
    Argued Nov. 14, 1905.
    Appeal, No. 87, Oct. T., 1905, by-John Pennypacker et al., from order of Q. S. Lancaster Co., April T., 1904, No. 506, incorporating a borough In re Incorporation of Mountville Borough.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Petition for the incorporation of a borough. Before Hassler, J.
    The opinion of the Superior Court states the case.

      Errors assigned were in the following form:
    1. The court erred in refusing to exclude the names of- William Schuster, Frank Smith, H. B. Immel, John E. Dirk, T. S. Shookers and C. H. Rohrer from the number of signers of the petition for incorporation — the persons named having withdrawn their names before the jurisdiction of court attached.
    2. The court erred in holding that Henry Sehlott, Mrs. Israel Garber, Grant Witmer, Jacob Witmer, Laura Witmer, John G. Mann, Charles Schoff, Mrs. Christian Lehman, Mrs. Adam Fisher and Jacob Newcomer, tenants of vested remainders, in lands in the proposed borough, are not freeholders, and, therefore, not to be counted in ascertaining the total number of freeholders in the limits of said proposed borough!
    8. The court erred in not sustaining the fourth exception, filed on behalf of John Pennypacker et al., which exception is as follows: “ The said petition is defective in that it does not show how many freeholders reside within the limits of the proposed borough, and there is no affidavit or other evidence attached to or accompanying said petition to prove that the persons whose names are appended constitute a majority of such freeholders, nor is there any affidavit of the truth of any other matter alleged in said petition.”
    4. The court erred in entering the following decree: “ And now, March 18, 1905, this cause having come on for argument at the December Term, and having been fully argued by counsel for the petition and by counsel for exceptants, and having been fully considered by the court and all exceptions having been overruled and dismissed January 14, 1905, it is ordered and directed and decreed that the prayer of the petitioners for incorporation be granted, subject to certain changes and modifications in the boundaries proposed, and that the borough of Mountville, in the county of Lancaster, be and hereby is incorporated and decreed and declared to be duly incorporated a borough, under the laws of Pennsylvania, the boundaries of the said borough being defined and described as follows:
    *******
    That the corporate style and title thereof shall be “ The Borough of Mountville ” and all the inhabitants and residents of the foregoing territory, heretofore comprised within the township of West Hempfield, in the county of Lancaster, are now decreed and declared to be inhabitants and residents of the borough of Mountville, and said borough is decreed and declared to be a separate election and school district.
    That the annual borough election shall be held at the public house of Thomas Rees, in said borough, on the third Tuesday of February in each year, in accordance with and subject to all the provisions of the laws regulating such elections.
    The court further decree and fix the first election in said borough, for election of the officers provided for by law, at said public house of Thomas Rees, in said borough, on April 29, 1905, between the hours of 7 A. m. and 7 p. m., and designate Benjamin F. Hendricks as the person to give due notice of said election and the manner thereof.
    And the court further decree that Israel M. Garber be the judge and Henry McKonley and Howard Shoff the inspectors of said election, and appoint Samuel I. Lingle and Clarence H. Gable borough auditors.
    And it is further decreed that the accompanying draft of the said boundaries and territory of the said borough be recorded as part of this decree.

      D. McMullen, for appellant.
    — And where there is any doubt as to this fundamental question whether a majority of the freeholders residing within the proposed limits have signed the petition, the jurisdiction may not be exercised: Taylorport Borough, 21 W. N. C. 533.
    The question of the right of signers of a petition for incorporation of a borough to withdraw their names, has been before the court a number of times, and it has been decided that where the court has acquired jurisdiction, petitioners will not be allowed to withdraw their names, and thus oust the jurisdiction of the court: Flemington Borough Incorporation, 168 Pa. 628 ; Tullytown Borough, 1 Pa. Dist. Rep. 292; Old Forge Borough, 12 Pa. Superior Ct. 359; Quakertown Borough, 3 Grant, 203.
    No reported case has held that the signer of a petition does not have the right to withdraw his name before the court has acquired jurisdiction.
    In the present case, the request to withdraw the names was made of those circulating the petition and again to the court before the petition for incorporation was presented, and was filed cotemporaneously with the petition for incorporation. It was, therefore, a withdrawal before the jurisdiction had attached.
    The acts of assembly requiring the signatures of a majority of the resident freeholders are silent as to what shall constitute a freeholder, and we take it that they contemplate such persons as come within the common-law definition of freeholder.
    It must appear of record that the petition was signed by a majority of freeholders : Osborne Borough, 101 Pa. 284; McFate’s App., 105 Pa. 323.

      M. S. Musser and W. U. Sensei, for appellees.
    — When a prescribed number of signers are necessary to give the court jurisdiction of a petition, some of. them will not be permitted to oust jurisdiction by withdrawing their names when it is presented : Flemington Borough Incorporation, 168 Pa. 628 ; Old Forge Borough Incorporation, 12 Pa. Superior Ct. 359; Quakertown Borough, 3 Grant, 203 ; Tullytown Borough, 1 Pa. Dist. Rep. 292.
    Seizin is the distinctive feature of a “ freeholder,” and remainders are not freehold estates: Clippinger v. Creps, 2 Watts, 45; Mitchell on Real Estate and Conveyancing in Pennsylvania, 224.
    The petition was duly verified in all legal requirements.'
    March 12, 1906 :
   Opinion by

Beaver, J.,

Who is a freeholder within the meaning of the second section of the Act of April 1, 1834, P. L. 163, which relates to the incorporation of boroughs ? If the answer to this question made by the court below is correct, it practically disposes of the case.

A distinction is made between an estate of freehold in deed and such an estate in law : “ Freehold in deed is the real possession of land or tenements in fee, fee-tail or for life. Freehold in law is the right to such tenements before entry: ” 1 Bouv. L. Dict., Rawle’s edition, 693.

It was absolutely necessary, in order that the court could acquire jurisdiction in accordance with the provisions of law, that the application for the incorporation of the borough should be in writing and signed by a majority of the freeholders residing within the limits of the proposed borough.

The application contained the names of sixty-nine persons who were alleged to be freeholders. Six of these signers recanted and asked to have their names withdrawn from the application before it was laid before the court. Assuming, for the sake of the argument, that they had a right to do so and deducting them from the total number of signérs, there remaimed sixty-three freeholders of the proposed borough asking for its incorporation. The largest number of freeholders alleged to reside within the proposed borough limits was 135'. Eleven of these, as found by the court, had vested remainders in real estate located within the limits of the proposed borough, subject to a life estate, owned and enjoyed by some other person. Deducting the latter from the total number of alleged freeholders left 124, of which sixty-three are a clear majority. If, on the other hand, the remainder-men were freeholders within the contemplation of the act of 1834, supra, they would not constitute a majority, and it would require the addition of the names of those who desired to withdraw from the application to make a majority of the whole number.

In Clippinger v. Creps, 2 Watts, 45, in which one of the questions involved was, whether or not the owner of a freehold estate, encumbered beyond its value, was entitled to stay of execution under the provisions of the 14th section of the act of March 20, 1810, without entering bail, Mr. Justice Rogers says: “ At common law he who has the actual possession of land for life, or a greater estate, is a freeholder.” It is evidently in this sense that the term is used in the act under consideration. He who holds, and not he who will hold, the estate is the freeholder. This must be so; otherwise if the present holder of the estate were opposed to the incorporation of a borough, and the remainder-man who is to hold it in the future were in favor of it, the latter might impose upon the former his proportion of the costs of incorporation and the increased taxes and other expenses growing out of the same, not only without his consent but in spite of his opposition. Surely the legislature did not intend such a result. It is scarcely necessary to discuss this proposition, however, as it appears to be abundantly supported by the authorities cited by .the court below in its opinion dismissing the exceptions to the petition for incorporation. Deducting from the whole number of petitioners, therefore, the eleven names of the persons who have an estate in expectancy but not in actual possession, we have remaining 124 actual freeholders. Of this number the sixtjrthree petitioners who “ stand pat ” constitute a clear majority. The court, therefore, had jurisdiction. This preliminary question being determined, little remains to be said, and we need not consider whether the six petitioners who desired to withdraw their names from the application had a legal right to do so or not.

The requirements of the petition for incorporation are purely statutory. The petition follows the requirements of the act in stating that the petitioners “ are a majority of the freeholders residing within the limits of the ” territory to be incorporated. There is nothing in the act which requires the application to set forth the number of. freeholders residing within the proposed territory, nor is there any provision that it is to be verified by affidavit. The requirements of the act having been fully complied with, we see no merit in the third assignment of error.

The fourth assignment is merely a general one relating to the decree, which we think was entirely justified under the provisions of the act of 1834, supra, and in the exercise of the sound discretion of the court.

The decree of the court below is, therefore, affirmed and the appeal dismissed at the costs of the appellants.