text:
    Gettysburg Borough v. Gettysburg Transit Company, Appellant.

      Practice, C. P. — Trial by court without a jury — Form of the decision —Act of April 22, 1874, P. L. ,109.
    Where a case is tried by the court without a jury under the Act of April 22, 1874, P. L. 109, the fact that the judge’s discussion of the pertinent legal principles and authorities does not follow, but precedes his statement of the final conclusion' or conclusions of law, is not ground for valid objection to the form of the decision.

      Boroughs — Ordinance—Police power — License tax — Street railways.

    A license tax imposed by a borough ordinance on street cars is not invalid because there is no allusion therein to police inspection and regulation.
    If a license tax is lawful if intended for police regulation, but is unlawful if intended for revenue purposes, the presumption is that the purpose of the ordinance was lawful, unless the contrary clearly appears.
    The burden of proving the reasonableness of an ordinance imposing a license tax on street railway cars is not upon the borough imposing the tax, but upon the street railway company owning the cars.
    The courts will not declare such an ordinance void because of the alleged unreasonableness of the fee charged, unless the unreasonableness be so clearly apparent as to demonstrate an abuse of discretion on the part of the municipal authorities.
    An annual license tax on a street car imposed as police regulation includes more than a mere periodical inspection of the cars by the municipality. Such a tax is a specific charge to meet the entire expense of the duty of regulation, inspection and supervision cast upon the municipality with respect to the manner in which the company is exercising its privilege.
    The fact that a borough neglects some part of its supervisory duty as to cars during the year, is not, standing alone, a bar to. an action to recover a reasonable license fee for a particular year which was due and collectible at the beginning of the year:
    In a proceeding by a borough against a street railway company to recover an annual license tax on street cars, the company may show the existence of another ordinance whereby street railway companies were obliged to pay an annual sum of fifty cents for each pole carrying overhead wires.
    A license fee which might be reasonable, if intended to cover the probable expense incident to proper police supervision and inspection of the railway, and its operation as a whole, may be excessive and unreasonable when considered in connection with the fact, that under another ordinance an additional license fee is exacted for the inspection and supervision of poles and wires.
    The probable additional cost to .a borough of maintaining and keeping in repair the portions outside the tracks of the streets on which an electric railway is lawfully operated under municipal consent, cannot be included in the license fee imposed by the municipality in the exercise of its police power.
    In an action by a borough against a street railway company to recover an annual license tax on street cars, it is error to consider evidence to the effect that in consequence of the occupation of the streets by the railway tracks, and the kind of rail used, the great burden of travel is cast upon the sides of the streets and this increases the costs to the borough of repairing and maintaining them.
    Argued March 10, 1908.
    Appeal, No. 12, March T., 1908, by defendant, from judgment of 0. P. Adams Co., Jan. T., 1906, No. 1, for plaintiff on case tried by court without a jury in suit of Gettysburg Borough v. Gettysburg Transit Com.pany.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for the collection of a license tax on street cars.
    The case was tried by Swope, P. J., without a jury under the act of April 22,1874.
    The opinion of the court was as follows:
    The plaintiff borough in this action is seeking to recover from the defendant company the sum of $151, with interest from June 1,1905, for an annual license fee from June 1, 1904, to June 1, 1905, of $50.00 each on three cars, and $1.00 for an additional car run on one day during said year.
    The defendant company refuses payment of this claim for the reason that the ordinance under which its payment is attempted to be enforced is unreasonable and was enacted as a mere revenue measure.
    By agreement of parties the matter has been submitted to the court on testimony and argument.
    We find the following facts which we think are all that are necessary for the proper determination of this contention:

      The Gettysburg Transit Company is a corporation duly incorporated by the .state of Pennsylvania, and is successor to the rights and franchises of the Gettysburg Electric Railway Company.
    The burgess and town council of the borough of Gettysburg, by ordinance duly approved July 31, 1891, granted permission to the Gettysburg Electric Railway Company to construct and operate a single track electric railway with the necessary tracks, turnouts, turntables, sidings and switches, and to erect the necessary poles and suspend thereon wires on the following streets, viz.: On Carlisle street from the Western Maryland railroad station to the Center square and from thence to the borough limits. On Chambersburg street and the Springs Hotel road from the Public Square to the borough limits. And on Washington street and the Taneytown road from the Philadelphia and Reading railroad station to the borough limits.
    This electric railroad was constructed on positions of said streets in the borough of Gettysburg in compliance with the provisions of the ordinance of July 31, 1891, and other ordinances passed by said borough.
    The conditions of these ordinances are largely immaterial to our present inquiry and we need mention but few of them.
    The rail used in the construction of this railroad is known as the “T” rail, and the guage of the railway is four feet eight and one-half inches.
    The company is required to pike the portions of all the streets included between rails of its tracks and also two feet on both sides with such crushed stone or other material made firm and solid with heavy rollers as shall be satisfactory to the committee on streets.
    The said company is also obliged to save and keep the borough of Gettysburg harmless from any damage that may be done to persons, corporations or property by reason of - the construction and operation of said railway.
    On July 2, 1895, the following ordinance of the borough of Gettysburg was duly approved: “That all street railway companies which now occupy or which may hereafter occupy or acquire the right to occupy any of the streets, avenues or public thoroughfares of the borough of Gettysburg, shall within thirty days from the passage of this ordinance, and annually thereafter, before the 1st day of June, pay an annual license fee of $50 for each and every car run or propelled along or upon the streets, avenues or public thoroughfares aforesaid, and each car so run or propelled shall be numbered apd have its number painted in a conspicuous place and a certificate of license duly numbered shall be hung in each.”
    For years the defendant company and its predecessor in title have paid this license.
    At the request of the defendant company, the town council, in 1904, as appears by their minutes, passed a certain resolution whereby the enforcement of the above-mentioned ordinance was so modified that but $50.00 per year was to be paid on three cars each only and $1.00 per day on each car above three run on any one day.
    This is all the fee now sought to be collected by the borough under the ordinance of June 2, 1895, as modified by their subsequent action, and, as before stated, $50.00 each for three cars, and $1.00 for an additional car used during the year, is all that is sought to be recovered in this suit.
    The defendant company has six cars which it owns and to some extent operates. They are all unusually heavy and large cars, having considerably more carrying capacity than the ordinary trolley cars.
    This may be said to be purely an excursion railroad, transporting tourists over the streets of Gettysburg to and from the battlefield.
    It is operated only one-half the year from about May 30th to November. During the balance of the year there is no. pretense of operation, and the borough is left with the annoyance of tracks, poles and wires, without any compensating public service in any way.
    During the summer and fall months, 'the road at times is operated to its full capacity to meet the demand of big days and excursions which are not unfrequent here. At times the road is entirely unable to accommodate the demand of visitors, and then but one car a day will be run upon a regular schedule, passing a given point at intervals of one hour.
    The uncertain and spasmodic running of this railway, in our opinion, requires at least as careful supervision on the part of the borough in the interests of the public, as if it were continually and regularly operated.
    The defendant company made regular examination and inspection of its cars, tracks, poles and wires.
    The liability of the defendant company to keep the streets through which their tracks run in proper condition was looked after by the highway committee of the council.
    It does not appear that the borough authorities made any regular inspection tour of the cars of the company. In fact, they made no such inspection. It does appear, however, and we so find — that the cars of the company stop at the Eagle Hotel in the borough as a kind of station. That during the year for which this license fee is charged they also stopped at times at the two different railroad stations in the town, and this, on big days, caused or helped to cause a blocking of the crowd and vehicles at these places, requiring the employment by the borough of extra police for the supervision and control of the same and the safe and proper handling of the cars of said company.
    The evidence in this case might not justify us in finding that from June 1, 1904, to June 1,1905, the borough of Gettysburg actually expended the sum of $151 in the inspection and supervision of the cars, tracks, etc., of this company, but we are clearly of the opinion that such an amount might reasonably and fairly be expended, in such a careful and thorough inspection and supervision of this railway, as it is the duty of the borough of Gettysburg to exercise for the safety of its citizens and the public.
    We refuse to find that the ordinance of June 2, 1895, modified as it has been by the action of council, to an annual fee of $50.00 for each of three cars and an additional $1.00 per day for one car used in excess of three (when but $1.00 for an entire year is charged for an additional car) is an unreasonable ordinance.

      Some informalities in reference to the action of council were referred to on the argument, but we understand none of them are now proved, and that the question of the reasonableness of the ordinance as modified and now only sought to be enforced, is now before us.
    DISCUSSIONS AND CONCLUSIONS OF LAW.
    It is admitted that the borough ordinance imposing a license fee on the cars of the defendant company, such as is involved in this suit, would be void as a mere revenue measure, and can be sustained only as an exercise of-the police power which is inherent in all municipalities.
    But “certainly if a municipal regulation is adopted which would be lawful if intended for one purpose and unlawful if intended for another, the presumptiqn is that the purpose was lawful, unless the contrary clearly appears: Johnson v. Philadelphia, 60 Pa. 445. And the employment of special police at certain times by the borough to control the crowd and supervise the running of the defendant’s cars is an affirmance of this presumption.
    There being nothing in the testimony before us to justify a removal of this presumption, the ordinance in question must be treated as intended and passed by the borough authorities in the exercise of their police powers.
    It is also admitted that the exercise of this police power by the borough to be valid, must impose only a reasonable fee for police inspection and supervision. •> •
    But the unreasonableness of the fee necessary to make void an ordinance so enacted, must be so clearly apparent as to demonstrate an abuse of discretion on the part of the municipal authorities. The amount of the license fee rests in the first instance with the borough, and it is only where discretion is abused that the courts are justified in interfering: North Braddock Borough v. Traction Co., 8 .Pa. Superior Ct. 233; New Hope Borough v. Western Union Telegraph Co., 16 Pa. Superior Ct. 306; Kittanning Electric Light, Heat and Power Co. v. Kittanning Boro., 11 Pa. Superior Ct. 31.
    The elements which enter into the question of the reasonableness of the fee are the necessary or probable expenses incident to the issuing of the license and the probable expense of proper inspection, regulation and police surveillance. The measure of the reasonableness of the charge is not the amount annually expended by the borough in a particular year: Taylor Boro. v. Postal Tel. & Cable Co., 16 Pa. Superior Ct. 344.
    If it were possible to know in advance the exact cost of a proper supervision of the defendant company, that would constitute the proper limit of the fee, but in the nature of things that is impossible and “so the municipality is at liberty to make the charge large enough to carry any reasonable anticipated expense. It is authorized to fix such charge in advance and need not wait until the end of the period for which the license is granted. It may not act arbitrarily or unreasonably, but the risk may rightfully be cast upon the licensee, and the charge cannot be avoided because it subsequently appears that it was somewhat in excess of the actual expense of the supervision:” Schellsburg v. W. U. Tel. Co., 26 Pa. Superior Ct. 343.
    The decision of the supreme court of the United States, in Postal Telegraph Cable Co. v. New Hope Borough, decided in 1904, in which the judgment of the Supreme Court of this state affirming the judgment of our Superior Court, which had affirmed the common pleas in giving judgment for want of sufficient affidavit of defens,e, was reversed; as well as the case of the United Telephone, etc., Co. v. Borough of Carlisle, 31 Pa. C. C. Rep. 481, and other cases decided by our Superior Court in reference to companies engaged in interstate commerce, since the above decision by the supreme court of the United States — we feel are not controlling as to the case in hand, because the defendant company is a purely local company, incorporated under the laws of Pennsylvania, is doing a purely local business, and is not engaged in interstate commerce in any way.
    Where a federal question is involved the decision of the supreme court of the United States must undoubtedly control, but upon all questions of purely state law, the decisions of the Supreme Court of Pennsylvania are alone of binding authority: Kittanning Boro. v. Nat. Gas Co., 26 Pa. Superior Ct. 355; W. Conshohocken Boro. v. L. & P. Co., 29 Pa. Superior Ct. 7.
    Finding as we do, that the ordinance in question, by virtue of which the fees in dispute are sought to be recovered in this suit, was passed by the borough of Gettysburg in the exercise of its police power — that it is a reasonable ordinance — and that the defendant company is indebted to the said'borough in the sum of $151 for the supervision of its cars under the conditions of said ordinance from June 1, 1904, to June 1, 1905, we hereby direct that judgment be entered in favor of the plaintiff and against the defendant for the sum of $151, with interest from June 1, 1905.
    We cannot agree with thp contention of the plaintiff that this license fee could be maintained against the defendant company under the act of April 22, 1889. An electric railway running through the streets of a borough and adjoining districts, is clearly not within the intendment of that act.

      Errors assigned were in dismissing exceptions to findings and conclusion of the court.

      D. P. McPherson and Wm. McClean, for appellant. —
    The decision of the court must state separately and distinctly the facts found, the answers to points and the conclusions of law: Foreman v. Hosler, 94 Pa. 418; Com. v. Beneficial Assn., 137 Pa. 412; Lewars v. Weaver, 121 Pa. 268.
    The ordinance was unreasonable: Lower Merion Twp. v. Tel. Cable Co., 25 Pa. Superior Ct. 306; Norwood Boro. v. W. U. Teleg. Co., 25 Pa. Superior Ct. 406; Schellsburg v. W. U. Teleg. Co., 26 Pa. Superior Ct. 343; Shenandoah Boro. v. Schuylkill Traction Co., 12 Pa. Dist. Rep. 154.
    The amount of the fee imposed must be limited to the amount of the expenses that the borough might reasonably and fairly incur for such inspection, regulating and police surveillance as the borough may lawfully give: Schellsburg v. W. U. Tel. Co., 26 Pa. Superior Ct. 343; Erie City v. Erie Elec. Motor Co., 24 Pa. Superior Ct. 77; Allentown v. W. U. Tel. Co., 148 Pa. 117.

      The money spent by the borough in the repairing of the streets on which the lines of the defendant company are now located, is not a proper element in determining the reasonableness of the license fee imposed by the borough. Such repairing is a duty on the part of the borough which does not pertain to the exercise of its police power: Secs. 2 and 4 of Act of assembly approved April 3, 1851, P. L. 320, entitled “An Act regulating boroughs:” McLaughlin v. City of Corry, 77 Pa. 109; Allentown v. Kramer, 73 Pa. 406; Dean v. New Milford Twp., 5 W. & S. 545.

      W. C. Sheely, with him R. E. Wible, for appellee. —
    We respectfully urge that the findings of fact in the present case fully meet every requirement of the act of assembly and fully comply with the requirements of the decisions of the appellate courts: Krauskopf v. Yarn Finishing Co., 26 Pa. Superior Ct. 506; Ellis v. Lane, 85 Pa. 265; Com. v. Monongahela Co., 216 Pa. 108.
    The decisions cited by the appellant and relied upon by it on the question of the unreasonableness of the license fee in this case are without exception cases of license fees for the poles of telegraph or telephone companies and are governed by the decisions of the supreme court of the United States in the cases: Postal Telegraph Cable Co. v. Taylor Borough, 192 U. S. 54; Postal Telegraph Cable Co. v. Borough of New Hope, 192 U. S. 64.
    Those cases are not controlling in the case at bar and in this case we are bound only by the decisions of the Supreme and Superior Courts of this state: Collingdale Borough v. Tel. & Tel. Co., 33 Pa. Superior Ct. 351; West Conshohocken Borough v. Electric Light, etc., Co., 29 Pa. Superior Ct. 7; Kittanning Boro. v. Nat. Gas Co., 26 Pa. Superior Ct. 355.
    The question of the reasonableness of the license is entirely for the court. It is not a question of fact to be passed upon by the jury: New Hope Boro. v. Tel. Co., 16 Pa. Superior Ct. 306; Kneedler v. Borough of Norristown, 100 Pa. 368; Allentown v. W. U. Telegraph Co., 148 Pa. 117; North Braddock Borough v. Traction Co., 8 Pa. Superior Ct. 233.

      July 15, 1908:
    The fact that the original ordinance' granting this railroad company permission to enter the town had no reference to license fees and no reservation of the right to impose them is utterly irrelevant and immaterial: Light, Heat and Power Co. v. Kittanning Boro., 11 Pa. Superior Ct. 31; McKeesport v. Pass. Ry. Co., 2 Pa. Superior Ct. 242; Frankford, etc., Ry. Co. v. Philadelphia, 58 Pa. 119.
    The burden of proving the license fee in this case to be unreasonable was upon appellant: West Conshohocken Borough v. Electric Light, etc., Co., 29 Pa. Superior Ct. 7.
   Opinion by

Rice, P. J.,

Section 2 of the Act of April 22, 1874, P. L. 109, provides that “the decision of the court shall be in writing, stating separately and distinctly the facts found, the answers to any points submitted in writing by counsel and the conclusions of law.” Failure to conform substantially to these requirements, if assigned for error, is ground for reversal. But we are unable to agree with appellant’s counsel that they were not observed by the learned trial judge in the present case. It is not clear that the points were not virtually answered in the court’s general findings and conclusions. See Commonwealth v. Monongahela Bridge Company, 216 Pa. 108. But be that as it may, the court cured the irregularity, if any, by answering then specifically when the objection was raised by the exceptions first filed, and giving opportunity to file exceptions to its answers. The findings of fact, while not numbered, are stated in separate paragraphs, and with sufficient regard to formality. Then, after discussion of legal principles applicable to the case, and citation of pertinent authorities, the court set forth in a distinct paragraph, and in such form that it could not be misunderstood, a conclusion of law, which, if correct, would sustain a judgment in the plaintiff’s favor for the amount therein directed. The fact that a judge’s discussion of the pertinent' legal'principles and authorities does not follow, but precedes, his statement of the final conclusion or conclusions of law is not ground for valid objection to the form of the decision.

It is argued that the ordinance is invalid because there is no allusion therein to police inspection or regulation. But the learned judge properly held that this is not ground for holding that it was adopted for revenue purposes and not as a police measure. The regulation of matters affecting the public through the medium of a license fee, or, as sometimes called, a license tax, is a recognized exercise of the police power, and it is settled by decisions relating directly to such ordinances as that now under consideration that if a municipal regulation is adopted, which would be lawful if intended for one purpose and unlawful if intended for another, the presumption is that the purpose was lawful, unless the contrary clearly appears: Johnson v. Philadelphia, 60 Pa. 445; Oil City v. Oil City Trust Co., 151 Pa. 454; Lansdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490.

It is contended further that the burden of proving the reasonableness of the ordinance, and particularly the reasonableness of the license fee, was on the plaintiff. But the exact contrary has been held in numerous cases. The rule that should govern the exercise of the power to revise the action of municipal authorities, conferred upon the courts by the Act of April 17, 1905, P. L. 183, need not be considered in this case. But in an action, such as this is, to recover a license fee, the rule is definitely settled by the decisions that the courts will not declare the ordinance void because of the alleged unreasonableness of the fee charged, unless the unreasonableness be so clearly apparent as to demonstrate an abuse of discretion on the part of the municipal authorities.

Considerable stress is laid by defendant’s counsel on the fact that the borough through its officers and agents did not inspect the cars of the defendant company. But it is to be borne in mind that the annual license fee for which the action was brought is not a property tax, and that the police purpose for which it was imposed, presumably, included more than a mere periodic inspection of the cars. Such' fee has been spoken of as a specific charge to meet the entire expense of the duty of regulation, inspection and supervision cast upon the municipality with respect to the manner in which the company is exercising its privilege: Kittanning Borough v. Consolidated Natural Gas Co., 219 Pa. 250; Pottsville Borough v. Pottsville Gas Co., 33 Pa. Superior Ct. 480. It is to be borne in mind, further, that while evidence as to the action of the borough during the year for which the license fee in suit was demanded was admissible for some purposes, yet the fact that the borough neglected some part of its supervisory duty during the year is not, standing alone, a bar to an action to recover a reasonable license fee for a particular year which was due and collectible at the beginning of the year: West Conshohocken Borough v. Conshohocken Electric Light & Power Co., 29 Pa. Superior Ct. 7.

The defendant offered to show that throughout the year for which the license fee of $50.00 a year for each of three cars, and $1.00 a day for each additional car, was demanded in this action, there was another ordinance in force whereby electric railway companies, and other companies having poles carrying overhead wires, were required to pay to the borough “as a license fee for the inspection of the same and for the ground occupied by the poles an annual sum of fifty cents for each pole.” We are not satisfied with the reason assigned by counsel for objecting to this offer. They say that it was irrelevant to the question before the court, which was the reasonableness of the “license tax for the cars of the company.” But the proper determination of that question depended upon the question whether the charge was imposed for mere inspection of the cars, or was intended to meet the entire expense of the duty of regulation, inspection and supervision cast upon the borough with respect to the manner in which the company is exercising its privileges. It was upon the latter theory that the learned court proceeded in arriving at the conclusion that the amount of the charge “might reasonably and fairly be expended, in such a careful and thorough inspection and supervision of this railway as it is the duty of the borough of Gettysburg to exercise for the safety of its citizens and the public.” From this and.other portions of the learned judge’s findings and conclusions it is fairly to be inferred, that in determining the reasonableness of the fee he took into consideration theexpense to the borough incident to proper inspection and supervision of the poles as well as of the other parts of the railway. But a license fee which might be reasonable, if intended to cover the probable expense incident to proper police supervision and inspection of the railway and its operation as a whole, might be excessive and unreasonable when considered in connection with the fact that under another ordinance an additional license fee is exacted for the inspection and supervision of a part of the railway, as, for example, the poles and wires. We are of opinion that the evidence should be admitted, and, unless its bearing on the case is explained away in some manner not now appearing, that it should be considered in determining the reasonableness of the license fee in suit.

The remaining inquiry that we deem necessary to notice particularly is as to the admissibility of evidence to the effect, that in consequence of the occupation of the streets by the railway tracks, and of the kind of rails used, the great burden of travel is cast upon the sides of the streets, and this increases the cost to the borough of repairing and maintaining them. The question stated broadly is, whether the probable additional cost to the borough of maintaining and keeping in repair the portions, outside the tracks, of the streets on which an electric railway is lawfully operated, under municipal consent, may be included in the license fee imposed by the municipality in the exercise of its police power. In the numerous cases in which the limits of the power of municipalities in this regard have been considered, it has been generally held that the elements which enter into the charge are the necessary or probable expense of such inspection, regulation and police surveillance as municipalities may lawfully give to the erection and maintenance of the appliances which individuals and corporations may acquire the right to introduce and maintain, upon and under the surface of the public highways: Pottsville Borough v. Pottsville Gas Co., 33 Pa. Superior Ct. 480 and cases there cited. It appears in the present case that municipal consent was given to the defendant company upon certain conditions, — inter alia, to keep in repair the portion of the street between the rails and a certain space on either side. The court properly held that for failure to comply with these conditions the remedy of the borough was upon its contract. It seems equally clear that a direct attempt to impose on the defendant the duty of repairing the street outside the limits covered by those conditions could not succeed, and if the municipality could not do that directly, except by making it a condition upon which its consent was given, it is impossible to see how it could do it indirectly by making the annual license fee sufficiently large to cover the probable cost of such repair. This would introduce an element into such charge which has not heretofore been recognized as entering into it — an element, too, which it is not necessary to introduce in order to indemnify the borough against loss by reason of its expenditure in the exercise of the police power, upon which, alone, ordinances imposing such charges are sustained. The learned judge admitted the kind of evidence we are now considering with evident hesitation, and at the same time said that he would pass later upon the question whether it should be considered by the court on the question of the reasonableness or unreasonableness of the ordinance. It does not clearly appear in his findings and conclusions that he did consider it; indeed, there is some ground for inferring that he did not. But, on the other hand, he does not expressly say that he wholly excluded it from consideration. To say the least, there is not absolute certainty with regard to the matter. The uncertainty is to some extent increased by the fact that the admission of the testimony was the subject of two of the exceptions to the decision of the court and that in entering final judgment no allusion was made to them. Under the circumstances we feel constrained to sustain the fourth, fifth, sixth and seventh assignments of error.

The judgment is reversed and a new trial awarded.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Heinrich v. Pittsburg Railways Company, Appellant.

      Contract — Disposal of dead body — Undertaker—Street railways — Inspectors — Principal and agent.

    Where a person is killed .on the track of a street railway, and the line is blocked by reason of the difficulty of disposing of the body, an inspector of the company whose duty it is to keep the line open, has authority to contract with an undertaker near at hand to take and bury the body at the company’s expense.
    If in such a case the imdertaker before incurring the expense of actual burial, informs the superintendent of the company of the arrangement made with the inspector, and the superintendent tells him to go ahead, the company will be deemed to have ratified the act of the inspector.
    Argued April 17, 1908.
    Appeal, No. 174, April T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 683, on verdict for plaintiff in case of Lewis L. Heinrich v. Pittsburg Railways Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover for the burial of a dead body. Before Shafer, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $94.60. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Don Bose, with him Clarence Burleigh, J. C. Gray and W. A. Challener, for appellant. —
    There is absolutely no testimony in this case showing that a car inspector or dispatcher had any general or special authority from the defendant company to engage for the performance of the services alleged; that they had ever done so before; that the defendant company had ever held them out as having such authority, or that defendant company ever ratified any engagement of services alleged in this case: Weldon v. Traction Co., 27 Pa. Superior Ct. 257; Lauer Brewing Co. v. Schmidt, 24 Pa. Superior Ct. 396; Beal & Simons v. Express Co., 13 Pa. Superior Ct. 143.
    July 15, 1908:

      James G. Hays, for appellee. —
    Clearly this inspector had the right, and it was his duty to pledge the liability of his company under the facts in this case. Had the defendant’s car wrecked a wagon, blocking the tracks, would he not have had the authority to contract for its removal, and would not his company have been liable?
    But beyond this express authority, the defendant is liable, because, since it acts and must act only by agents, the company inspector and surgeon became “agents of necessity” under the circumstances, with full power to make necessary arrangements and binding contracts: Clark and Skyles on Agency, sec. 62, p. 161; Reinhard on Agency, sec. 85, p. 75; Patterson v. Consolidated Traction Co., 9 Pa. Dist. Rep. 362.
   Opinion by

Henderson, J.,

The plaintiff’s case does not depend upon his ability to show that a motorman or inspector of a traction company has general authority to contract for the burial of the body of a person killed in an accident on the track. It is to be decided on the special facts exhibited by the evidence and if this shows express authority in a servant or authority in an emergency arising out of the necessities of the case or a ratification of the act of a servant done without authority the defendant’s liability is established. A boy was struck by one of the defendant’s cars and killed. His body was under the car. An inspector of the company and a surgeon, usually employed by it, arrived at the place of the accident about the time the body of the boy was removed from under the car. Several of the defendant’s cars were stopped by the accident and action became necessary on the part of the employees of the company to dispose of the dead body.- The inspector and surgeon decided to remove it to the plaintiff’s office which was three or four blocks away. They accordingly placed the body on the platform of a car and took it there. When informed of the facts the plaintiff told the inspector and surgeon that he knew the boy’s mother; that she was unable to bury him and that they had better take the body to the morgue. This they objected to, saying they could not tie up the whole line and told, him to go ahead and that it would be all right. The duties of the inspector are thus stated by the defendant’s superintendent of division five in which the accident occurred: “They are sent out to open up any blockades that happen along the road, to see the track is sanded when the track is bad, to see that the motormen and conductors perform their duties properly, and look after any accidents that may happen and render any assistance they can.

“Q. Their duty is to see to the operation of the road? A. Yes, sir.”

The inspector, himself, in his testimony included among his duties the opening of blockades and looking after the injured in the case of accidents. It is not claimed that the surgeon had any authority in the premises, but his acts were in the presence of the inspector and with the latter’s approbation. That the body was taken to the undertaker for burial seems evident from the testimony of the plaintiff, not contradicted. The servants of the company had in their charge the mangled body of the boy which they undertook to dispose of in a decent and orderly manner, and they were acting within the scope of their authority in making the disposal of it which they did. It would seem that the express authority of the inspector would extend this far, but whether that is so or not the emergency of the accident invested the representative of the company highest in authority who was then present with power to do everything proper to free the track and to relieve the employees from the custody of the body: Terre Haute, etc., R. R. Co. v. McMurray, 98 Ind. 358; Northern Central Ry. Co. v. State, 29 Md. 420; Quinn v. Ry. Co., 7 Pa. Superior Ct. 19. If, then, the inspector, having the body on the platform of one of the cars of the company, made an arrangement with the plaintiff to take it for burial in order that the line might not be tied up in removing it to the morgue, the emergency and the necessity of the defendant’s situation would invest the agent with authority to bind the company. The learned judge did not go this far in his instruction to the jury, but submitted to them the question whether the defendant was not bound because of a ratification of the act of the inspector after having been informed of what was done by the plaintiff before the burial of the deceased. Of this instruction we think there is no substantial ground of complaint, for it was shown that the plaintiff went to the superintendent of the division and told him what the inspector and surgeon had done and that he wanted to bury the boy on Monday morning; whereupon the superintendent said, “It will be all right and somebody will be up to see you this morning.” No one came up and the plaintiff then proceeded to conduct the funeral. It was the duty of the company when informed of what had been done to repudiate the act of its servant if beyond his authority. This was not only not done but the plaintiff was encouraged to thereafter incur the principal part of the expense, for which his action is brought, and he was thereby warranted in believing that the company intended to be bound by the action of its inspector. Having put-the body in the plaintiff’s charge it was the duty of the defendant to notify him if it did not intend to pay the expense incident to the burden which they had placed on him.

The judgment is affirmed.


author: Head, J.,

text:
    Bair & Gazzam Manufacturing Company v. Vandersaal, Appellant.

      Corporations — Officers—Compensation—Contract—President.
    An officer of a corporation is not entitled to compensation, unless such compensation has been agreed upon before he accepts office; and this rule applies to the president of a corporation, whether he be a director or stockholder, or not.
    Argued April 17, 1908.
    Appeal, No. 180, April T., 1908, by defendant, from order of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 374, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Bair & Gazzam Manufacturing Co. v. S. W. Vandersaal.
    June 15, 1908:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      B. J. Jarrett, with him Willis F. McCook, for appellant.—
    Plaintiff was entitled to recover: Bagaley v. Iron Co., 146 Pa. 478; Stacy v. Cherokee Foundry & Machine Works, 49 S. E. Repr. 223; Sawyer v. Pawners’ Bank, 88 Mass. 207.

      C. C. Dickey, of Shiras & Dickey, for appellees. —
    The president, whether a director or not, stands to the corporation in a relation of trust and confidence. The interests of the corporation are likely to be more dependent upon him than upon any director not an officer, and the trust relation is the reason for the rule of law which prohibits him from receiving compensation from his corporation unless the same be fixed by contract with the corporation before the services are rendered: Martindale v. Wilson-Cass Co., 134 Pa. 348; Kilpatrick v. Penrose Ferry Bridge Co., 49 Pa. 118; Carr v. Coal Co., 25 Pa. 337.
   Opinion by

Head, J.,

The plaintiff is a corporation of the state of Pennsylvania and by a decree of court has been placed in the hands of a receiver. At the time of such decree the defendant was the president and active head of the corporation. On the day of the decree he took, of the moneys of the company under his control, the sum of $500 and applied it, as he admits, “in part payment of his salary as president of said company.” The receiver sues to compel the return of this sum to the corporate treasury. The defendant, in his affidavit of defense, avers that he was duly elected president of the company by a resolution of its board of directors; that he “accepted the office upon the express condition and understanding that he should be paid a reasonable and proper salary for the services he should thereafter render;” that his services were extensive and valuable to the company; that “five thousand-dollars a year is a proper and reasonable compensation for the service he has rendered and at the rate of said $5,000 per year there is due and owing to defendant from plaintiff as salary to date the sum of $3,750,” and that a certificate of balance would be asked for on the trial. In his supplemental affidavit he further avers that his predecessor in office had received compensation, although no amount is stated; that defendant was present at the meeting of the board when the resolution electing him was passed and that he then stated he would accept the office “upon the understanding he should be paid a reasonable and proper salary for his services, to which the said board of directors acquiesced.”. The learned court below, being of opinion the affidavits disclosed no sound defense to the plaintiff’s claim, entered judgment for the plaintiff, and the defendant appeals.

Thus the defendant — who, under the operation of our defalcation act, becomes, for all practical purposes, a plaintiff— seeks to recover, on a quantum meruit,- the fair and reasonable value of his services as president of a corporation, when neither in the by-laws nor by any resolution of stockholders or directors was his right to any compensation declared or the amount of it fixed and agreed to before the services were rendered. That such an action cannot be maintained we regard as abundantly settled’. The learned court below well says “we are confronted in this case by the rule of law that an officer of a corporation is not entitled to compensation unless such compensation has been agreed upon before he accepts the office.” The authorities reviewed by him fully sustain the conclusion he reaches. We content ourselves with brief quotations from but one or two of them. In Kilpatrick v. Bridge Co., 49 Pa. 118, the Supreme Court, denying the right of a president and treasurer to recover, on a quantum meruit, for compensation for official services, say: “The salary or compensation of corporate officers is usually fixed by a by-law or by a resolution of the directors or stockholders, but where no salary has been fixed none can be recovered. ... It is well that the rule of law is so. Corporate officers have ample opportunities to adjust and fix their compensation before they render their services, and no great mischief is likely to result from compelling them to do so. But if, on the other hand, actions are to be maintained by corporate officers for services, which, however faithful and valuable, were not rendered on the footing of an express contract, there would be no limitation to corporate liabilities, and stockholders would be devoured by officers.” In Martindale v. Wilson-Cass Co., 134 Pa. 348, Mr. Justice McCollum, speaking for the court, says: “The official services of a director or president of a private corporation are rendered in and about its business and at its request, but he cannot recover pay for such services unless an agreement for compensation preceded them. No presumption of such agreement arises from the services; it must be proven.”

But counsel for appellant contends that it does not affirmatively appear from the affidavit that he was either a stockholder or director in the plaintiff company and that he is thus an exception to the general rule which ought to be construed to apply only where the officer is also a shareholder. If the defendant was able to aver as a fact that he was not a stockholder or director, and relies on that fact to shield himself from the operation of a general rule of law founded in public policy, he should not have been silent on such an important matter. But the affidavit does aver that the defendant was duly elected president of the plaintiff company, which is averred to be a Pennsylvania corporation. No special charter is set up. If defendant was duly, lawfully elected to the office he must have been eligible. The fifth section of the general corporation act of 1874, in this respect re-enacted by the amending Act of May 14, 1891, P. L. 61, provides: “The number of directors or trustees shall not be less than three; one of them shall be chosen president by the directors, or by the members of the corporation, as the by-laws shall direct.” Finally, the affidavit declares that the defendant was present at the meeting of the board of directors when the resolution electing him was passed. In the face of these considerations we are unable to see how the court could reasonably adopt a theory resting on the assumption of fact that the defendant was neither a stockholder nor director of the corporation.

But we are not willing to give to the rule the narrow construction contended for. We find nothing in the statement of the rule itself by the highest authority, nor in the wise policy in which it has its foundation, to warrant us in so limiting its usefulness. In Kilpatrick v. Bridge Co., 49 Pa. 118 it is said: “The rule is just as applicable to presidents and treasurers or other officers as to directors. . . . Corporations stand upon their charters, and although their officers are in a certain sense agents of the stockholders, they are also trustees whose rights and powers are regulated by law. That they may not consume that which they are appointed to preserve, their compensation must be expressly appointed before it can be recovered by action at law.” The application to this case of the rule, which, with the reasons supporting it, is thus so strongly stated, renders the position of the appellant, in our judgment, untenable.

Judgment affirmed.


author: Per Curiam,

text:
    Commonwealth to Use, Appellant, v. Donnelly.

      Public officers — Bonds—Recorder of deeds — Negligent indexing of mortgage — Statute of limitations — Act of April 4, 1798, 3 Sm. L. 331, sec. 4.
    Sec. 4 of the Act of April 4, 1798, 3 Sm. L. 331, which provides that “it shall not be lawful for any person or persons whomsoever, to commence and maintain any suit or suits on any bonds or recognizances, which shall hereafter be given or entered into by any person or persons, as sureties for any public officers, from and after the expiration of the term of seven years, to be computed from the time at which the cause of action shall have accrued,” is a bar to an action brought against a surety on the official bond of a recorder, who during his term of office failed to properly index a mortgage; where said action is brought by a subsequent mortgagee more than twelve years after the term of the recorder had ended and more than fourteen years after the negligent act, but within seven years after the taking and recording of the second mortgage.
    Argued April 20, 1908.
    Appeal, No. 131, April T., 1908, by plaintiffs, from judgment of C. P. Westmoreland Co., May T., 1906, No. 552, on verdict for defendants in case of Commonwealth to use of Lucinda Thompson and Anna B. Thompson, executrix of the estate of Lewis Thompson, deceased, v. Joseph A. Donnelly and Margaret Conway, executors of Henry G. Donnelly, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a bond. Before Doty, P. j.
    At the trial the jury returned a verdict for defendants.
    On a rule for a new trial, and for judgment for plaintiff non obstante veredicto, Doty, P. J., filed the following opinion:
    The defendants are executors of Henry G. Donnelly, deceased, who was one of the sureties on the official bond of W. B. Conway, recorder of deeds of this county for three years from the first Monday of January, 1891. During his term as recorder, a mortgage given by William F. Uebing was presented for record and was duly recorded October 5, 1891. But by mistake the same was indexed in the name of William F. Nebing. Eight years after Conway’s term had expired, to wit: on April 4,1902, another mortgage given by William F. Uebing on the same property covered by the former mortgage was placed on record. Before any money was advanced on what may be called the second mortgage, a careful search was made of the record without discovery of the first mortgage, which was improperly indexed. After due proceedings on the first mortgage, the property was sold by. the sheriff and the sum of $945.57 was appropriated to the first mortgage on record and nothing to the one held by the use plaintiffs. Suit was brought April 11, 1906, to recover the sum of $945.57, with interest from February 24,1906, the date of the confirmation absolute of the sheriff’s distribution. The action was, therefore, brought more than twelve years after the term of the recorder had ended and more than fourteen years after the negligent act which caused the loss.
    The only defense is the statute of limitations. If this be no bar it is conceded that plaintiff is entitled to judgment in the sum of $945.57, with interest from February 25, 1906.
    The defendant relies on sec. 4 of the Act of April 4,1798, 3 Sm. L. 331, which provides that no suit shall be brought against the sureties of any public officer after seven years, “to be computed from the time at which the cause of action shall have accrued.” The plaintiff contends that the cause of action did not accrue at least until the second mortgage was placed on record on April 4, 1902, and that, therefore, the action is not barred.
    The mistake in the indexing occasioned the ultimate loss. It is not pretended that there was fraud or concealment. The whole question is whether the action accrued at the time the act of negligence was committed, or when a party prejudiced by such negligence was in a position to bring suit. The exact question has not been decided. No case precisely alike in facts has been discovered. In analogous cases, however, the principle which controls is readily ascertained.
    It seems to be well settled that the statute bars an action of tort six years after the wrong done. Thus in Owen v. Western Saving Fund, 97 Pa. 47, which was an action against a recorder for a false certificate, it was held that the statute began to run from the time the certificate was given and not from the development of damage.
    Suit was brought against directors for an illegal resolution, but in Link v. McLeod, 194 Pa. 566, it was held that the statute ran from the time the resolution was passed and not from time the money was paid. And in both cases last cited, it was recognized that ignorance of the transaction did not toll the statute. The principle is therefore settled that to an action brought for injuries resulting from an act done more than six years before, through mere mistake not involving fraud, the statute of limitations is a complete bar. See also Noonan v. Pardee, 200 Pa. 474; Guarantee Trust, etc., Co. v. Nat. Bank, 202 Pa. 94.
    An apparent exception to the rule is found in Lewey v. Coke Co., 166 Pa. 536, wherein an action after six years from the wrong done is sustained. The decision, however, was by a divided court and it was put on the express ground that the concealment of the wrong was a fraud. But the case has no application here, as fraud is not alleged.
    It is contended furthermore that the line of cases does not control because they all arise under the act of March 27, 1713, and not under the act of 1798 which is relied on by the defense. But. such contention is not well founded. The acts are substantially the same. Under the act of 1713 no action of case can be brought after six years from the “cause of such action.” While under the act of 1798, the same thing is expressed thus: “That no suit shall be brought after seven years from the time at which the cause of action shall have accrued.” Whether the limitation be from the cause of such action or from the time the cause of action shall accrue gives rise to no distinction. The expressions mean the same thing, as uniformly, under the act of 1713, it has been held that the statute begins to run upon the time the right of action accrues: Overton v. Tracey, 14 S. & R. 311; Evans v. See, 23 Pa. 88.
    An action of case against the recorder himself would likely be defeated by application of the principle declared in Owen v. Saving Fund, 97 Pa. 47. If it has no application in a suit against the sureties, the whole purpose of the act of 1798, as set forth in the preamble, would be defeated, and sureties on official bonds would be liable to suit many years after the term of their principal had ended.
    Defendants’ further reliance is on a line of cases of which Marsteller v. Marsteller, 93 Pa. 350, is the leading example. The case holds that if a cause of action accrue in the lifetime of a decedent the statute is not interrupted by the death, but if the action does not accrue until after the death, the statute begins to run only from the time of administration. It is plain that this principle is not in conflict with that declared in Link v. McLeod, 194 Pa. 566.
    July 15, 1908:
    Binney v. Brown, 116 Pa. 169, in its facts is a case much like the one in hand. Binney by mistake wrongfully entered satisfaction on the margin of a mortgage. Brown bought the property relying on a certificate from the recorder that he found no unsatisfied mortgages. The mistake was not discovered for fourteen years. The Supreme Court on appeal dismissed the case with the observation that plaintiff’s only remedy was an action on the case, a remedy long since barred by the statute of limitations.-
    And now, June 15, 1907, new trial refused and judgment on the verdict.

      Error assigned was in entering judgment on the verdict.

      O. B. Hollingsworth, with him H. E. Marker, for appellant.

      V. E. Williams, with him John S. Lightcap and Eugene Warden, for appellees.
   Per Curiam,

The question involved in this case is whether sec. 4 of the Act of April 4, 1798, 3 Sm. L. 331, which provides that “it shall not be lawful for any person or persons whomsoever, to commence and maintain any suit or suits on any bonds or recognizances, which shall hereafter be given or entered into by any person or persons, as sureties for any public officers, from and after the expiration of the term of seven years, to be computed from the time at which the cause of action shall have accrued,” is a bar to an action brought against a surety on the official bond of a recorder, who during his term of office failed to properly index a mortgage; where said action is brought by a subsequent mortgagee more than twelve years after the term of the recorder had ended and more than fourteen years after the negligent act, but within seven years after the taking and recording of the second mortgage. A very-plausible argument, accompanied by an excellent brief of cases, is made by the appellants’ counsel in favor of the proposition that, as a right of action did not accrue to the second mortgagee until he suffered injury by the negligent act of the recorder the statute did not begin to run until that date. The precise question does not appear to have been authoritatively decided in this state, and it must be conceded that it is not entirely free from difficulty, but we are of opinion that having regard to the declared purpose of the act, as set forth in the preamble, the learned judge below was right in his conclusion that the action was barred. This conclusion is well sustained by the reasoning of his opinion overruling the plaintiff’s motion for judgment non obstante veredicto, to which we refer for a full discussion of the question.

The judgment is affirmed.


author: Morrison, J.,

text:
    Makof v. Sherman.

      Equity — Injunction—Injunction against plaintiff — Cross bill — Equity practice — Security.
    A court cannot, at its own instance, enjoin one of the plaintiffs in a bill in equity from conveying real estate standing in his name, without any allegation or prayer in the pleadings to that end, and without a cross bill.
    A preliminary, temporary or special injunction cannot be granted without security.
    Submitted April 20, 1908.
    Appeal, No. 14, Oct. T., 1908, by M. A. Brookman, from decree of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 848, awarding preliminary injunction in case of David Makof, liquidating trustee of the National Real Estate Securities Company, and M. A. Brookman v. Abram J. Sherman and W. B. Marker.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      July 15, 1908:
    Bill in equity for an injunction.
    The opinion of the Superior Court states the case.

      Error assigned was in awarding an injunction order against Mathias A. Brookman.

      E. Spencer Miller, for appellant.
    No appearance nor printed brief for appellee.
   Opinion by

Morrison, J.,

The bill prays: 1. An injunction against conveying or incumbering by the defendants, the real estate specified. 2. A decree that the same be conveyed to David Makof, or his vendees as liquidating trustee. 3. An injunction against interference with the action of Makof as liquidating trustee. 4. General relief.

Appellant’s counsel states the question involved as follows: “Whether the court should enjoin one of the plaintiffs in a bill at its own instance, without any allegation or prayer in the pleadings to that end, and without a cross bill, from conveying real estate standing in his name, which real estate is not specified in the pleadings nor alluded to in any manner.”

The injunction order appealed from is paragraph third in the decree granted by the court below on December 19, 1907, in words as follows, to wit: “Third, that a cautionary order stand as against the plaintiff, Matthias A. Brookman, restraining him from making any disposition, directly or indirectly of the real estate as to which there is some evidence that he purchased the same with the moneys of the said David Makof.”

1. We consider this an injunction order; it is more than an admonitory order because it positively restrains Brookman from making any disposition of the real estate referred to in the order: Erie and North East R. R. Co. v. Casey, 26 Pa. 287.

2. The said injunction order cannot be sustained because the bill contains no prayer for any such relief and no cross bill was filed. That affirmative relief will not be granted against a plaintiff, even on behalf of a defendant, without a cross bill, save within a narrow group of exceptions, is well settled. “Where a defendant seeks the aid of the court for the purpose of enforcing his rights, he must file a cross bill; but when he relies upon his rights, merely by way of defense to the relief sought against him, it is not necessary to do so:” 2 Dan. Chan. PI. & Pr* 1550.

In Borckman’s Appeal, 2 Sadler, 518, a wife filed a bill in equity to set aside articles of separation between herself and husband. The court below dismissed the bill and decreed that the articles be given full effect. On appeal, the Supreme Court said, inter alia: “In the absence of any cross bill asking therefor, the portion of the decree as to the force and effect to be given to the articles of separation is unauthorized; and to the extent of striking out that part of the decree it is amended.” That case is also reported in 3 Cent. Repr. 546.

In Easton, etc., Passenger Ry. Co. v. Easton, 133 Pa. 505, the Supreme Court, per Mr. Chief Justice Paxson, p. 521, said: “The defendants have no right in this proceeding to ask this court to settle any question affecting the rights of the city in the matter in controversy. They have not filed a cross bill, nor have they applied to this court or any other court to adjust the differences between the city and the appellant company. They have no prayer for relief.” See also Freeland v. South Penn Oil Co., 189 Pa. 54; Williams v. Concord Congregational Church, 193 Pa. 120; McCune v. Lytle, 197 Pa. 404.

In Kelley v. Shay, 206 Pa. 208, it was said by Mr. Justice Potter: “So where the decision of a controversy between a plaintiff and two defendants raises an incidental and collateral question between the codefendants, the court will sometimes dispose of the matter by means of a reference to a master and thus save the expense of a separate suit, and the same course has been taken where it was impossible to give the plaintiff the relief to which he was entitled without first deciding a question between the codefendants: Hood v. Clapham, 19 Beav. 90-96; Duberly v. Day, 14. Beav. 9. But there is another ground upon which the action of the court below, in this respect, may be sustained. The adverse interest here is between codefendants, and as between themselves, defendants may have affirmative relief without a cross bill.”

These, and indeed all of the authorities, so far as we know, deny the propriety of affirmative relief in favor of a defendant, and against a plaintiff, in a case like the present one. This case falls under no exception to the general rule. As to the necessity of a prayer in the bill, even if the conditions warranted relief against the plaintiff, see Thomas v. Ellmaker, 1 Clark, 502; s. c., 1 Parsons, Select Equity Cases, 98; Horton’s App., 13 Pa. 67.

We find many authorities in our sister states to the effect that a judge has no power to make an order affecting the rights of a party, of his own mere motion.

The learned counsel for the appellant, in his argument, says: “That a plaintiff in a bill should be met, when prosecuting his cause in court, with a fresh proceeding grafted upon it, without pleadings and without notice, and his enjoyment of real estate assailed, no notice and no opportunity to defend being afforded him, would seem to violate the constitutional guaranty of due process of law.”

In Stuart v. Palmer, 74 N. Y. 183, it .is said: “It may, however, be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his right.” See also Westervelt v. Gregg, 12 N. Y. 202.

3. “But an injunction, whether preliminary, temporary dr special, cannot be granted without security, 'to be approved of by the court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction.’ This is a positive provision of the act of May 6, 1844, which the courts have no right to disobey. Its terms are general, and they include injunctions of every description, except those granted on a final hearing of’the cause:” Erie & North East R. R. Co. v. Casey, 26 Pa. 287.

But we need not consume time and space by the citation of additional authorities, because equity rule No. 82, which is binding upon the court below, reads as follows: “Cautionary orders in injunction bills shall not be made, nor shall any in-, junction be allowed except security be given'according to law”

We, therefore, hold that the court below érred in granting the so-called cautionary order, it being the third paragraph of the decree of December 19, 1907.

The assignment of error is sustained and the said cautionary order against the plaintiff, Matthias A. Brookman, is reversed, and it is further ordered and decreed that the defendants pay the costs of this appeal.


text:
    Swanwick v. Monongahela City, Appellant.

      Negligence — Municipalities—Defect in highway — Contributory negligence — Evidence—Question for fury.

    A person who knows a defect in a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect.
    The plaintiff, in an action founded on the alleged negligence of an other, does not assume the burden of disproving any contributory negligence upon his own part. Ordinarily the burden of establishing the facts upon which such negligence may be predicated is cast upon the party who takes'defense on that ground. But when contributory negligence is sufficently disclosed by the plaintiff's own evidence, of course, the defendant is relieved from the necessity of proving it. But even in such a case, unless the facts on which the alleged negligence rests are admitted, or established by evidence which is undisputed, the court may not declare, as matter of law, that such negligence exists, but must submit the question, under proper instructions, to the jury.
    In an action against a city to recover damages for personal injuries sustained by the plaintiff while riding in a wagon which sank into a deep hole in the road, the question of the plaintiff’s contributory negligence is for the jury, where the evidence shows that the road was an ordinary unimproved country road with a succession of bumps and holes; that at the time of the áccident it was so covered with mud and slush that it was hard to detect bad spots until the wheel was in them; that the plaintiff knew that the road was bad, but stated that he did not know that it was actually dangerous, and declared that he had never seen the especially deep hole which caused the accident, and that it was not to be discovered before the wheel went into it because of the mud and slush; that this was the only road he had to travel, and that at the time he was using reasonable care to avoid any injury from the jolting likely to be caused by the conditions he anticipated.

      Argued April 21, 1908.
    Appeal, No. 30, April T., 1908, by defendant, from judgment of C. P. Washington Co., Aug. T., 1906, No. 110, on verdict for plaintiff in case of Thomas Swan-wick v. Monongahela City.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Taylor, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $425. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      C. E. Gibson, with him Charles G. Mcllvain and W. K. Vance, for appellant. —
    It is the duty of the plaintiff to show a case clear of contributory negligence on his part before he can recover: Waters v. Wing, 59 Pa. 211; Township of Crescent v. Anderson, 114 Pa. 643; Dean v. Penna. R. R. Co., 129 Pa. 514.
    A traveler over a highway is not justified in braving a known danger, and holding the municipality for damages, and a person who knows of defects in a highway and voluntarily undertakes to test them cannot recover against the municipal authorities for losses incurred through such defects: Forks Twp. v. King, 84 Pa. 230; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; City of Erie v. Magill, 101 Pa. 616; Township of Crescent v. Anderson, 114 Pa. 643; Boyle v. Mahanoy City, 187 Pa. 1; Hill v. Tionesta Twp., 146 Pa. 11; Bailey v. Brown Twp., 190 Pa. 530; Mueller v. Ross Twp., 152 Pa. 399; Winner v. Oakland Twp., 158 Pa. 405; Haven v. Bridge Co., 151 Pa. 620; Shallcross v. Philadelphia, 187 Pa. 143.
    In this case the evidence concerning the material facts was not conflicting and presented the facts upon which the case ■depended clearly and distinctly, and it was a proper case for binding instructions: Barnes v. Sowden, 119 Pa. 53; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Monongahela City v. Fischer, 111 Pa. 9; Warner v. Ry. Co., 141 Pa. 615.
    July 15, 1908:

      Vernon Hazzard, for appellee. —
    What is and what is not negligence in a particular case is a question for the jury, when the measure of duty is ordinary and reasonable care: Nanticoke Boro. v. Warne, 106 Pa. 373; Burrell Twp. v. Uncapher, 117 Pa. 353; Smith v. City of New Castle, 178 Pa. 298; Jackson Twp. v. Wagner, 127 Pa. 184; City of Altoona v. Lotz, 114 Pa. 238; Douglass v. Monongahela City Water Co., 172 Pa. 435; Erie City v. Schwingle, 22 Pa. 384; Humphreys v. Armstrong County, 56 Pa. 204; Sprowls v. Morris Township, 179 Pa. 219; Lower Macungie Twp. v. Merkhoffer, 71 Pa. 276; Beatty v. Gilmore, 16 Pa. 463; McCully v. Clarke, 40 Pa. 399; Forker v. Sandy Lake Borough, 130 Pa. 123; Merriman v. Phillipsburg Boro., 158 Pa. 78; Borough of Easton v. Neff, 102 Pa. 474; City of Altoona v. Lotz, 114 Pa. 244.
   Opinion by

Head, J.,

It is an established rule of law in Pennsylvania that “a person who knows a defect in a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect:” Forks Twp. v. King, 84 Pa. 230; Hill v. Tionesta Twp., 146 Pa. 11. It is equally clear that the plaintiff, in an action founded on the alleged negligence of another, does not assume the burden of disproving any contributory negligence upon his own part. Ordinarily the burden of establishing the facts upon which such negligence may be predicated is cast upon the party who takes defense on that ground. “But when contributory negligence is sufficiently disclosed by the plaintiff's own evidence, of course, the defendant is relieved from the necessity of proving it:” Sopherstein v. Bertels, 178 Pa. 401. But even in such a case, unless the facts on which the alleged negligence rests are admitted, or established by evidence which is undisputed, the court may not declare, as matter of law, that such negligence exists, but must submit the question, under proper instructions, to the jury. The latter course was the one adopted by the learned trial court in the present case, and his refusal to give binding instructions in favor of the defendant constitutes the single error we are asked to correct.

The testimony delivered by the plaintiff is certainly open to the criticism that it is obscure and not free from apparently contradictory statements. It leaves the mind of the reader in some confusion as to the exact meaning intended to be conveyed. Had the jury reached the conclusion that the plaintiff had knowledge of the existence, in the road, of the hole which caused his fall, of its dangerous character and that, in spite of such knowledge, he voluntarily took the risk of attempting to pass it, he could not have justly complained. He had undeniably passed over the road many times both on foot and in the wagon on which he was riding at the time of the accident. He knew the surface of the road was a succession of bumps and holes so that one riding on a high seat, as he was, would be required to hold on if he would be certain of retaining his place. In a word, he knew the road was bad and so covered with mud and slush that it was hard to detect the bad spots until the wheel was in them. More than this cannot, we think, be predicated of the knowledge which he distinctly admits he possessed. Even if there were nothing else in his testimony to qualify these statements or define their significance in the mind of the witness, it would be a harsh rule of law to declare that a man, having that knowledge of an ordinary unimproved country road in the winter time, who undertook to travel it, would thereby convict himself of negligence and thus lose the right to recover against the municipality for an injury suffered, when such right would have been otherwise clear.

But the plaintiff nowhere admits that he regarded the holes of which he knew as actually dangerous, and declares that he had never seen the especially deep hole which caused his accident; that it was not to be discovered before the wheel went into it because of the soft mud and slush with which it was filled, that this was the only road he had to travel and that, at the time, he was using reasonable care to avoid any injury from the jolting likely to be caused by the conditions he anticipated. These statements of fact necessarily carried the case to the jury because, if true, they made it impossible for the learned trial court to declare, as matter of law, that no man of ordinary prudence and care, would have attempted the trip under the circumstances. None of the cases cited in the able brief for the appellant would have warranted the court in so declaring. An examination of these cases will show that in every one, where the rule we have quoted has been enforced, the standard of duty and measure of care that would have guided and controlled the conduct of a man of reasonable prudence, were so manifest that a refusal to enforce the rule would have been tantamount to a denial of its existence. Thus, in Hill v. Tionesta Twp., 146 Pa. 11, the plaintiff distinctly and repeatedly declared that he knew the road to be unsafe and regarded it as dangerous for any kind of hauling. In Crescent Twp. v. Anderson, 114 Pa. 643, the plaintiff was traveling along a road which had been carried over a ravine by a bridge which had been torn up for repairs, and travel along the ordinary route was thus plainly and effectually closed. The condition of the ravine, above the bridge, was clearly visible to her because it was broad daylight. After calculating the risk she voluntarily assumed it. In Winner v. Oakland Twp., 158 Pa. 405, the plaintiff, having been previously warned that the road was in bad condition, took it and in daylight approached “an obstruction consequent upon a corduroy construction and a ditch washed out,” etc. Her son, who was driving, got out and examined it, and came back and reported that it was pretty bad or dangerous, but thought by careful driving he could escape the danger he clearly.saw. The plaintiff assented, the attempt was made and the injury followed.

The substantial difference between these cases and that portrayed in the testimony of the plaintiff, last adverted to, seemA’to us to be patent. If that testimony was true what tribunal, but a jury, could declare that under such conditions ordinary'prudence and care would have forbidden the plaintiff, at the close of his day’s work, accepting a seat on the wagon and compelled him to go afoot? The measure of his duty was not fixed and unvarying because the conditions were unusual. The existence of contributory negligence thus became a mixed question of law and fact and was necessarily and properly submitted to the jury.

Judgment affirmed.


text:
    Gregg’s License.
    July 15, 1908:

      Liquor law — Constitutional law — Act of May 13, 1887, P. L. 108.
    The Act of May 13,1887, P. L. 108, relating to the granting of licenses for the sale of spirituous, brewed and malt liquors at retail does not violate any of the provisions of the constitution of the United States or the state of Pennsylvania.
    Submitted May 12, 1908.
    Appeal, No. 207, April T., 1908, by Yon Johnson et al., from order of Q. S. Butler Co., No. 7, Special Term, 1908, granting a liquor license In re Application of Ralph Gregg.
    Before Rice, P.J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for a liquor license.

      Error assigned was order granting the license.

      W. H. Martin, for appellants.
    No printed brief for appellee.
   Per Curiam,

A very elaborate argument has been presented in this case by the appellants’ counsel in support of the proposition that the Act of May 13,1887, P. L. 108 which authorizes the granting of license for the sale of spirituous, brewed and malt liquors at retail, is in violation of the constitution of the United States, as set out in the preamble of the same, and is in conflict with the provisions of the constitution of this state, as set out and specified in section 2 of article I of the same. This is not a new question, but has been impliedly decided in numerous cases both in this court and the Supreme Court and was expressly decided where it was distinctly raised in Boyle’s License, 8 Pa. Superior Ct. 521. We there said: “The power of the state to regulate the sale of intoxicating liquors, and, in the exercise of that..power, .to authorize the granting of licenses to fit persons under such conditions as the legislature may impose, is too well settled to be open to discussion.” The correctness of this conclusion was affirmed by the unanimous opinion of the Supreme Court upon appeal, 190 Pa. 577, and nothing has occurred since, or is suggested in the argument of appellant’s counsel to create a doubt regarding it.

Finding no error in the record the order is affirmed.


text:
    Newby v. Ford, Appellant.

      Carriers — Common carrier — Delivery—L.oss.
    If a carrier stipulates to deliver articles at a particular town or warehouse, and does so deliver them, he is exonerated from subsequent loss, though they never came into the possession of the consignee or owner.
    Where a carrier contracts to deliver a trunk at a station, and not to the owner at the station, and he delivers the trunk at the baggage room of the station, he is not liable for a subsequent loss of the trunk.
    Argued May 7, 1908.
    Appeal, No. 255, April T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 347, on verdict for plaintiff in case of Dolly Newby v. H. S. Ford.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit against a carrier for loss of a trunk: Before Evans, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for |100. Defendant appealed.

      July 15, 1908:
    Error assigned was in giving binding instructions for plaintiff, and in refusing binding instructions for defendant.

      George H. Quaill, for appellant.

      Geo. J. Campbell, for appellee.
   Opinion by

Morrison, J.,

In this action of assumpsit the plaintiff’s declaration avers a contract to transport and deliver a trunk from Bellevue borough to her at the Union station in Pittsburg. But the plain, uncontradicted evidence establishes the fact that the plaintiff, through her sister, made a contract with the defendant, a common carrier, to transport two trunks from Bellevue borough and deliver them at the Union station in Pittsburg. It was not a contract to deliver to the plaintiff or anyone else, but at the Union station. The defendant proved clearly and concisely by undisputed testimony that he promptly hauled and delivered the trunks in the proper baggage room at the Union station. When the plaintiff called to identify and have her trunks checked the larger one of the two and its contents had been carried away by someone and she never recovered it. The court below gave a binding'instruction that the plaintiff was entitled to recover, and left to the jury only the amount of the verdict which was assessed at $100, and judgment entered thereon.

The counsel for defendant presented four points and under the evidence of both plaintiff and defendant all of these points should have been affirmed, but the learned court refused them all and gave a binding instruction for the plaintiff.

The fourth assignment of error (defendant’s fourth point) is: “The learned court erred in refusing defendant’s fourth point which was as follows: Under all the evidence in this case the verdict of the jury should be for defendant.” Answer: refused. It is unnecessary to discuss the other five assignments as the fourth one will dispose of the case. However, the assignments can all be sustained. The defendant appears from the undisputed testimony to have precisely performed his contract. There was no agreement to deliver the trunks to the plaintiff or anyone else in person at the Union station, but to deliver the trunks at the station, and this was done. There the carrier’s duty ended: Graff v. Bloomer, 9 Pa. 114.

In that case the Supreme Court said: “It is settled that if a carrier stipulates to deliver articles at a particular town or warehouse, and does so deliver them, he is exonerated from subsequent loss, though they never come into the possession of the consignee or owner.” If the contract had been to deliver at the Union station to the plaintiff the law would be otherwise: Eagle v. White, 6 Whart. 505.

The assignments of error are sustained and the judgment is reversed at the costs of the appellee.


text:
    Sefler v. Union Furniture Company, Appellant.

      Landlord, and tenant — Levy—Goods leased to tenant — Wrongful removal of goods after levy.

    In an action by a landlord against a company leasing or selling goods on the installment plan, to recover damages for the wrongful removal of the goods by the defendant after they had been levied on by the plaintiff for rent, a verdict and judgment for the plaintiff will be sustained where the collecting agent of defendant saw the notice of the levy on the leased premises, communicated the fact to the secretary 'and treasurer of the company from whom he took his orders, and the latter told him to go ahead and remove the goods. In such a case it is no defense that the president and the chief executive officer of the defendant had neither authorized nor ratified the action of his subordinates.

      Landlord and tenant — Levy—Notice—Custom.
    Where a constable, acting not in his official capacity, but merely as bailiff of a landlord, posts a notice of a levy on household goods, the law raises no presumption either in favor of or against the regularity of the the notice.
    In an action to recover damages for the wrongful removal of a tenant’s household goods, as against a landlord’s levy for rent, the court will not assume that the levy was invalid because the constable in speaking of a • notice that he had posted, said that it was to run ten days before he could make an appraisement, when in fact the goods were removed about five or six days after the notice was posted.

      July 15, 1908:
    Argued April 28, 1908.
    Appeal, No. 213, April T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co.,, Aug. T., 1904, No. 134, on verdict for plaintiff in case of Lizzie Seiler v. Union. Furniture Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for wrongful removal of goods after a levy. Before Evans, J.'
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $225. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      S. L. Webb, for appellant. —
    The defendant contends that there was no notice of distraint at the time the goods were removed: Snyder v. Boring, 4 Pa. Superior Ct. 196; Esterly Machine Co. v. Spencer, 147 Pa. 466.
    The secretary or bookkeeper, whichever Schmidt was, had no authority to bind the company for a tort or trespass committed by Schaffer, even if he had given directions, as Schaffer says he received, about removing the goods: Leary v. Blanchard, 48 Me. 269; Evarts v. Killingworth Mfg. Co., 20 Conn. 447; Famous Shoe & Clothing Co. v. Eagle Iron Works, 51 Mo. App. 66; Fawcett v. New Haven Organ Co., 47 Conn. 224; First Nat. Bank of Kansas City v. Hogan, 47 Mo. 472; Chestnut Hill & Spring-House Turnpike Co. v. Rutter, 4 S. & R. 6.

      George C. Bradshaw, for appellee.
   Opinion by

Head, J.,

That the plaintiff was the owner of certain premises which she had demised to one Johnston; that he had permitted his rent to become in arrears; that a landlord’s warrant was issued and a levy made upon the personal property in the possession of the tenant on the demised premises; that this levy embraced certain furniture or' household goods which the tenant had purchased or leased from the defendant on what is commonly called the installment plan; that he was still indebted on account thereof; that the collecting agent of the defendant saw the notice of the levy tacked up on the door of the house; that the goods were removed in the wagon and by the employees of the defendant company, from the demised premises to its storage rooms and that the plaintiff thus lost the benefit of her levy, are facts which cannot be said to be in controversy under the evidence in this case.

When summoned to respond in damages for this alleged unlawful removal the defendant took defense, first, on the ground that it had not removed the goods because even if that removal were effected by means of its agents, employees, team and wagon, and subsequently accrued to its advantage, its president and chief executive officer had neither authorized nor ratified the action of his subordinates. The learned court below fairly submitted this question to the jury on evidence that we regard as amply sufficient to sustain their finding that the defendant removed the goods after notice of the levy. It is not denied that Shafer, the collecting agent, knew of the distress. He says he read the notice which, with the list of the property levied on, was affixed to the door. He acquired this knowledge in the exact line of the duty he owed to his principal. Not only so, but he immediately communicated this knowledge to Schmidt, the secretary, treasurer and bookkeeper of the defendant, from whom he generally received his orders what to do, and Schmidt “told me to go and get the goods.” There were many corroborating facts we need not stop to mention. It is sufficient to say that in our judgment the verdict was fully supported by the evidence.

The only other matter of defense urged was that the levy was invalid because of some defect in the notice. We can find no evidence in the record of any such defect as would vitiate the levy. The constable who made it testified that he had made a schedule of the goods and then “I put on a regular levy paper. Q. What was that? A. Why, what any constable has, the regular form. Q. And you made out this list after-wards? A. No, I made this list first and then I took the regular levy and took it up and put it on the door. . . . Q. You did not go back? A. I did not go back because I had to have that up ten days before I could go back. ... I went back in six or seven days after that and the goods were gone.” True, the constable was not engaged in the performance of his official duty, but was acting as the bailiff of the landlord. If on this account, as the appellant contends, the law raises no presumption in favor of the regularity of the notice, it raises none to the contrary and in the face of the evidence quoted, and with no countervailing proof whatever, the court could not have assumed that the levy was invalid and given binding instructions in favor of the defendant. True, the constable, speaking of the notice, says: “It was to run ten days from the time I put it up before I could make the appraisement.” But we have not before us the question whether or not, as against the intervening rights of third parties, such a levy could be held for ten days without taking the steps provided by law looking to an appraisement and sale, because when the constable returned'in “about five or six days” the goods were gone. Upon an examination of the entire record we are all of opinion it discloses no reversible error.

Judgment affirmed.


author: Pice, P. J.,

text:
    Kountz, Appellant, v. Consolidated Ice Company.

      Mechanic’s lien — Scire facias — Judgment—Statute of limitations— Act of June 16, 1832, P. L. 695 — Delay in securing judgment.

    The time that is necessarily required to prosecute an appeal from a judgment on a verdict erroneously directed against the plaintiff in a scire facias upon a mechanic’s lien, is not to be excluded in computing and applying the five years’ limitation provided for in the 24th section of the Act of June 16,1836, P. L. 695.
    The right to a mechanic’s lien is a pure creature of the statute, and one who claims that right must take it upon the conditions, whether strict or liberal, upon which the legislature saw fit to grant it.

      In fixing the period within which the lien must be revived, it is to .be presumed that the legislature took into consideration the delays incident to the prosecution of suits at law, and amongst them the delay incident to an appeal for the correction of error by the trial court.
    Howes v. Dolan, 9 Pa. Superior Ct., distinguished.
    Argued April 28, 1908.
    Appeal, No. 194, April T., 1908, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1901, No. 538,' arresting judgment of case of The Kountz Brothers Company v. The Consolidated Ice Company, owner or reputed owner, Peter W. Herrington and Andrew Henslein, partners as Herrington & Henslein, and Harry R. Worthington.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Young, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in arresting judgment.

      R. B. Petty, for appellant. —
    In no case, however, has it been held that the plaintiff is barred by limitation, when he is prevented from prosecuting his suit by legal necessity or where a disability is imposed by law. On the contrary, it has been repeatedly held that in such cases, the time of such delay is not to be counted against the party: Semmes v. Ins. Co., 80 U. S. 158; Brown v. Hiatts, 82 U. S. 177; Hill v. Biggariot, 7 Phila. 159; Leasure v. Mahoning Twp., 8 Watts, 551; King v. Baker, 29 Pa. 200; Hutchinson v. Bank, 41 Pa. 42; Ebright v. Bank, 1 Watts, 397; Fulton’s Est., 51 Pa. 204; Howes Bros. v. Dolan, 9 Pa. Superior Ct. 586; Bucknor’s Est., 36 Leg. Int. 393; Milne’s App., 99 Pa. 483; Trecothick v. Austin, 4 Mason C. C. 16; Harrisburg Bank v. Forster, 8 Watts, 12; Sands v. Campbell, 31 N. Y. 345; Hutsompiller v. Stover, 12 Gratton, 579; Stanbrough v. McCall, 4 La. Ann. 322; Little v. Price, 1 Md. Ch. 182; Treasurer v. Martin, 50 Ohio, 197; Union Mut. Life Ins. Co. of Maine v. Dice, 14 Fed. Repr. 523; Converse v. Davis, 90 Tex. 462 (39 S. W. Repr. 277).

      J. S. Ferguson, for appellee. —
    The judgment was barred: Hunter v. Lanning, 76 Pa. 25; Fulton’s Est., 51 Pa. 204; Ward v. Patterson, 46 Pa. 372; Hershey v. Shenk, 58 Pa. 382.
    July 15, 1908:
   Opinion by

Pice, P. J.,

This is an appeal by the plaintiff from an order arresting judgment upon verdict in its favor in'a scire facias upon a mechanic’s lien. The question for decision is whether the lien had expired and recovery thereon was barred by reason of the plaintiff’s failure to obtain judgment within five years from the date when scire facias was issued. The fairest way to show how the question arises is to recite the proceedings according to the dates as set forth in the record. They are as follows: November 15, 1900, mechanic’s lien filed; February 20, 1901, sci. fa. issued; May 8,1903, verdict for defendant by direction of the trial court; May 9, 1903, motion for new trial; March 21, 1904, motion refused; April 30, 1904, judgment on verdict; May 3, 1904, appeal to Superior Court, returnable at April Term, 1905; April 13, 1905, appeal argued in Superior Court; July 13, 1905, judgment reversed and new venire awarded; July 24, 1905, record returned and filed in common pleas; August 1, 1905, placed on issue list; December 2, 1907, motion made and refused to abate sci. fa. upon the ground that more than five years had elapsed after it was issued; December 2, 1907, jury sworn and verdict in favor of plaintiff for $459.14; December 4,1907, motion in arrest of judgment; January 23, 1908, judgment arrested.

The lien was filed under the Act of June 16, 1836, P. L. 695, and section 24 of that act, which, it is conceded by appellant’s counsel, applies to the case, provided that the lien of every such debt shall expire at the end of five years from the day • on which such claim shall have been filed unless the same-shall be revived by scire facias in the manner provided by law in the case of judgments;” that is, judgment must be obtained on the scire facias within five years from the issuing of the writ. In Howes v. Dolan, 9 Pa. Superior Ct. 586, we held that where a plaintiff in a scire facias upon a mechanic’s lien has obtained a verdict within five years from the issuing of the writ, but in consequence of the pendency of a rule for a new trial or of a motion in arrest .of judgment is prevented from entering judgment until after the expiration of that period, he is nevertheless entitled to judgment upon the discharge of the rule or motion. This conclusion was reached by holding that the Act of March 23, 1877, P. L. 34, relative to the lien of a verdict, was applicable. But this consideration must be left out of view in the present case. Here the plaintiff obtained neither verdict nor judgment in its favor within five years, and according to the strict letter of the statute the lien expired in February, 1906. But it is claimed that in computing the five years the period of two years and two months, that elapsed between May 8, 1903, when the common pleas directed verdict for the defendant, and July 13, 1905, when the Superior Court reversed the common pleas and awarded a new venire, should not be taken into account. The argument in support of this claim, briefly stated, is that the plaintiff was stayed in the prosecution of his suit by the erroneous action of the trial court in directing verdict for the defendant; that the period of two years and two months was required to obtain correction of that error; that owing to the state of the trial lists it was impossible to bring the case to trial until nearly two years and a half after the judgment was reversed; and that when a plaintiff is prevented from prosecuting his suit by legal necessity or where disability is imposed by law, the time of such delay is not to be counted against him. It is not apparent from the record why so long a time was required to obtain a correction of the error in the first trial; on the contrary, it seems, if the plaintiff had had judgment entered and had taken its appeal immediately after the motion for new trial was refused — March 24, 1904 — the case might have been argued in the appellate court nearly a year before it was. Possibly there is a valid explanation for this apparent delay which it was not deemed necessary by either party to call to our attention. Assuming, therefore, that laches on,the part of the plaintiff in this particular, or in the failure to bring the case to trial within the eight months of the five years period that remained after the judgment was reversed and new trial awarded, has not been affirmatively shown, the question arises, whether the time that is necessarily required to prosecute an appeal from a judgment on a verdict erroneously directed against plaintiff in a scire facias upon a mechanic’s lien is to be excluded in computing and applying the five years’ limitation? In the consideration of that question, if it were an open one, it would be pertinent to notice, first, that the right to a mechanic’s lien is a pure creature of the statute, and one who claims that right must take it upon the conditions, whether strict or liberal, upon which the legislature saw fit to grant it; secondly, that in fixing the period within which the lien must be revived, it is to be presumed that the legislature took into consideration the delays incident to the prosecution of suits at law, and amongst them the delay incident to an appeal for the correction of errors by the trial court. See Meason’s Estate, 4 Watts, 341. If the legislature had intended to make any of these causes of delay ground for suspending the running of the statute, it is reasonable to suppose that it would have specified the conditions under which the suspension of the running of the statute could be claimed. But we need not go into an elaborate discussion of the question or a review of the cases which the learned counsel for the appellant cites as analogous and as sustaining the principle for which he contends, because we are of opinion that the question has been virtually decided in cases involving the consideration of the very statutes applicable to this case. It was held in Ward v. Patterson, 46 Pa. 372, that, when a lien was filed in 1851, the scire facias tried and defeated in 1852, new trial granted on conditions -which were not complied with until 1863 and the case then tried, the lien was gone and the plaintiff could not recover. In Hershey v. Shenk, 58 Pa. 382, the lien was filed November 13, 1856, the scire facias was sued out on November 11, 1861, and was tried on June 4, 1867. Between the last two dates the owner died. It was held by the Supreme Court, reversing the court below, that this fact did not prevent the operation of the rule that a scire facias must be prosecuted to judgment within five years from the date of the issuing of the writ. The strictness of the rule is well shown by the case of Hunter v. Lanning, 76 Pa. 25. There the proceedings were as follows: November 14, 1865, lien filed, March 16, 1866, scire facias issued; April 16, 1870, verdict for plaintiff and new trial granted; October 2, 1871, plea that five years had elapsed since the filing of the lien and issuing of the scire facias, replication that continuances were obtained by the defendants both before and after the granting of^the new trial; and that the delay in the prosecution of the claim was occasioned by their acts and not by default of the plaintiff. On demurrer to the replication that judgment had not been obtained within five years from the issuing of the writ it was held that the lien was gone, and judgment was entered for the defendants. This was affirmed, the Supreme Court saying, as to the excuses set up for the delay: “The proceeding here is against the building, and being in rem the lien must appear by the record and not by outside acts of estoppel.” In Sweeny v. McGittigan, 20 Pa. 319, as pointed out in Howes v. Dolan, 9 Pa. Superior Ct. 586, the question considered in the opinion of the court below and in the opinion of the Supreme Court, was whether the period of five years was to be computed from the date of the filing of the lien, or of the issuing of the writ. It cannot be regarded as sustaining appellant’s contention in the present case. The distinction between this case and Howes v. Dolan has already been stated. Under the decisions in cases arising under the statutes applicable here we think the court could not have held otherwise than that the lien had expired and the right to recover thereon was barred.

The judgment is affirmed.