text:
    466 A.2d 711
    Commonwealth v. Cryor, Appellant.

      Argued June 2, 1983.
    Irene H. Cotton, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    466 A.2d 712
    Commonwealth v. Duncan, Appellant.
    Submitted March 23, 1983.
    Charles A. Duncan, appellant, in propria persona; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    466 A.2d 712
    Commonwealth v. Fitzgerald, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted June 9, 1983.

      Mitchell A. Kaufman, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., SPAETH and HESTER, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    466 A.2d 712
    Commonwealth v. Freeman, Appellant.
    Submitted February 17, 1983.
    Leon Wilbert Tucker, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   Order affirmed.


text:
    466 A.2d 713
    Commonwealth v. Gardner, Appellant.
    Submitted April 5, 1983.
    Joseph T. Quinn, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    466 A.2d 713
    Commonwealth v. Gray, Appellant.
    Submitted April 6, 1983.
    Barnaby Wittels, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   Affirmed.


text:
    466 A.2d 713
    Commonwealth v. Grimes, Appellant.
    Submitted May 26, 1983.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    466 A.2d 713
    Commonwealth v. Haynes, Appellant.
    Submitted April 7, 1983.
    George Edward Lepley, Jr., Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    466 A.2d 714
    Commonwealth v. Heller, Appellant.
    Submitted April 28, 1983.
    Michael F. Flannery, for appellant; George C. Ya-tron, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 714
    Commonwealth v. Hunter, Appellant.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.
    Argued March 8, 1983.
    Peter T. Campana, for appellant; Robert Henry Slivinski, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WICKERSHAM and MONTEM-URO, JJ.
   Order affirmed.


text:
    466 A.2d 714
    Commonwealth v. Jackson, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted April 28, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 714
    Commonwealth v. La Marra, Appellant.
    Petition for Allowance of Appeal Denied Feb. 9, 1984.
    Submitted December 6, 1982.
    Fred Mark Feder, for appellant; David E. Fritchey, Assistant District Attorney, for Commonwealth, appellee..
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 643
    Commonwealth v. Long, Appellant.
    Reargument Denied Nov. 10, 1983.
    Petition for Allowance of Appeal Denied April 6, 1984.
    Submitted April 28, 1983.
    Burton A. Rose, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 715
    Commonwealth v. Mihalik. Appeal of Commonwealth of Pennsylvania, Department of Revenue.
    Argued May 19, 1982.
    Christos A. Katsaounis, for appellant; John W. Taylor, submitted a brief on behalf of participating party.
    Before HESTER, McEWEN and JOHNSON, JJ.
   The order of the learned Cambria County Common Pleas Court Judge Eugene A. Creany is affirmed.


text:
    466 A.2d 715
    Commonwealth v. Palko, Appellant.
    Submitted January 20, 1983.
    Jonathan Blum, Assistant Public Defender, for appellant; Robert J. Gilliespie, Jr., District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgments of sentence are affirmed.


text:
    466 A.2d 715
    Commonwealth v. Simon, Appellant.
    Petition for Allowance of Appeal Denied Sept. 25, 1984.
    Submitted April 6, 1983.
    Hugh Curtis Clark, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.

SPAETH, J., filed a memorandum concurring statement.


text:
    466 A.2d 715
    Commonwealth v. Sutton, Appellant.
    Submitted January 18, 1983.
    Robert Scandone, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 716
    Hill, Appellant v. Hill.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Argued May 25, 1983.
    Paul V. Mahoney, for appellant; Carl W. Brueck, Jr., for appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Appeal quashed.


text:
    466 A.2d 716
    Johnson v. Johnson, Appellant.
    Argued September 14, 1982.
    William Johnson, appellant, in propria persona; Henry 0. Heiser III, for appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    467 A.2d 394
    SEPTA, Appellant v. PSTC et al.
    Reargument Denied Nov. 18, 1983.
    Petition for Allowance of Appeal Denied Mar. 15, 1984.

      Argued May 3, 1983.
    Richard L. Bazelon, for appellant; David Gordon Blake, for appellees.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of the lower court is affirmed.


text:
    466 A.2d 716
    Young, et al. v. Miller, et al., Appellants.
    Submitted March 23, 1983.
    Kenneth Lee Rotz, for appellants; David Kostka James, for appellees.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    September 16, 1983.
    466 A.2d 717
    Amer. Univ. Ins. Co. v. Sirianni, et al. Appeal of City of Philadelphia. Amer. Univ. Ins. Co. v. Nugent Brothers, et al. Appeal of Paul Rimmeir.
    December 6, 1982.
    Sarah C. Makin, Assistant City Solicitor, for City of Phila., appellant (at No. 568) and appellee (at No. 1006); Richard A. Kraemer, for Rimmeir, for appellant (at No. 1006) and appellee (at No. 568); Francis T. McDevitt, for Amer. Univ. Ins. Co., appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order and judgment affirmed.

SPAETH, J., did not participate in the decision of this case.


text:
    466 A.2d 717
    Commonwealth v. Asbury, Appellant.
    Petition for Allowance of Appeal Denied Sept. 12, 1984.
    Argued March 31, 1983.
    Jay Stuart Nedell, submitted a brief on behalf of appellant; Shad Connelly, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

BROSKY, J., concurred in the result.


text:
    466 A.2d 718
    Commonwealth v. Barnhart, Appellant.

      Submitted March 29, 1983.
    Charles H. Barnhart, appellant, in propria persona; John Carter Brydon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Appeal dismissed as moot.


text:
    466 A.2d 718
    Commonwealth v. Boyd, Appellant.
    Submitted March 17, 1983.
    Thomas Edward Seus, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J„ ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    466 A.2d 718
    Commonwealth v. Bull, Appellant.
    Argued May 3, 1983.
    Frank J. Marcone, for appellant; Helen Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTGOMERY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 718
    Commonwealth v. Burgos, Appellant.
    Submitted July 28, 1983.
    Ronald A. Kovler, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 719
    Commonwealth, Appellant v. Cutter.
    Submitted March 29, 1983.
    John M. Dawson, Assistant District Attorney, for Commonwealth, appellant; Stephen Toole, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    466 A.2d 719
    Commonwealth v. Gyle, Appellant.
    Submitted July 26, 1983.
    Clement E. Kisailus, for appellant; Robert J. Gillespie, Jr., District Attorney, Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 719
    Commonwealth v. Holcombe, Appellant.
    Submitted July 26, 1983.
    Peter T. Campana, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    466 A.2d 719
    Commonwealth v. Montague, Appellant.

      Submitted May 3, 1983.
    Manuel Grife, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTGOMERY and HOFFMAN, JJ.
   Order affirmed.


text:
    466 A.2d 720
    Commonwealth v. Noble, Appellant.
    Submitted June 22, 1983.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    466 A.2d 720
    Commonwealth v. Peoples, Appellant.
    Argued May 11, 1983.
    Vincent J. Snyder, for appellant; Michael L. Turner, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 720
    Commonwealth v. Thompson, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted October 26, 1982.
    Arthur Henry James, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 720
    Commonwealth v. Waters, Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.

      Submitted May 12, 1983.
    Lee Mandell, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 721
    Commonwealth v. Welch, Appellant.
    Submitted October 27, 1982.
    Barry S. Yaches, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 721
    Commonwealth v. Wells, Appellant.
    Submitted June 8, 1983.
    John H. Cor-bett, Jr., Public Defender, for appellant; Kemal A. Mericli, Assistant District Attorney, for Commonwealth, appellee.

      Before CERCONE, P.J., SPAETH and HESTER, JJ.
   Remanded with directions. Jurisdiction is not retained.


text:
    September 23, 1983.
    466 A.2d 721
    Commonwealth v. Crawford, Appellant.
    Submitted May 18, 1983.
    David Samuel Dessen, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Order affirmed.


text:
    466 A.2d 721
    Commonwealth, Appellant v. Gaither.
    Submitted June 22, 1983.
    Charles M. Guthrie, Jr., Assistant District Attorney, for Commonwealth, appellant; Charlene Gaither, appellee, in propria persona.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order of October 13,1981 dismissing the cáse is affirmed.


text:
    466 A.2d 722
    Commonwealth v. Hanly, Jr., Appellant.
    Petition for Allowance of Appeal Denied Feb. 2, 1984.
    Submitted July 26, 1983.
    Dyran Michael Emuryan, for appellant; David E. Fritchey, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 722
    Commonwealth v. Holmes, Appellant.
    Petition for Allowance of Appeal Denied Feb. 2, 1984.
    Argued April 27, 1983.
    John H. Corbett, Jr., Public Defender, for appellant; Dara A. Decourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgments of sentence affirmed.


text:
    466 A.2d 722
    Commonwealth v. Kimmel, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted April 13, 1983.
    Kevin John Kelleher, for appellant; Anthony S. Blasco, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Order affirmed.


text:
    466 A.2d 723
    Commonwealth v. Koons, Appellant.
    Submitted March 22, 1983.
    Jeffrey M. Cook, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    466 A.2d 723
    Commonwealth v. Lee, Appellant.
    Submitted June 22, 1983.
    Robert F. Pappano, Assistant Public Defender, for appellant; Dennis C. McAndrews, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    466 A.2d 723
    Commonwealth v. Noel, Appellant.
    Submitted April 26, 1983.
    Paul W. Wheeler, for appellant; D. Long, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 723
    Commonwealth, Appellant v. Ondesko.

      Submitted March 8, 1983.
    Thompson J. McCullough, Assistant District Attorney, for Commonwealth, appellant; John D. Flinchbaugh, Assistant Public Defender, for appellee.
    Before CERCONE, P.J., WICKERSHAM and MONTEM-URO, JJ.
   The order of the lower court is affirmed.

WICKERSHAM, J., filed a memorandum dissenting opinion.


text:
    466 A.2d 724
    Commonwealth v. Ostrum, Appellant.
    Submitted July 26, 1983.
    Howard P. Rovner, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence is affirmed.


text:
    466 A.2d 724
    Commonwealth v. Parks, Appellant.

      Submitted April 13, 1983.
    Anne L. Wall, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 724
    Commonwealth v. Porter, Appellant.
    Submitted July 27, 1983.
    Timothy A. Crawford, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence is affirmed.


text:
    466 A.2d 725
    Commonwealth v. Ramsey, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted April 26, 1983.

      John H. Corbett, Jr., Public Defender, for appellant; Dara A. Decourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Affirmed.


text:
    467 A.2d 643
    Commonwealth v. Starner, Appellant.
    Reargument Denied Nov. 18, 1983.
    Petition for Allowance of Appeal Denied April 3, 1984.
    Argued April 23, 1982.
    Harry C.J. Blair, for appellant; Mark S. Refowich, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.

BROSKY, J., filed a memorandum concurring and dissenting opinion.


text:
    466 A.2d 725
    Commonwealth v. Visconto, Appellant.

      Submitted June 1, 1983.
    Jay Harris, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 725
    Commonwealth v. Zook, Appellant.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.
    Submitted July 27, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 725
    Felmlee et al., Appellants v. Lockett et al.
    Submitted March 22, 1983.
    Robert B. Brugler, for appellant; William A. Helm, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Order affirmed.

HOFFMAN, J., filed a memorandum dissenting statement.


text:
    September 30, 1983.
    466 A.2d 726
    Ansell, Appellant v. Ansell.
    Argued May 11, 1983.
    John F. Goryl, for appellant; Roger M. Simon, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    466 A.2d 726
    Pauline Baker, Appellant v. Donald Baker. Fred Baker, Appellant v. Donald Baker.
    Submitted March 31, 1983.
    Charles J. Duke, for appellants; Robert L. Saunders, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   The judgment of the lower court is hereby affirmed.


text:
    466 A.2d 726
    Byrne, Appellants v. Jackson.
    Argued April 20, 1983.
    Roger Joseph Harrington, for appellants; Wendella P. Pox, submitted a brief on behalf of appellees.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment affirmed.


text:
    466 A.2d 727
    Commonwealth v. Baker, Appellant.
    Submitted July 28, 1983.
    Helen McCaffrey, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 727
    Commonwealth v. Durnell, Appellant.
    Submitted June 21, 1983.
    Joseph D. Branca, Assistant Public Defender, for appellant; Dennis C. McAndrews, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    466 A.2d 727
    Commonwealth v. Fronina, Jr., Appellant.
    Petition for Allowance of Appeal Granted Feb. 3, 1984.
    Submitted July 28, 1983.
    William F. Ochs, Jr., Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 727
    Commonwealth v. Gonzales, Appellant.
    Submitted May 4, 1983.
    Arthur Henry James, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 728
    Commonwealth v. Johnson, a/k/a Blow, Appellant.
    Submitted March 24, 1983.
    John M. Glace, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    466 A.2d 728
    Commonwealth v. Lewis, Appellant.

      Submitted May 25, 1983.
    John A. Halley, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH,. ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    466 A.2d 728
    Commonwealth v. Link, Appellant.
    Argued March 30, 1983.
    Melinda E. Martin, for appellant; Robert L. Eberhardt, Deputy District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    466 A.2d 728
    Commonwealth v. Menyweather, Appellant.
    Submitted May 18, 1983.
    Harry Siegel, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Order affirmed.

BECK, J., concurred in the result.


text:
    466 A.2d 729
    Commonwealth v. O’Brien, Appellant.
    Submitted April 28, 1983.
    Angelo P. Arduini, Assistant Public Defender, for appellant; Michael J. Veshecco, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed.

ROWLEY, J., concurred in the result.


text:
    472 A.2d 1166
    Commonwealth v. Smith, Appellant.
    Argued May 11, 1981.
    Hubert D. Yollin, for appellant; Joseph J. Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 729
    Commonwealth v. Spiker, Appellant.
    Submitted March 23, 1982.
    Victor Dell’Alba, for appellant; Wanda D. Neuhaus, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, .ROWLEY and WATKINS, . JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 729
    Commonwealth v. Williams, Appellant.
    Submitted July 28, 1983.
    Ronold John Karasek, for appellant; Michael Vedomsky, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.

      Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 730
    Eastern Airlines et al., Appellants v. Raynes et al.
    Argued December 7, 1982.
    Joseph F. Van Horn, Jr., for appellants; Roger Huggins, for appel-lees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    466 A.2d 730
    Homiller, Appellant v. Homiller.
    Argued May 12, 1983.
    Morris Gerber, for appellant; Jean B. Green, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    466 A.2d 730
    Muller v. Glynn, A & D Rentals, Appellants.
    Argued June 17, 1983.
    Alexander Ogle, for appellants; Daniel W. Rullo, for appellees.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   The order of the court en banc composed of the distinguished President Judge Charles H. Coffroth and the learned Judge Norman A. Shaulis is affirmed.


text:
    466 A.2d 730
    Saez, Appellant v. Phila. Elec. Co.
    Submitted February 17, 1983.
    Larry E. Coben, for appellant; John J. Tinaglia, for appellee.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   Judgment affirmed.


author: Henderson, J.,

text:
    Commonwealth, Appellant, v. Arow.

      Constitutional law — Title of statute — Food law — Act of June 26, 1895;, P. L. 317. ' '
    The Act of June 26, 1895, P. L. 317, entitled “An Act to provide against the adulteration, of food, and providing for .the enforcement thereof,” is not defective in title in that its title does not embrace the subject of the sale of adulterated food.
    Under the act of June 26, 1895, it is not necessary for the commonwealth to plead that the article sold was not within the proviso of the third section of the act.
    On an indictment under the act of June 26, 1895, the question of the validity of the title to office of the “Dairy and Food Commissioner,” is immaterial.
    An objection to such a prosecution that it was instituted by an agent of the' Department of Agriculture is without merit.
    Argued March 6, 1906.
    Appeal, No. 115, April T., 1906, by plaintiff, from judgment of Q. S. Lawrence Co., Dec. T., 1905, No. 35, quashing an indictment in case of Commonwealth v. W. H. Arow.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment under the Food Act of June 26, 1895, P. L. 317. Before Porter, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      October 5, 1906:

      J. Norman Martin, with him J. V. Cunningham, district attorney, for appellant.
    — The title of the act is sufficient: Com. v. Curry, 4 Pa. Superior Ct. 356; Com. v. Jones, 4 Pa. Superior Ct. 362; Com. v. Hufnal, 4 Pa. Superior Ct. 301; Com. v. Moore, 2 Pa. Superior Ct. 162; Taggart v. Com., 102 Pa. 354; Com. v. Charity Hospital, 198 Pa. 270; Allegheny County Home’s App., 77 Pa. 77 ; Com. v. Houseman, 11 Pa. Dist. Rep. 480; People v. Compagnie Generale Transatlantique, 107 U. S. 59 (2 Sup. Ct. Repr. 87).

      O. M. Alcens, for appellee.
    — The title is insufficient: Com. v. Kevin, 202 Pa. 23; Phœnixville Road, 109 Pa. 44; Mt. Joy Borough v. Lancaster, etc., Turnpike Co., 182 Pa. 581; Dorsey’s App., 72 Pa. 192; Ridge Ave. Pass. Ry. Co. v. Phila., 124 Pa. 219 ; Pierie v. Phila., 139 Pa. 573; Quinn v. Cumberland County, 162 Pa. 55; Com. v. Severn, 164 Pa. 462; Payne v. Coudersport Borough School District, 168 Pa. 386; Com. v. Frantz, 135 Pa. 389; Com. v. Hufnal, 185 Pa. 376.
    The act is a penal act creating an arbitrary and artificial crime, without reference to criminal intent, and must receive a strict construction with due regard to the popular comprehension : Commonwealth v. Kebort, 212 Pa. 289; Com. v. Curry, 4 Pa. Superior Ct. 356; Com. v. Hufnal, 185 Pa. 376.
   Opinion by

Henderson, J.,

The principal question raised on this appeal was considered in Commonwealth v. Curry, 4 Pa. Superior Ct. 356, and was impliedly passed upon in Commonwealth v. Kevin, 202 Pa. 23, in each of which cases the indictment under the Act of June 26, 1895, P. L. 317, for the sale of adulterated food, was sustained. In the latter case the object of the statute was said to be “ to protect the public health by securing pure food and to prevent fraud and deception in the manufacture and sale of adulterated articles of food.” It was further declared in the same opinion that “ the purpose of the legislature in the passage of the act is most commendable and the statute should receive a construction by the courts that will fully and effectively accomplish the object of its enactment.” It is now objected that the title of the statute only includes the act of adulteration and that it is defective in not embracing the subject of sale, and the indictment was quashed in the court below for that reason. The title of the act is “ An act to provide against the adulteration of food, and providing for the enforcement thereof.” To “ provide against ” is to anticipate and take precautionary measures against harm or danger. The injury to be prevented is that arising from the use of adulterated food. Adulteration has reference not only to the act of contamination, but to the condition of the food as a result of such debasement. In view of the object sought we have no doubt that the words were so used by the legislature. They have these well-known meanings and should be so interpreted in determining the validity of a statute so beneficent in its objects. It is an act establishing precautionary measures against food adulteration and applies not only to the deterioration of food products, but also to their sale. A very large proportion of the food supply consumed by the people of the commonwealth is manufactured or compounded beyond the boundaries of the state, and a statute which prohibits the act of adulteration but permits the sale of adulterated goods would furnish little protection to the citizens of the commonwealth. Such legislation was not intended by the lawmakers and the scope of the act is not so limited by the language of the title.' One of the most obvious and effective methods of guarding against the adulteration of food is to prohibit its sale, and it seems manifest that the title of an act to provide against such adulteration would attract the attention of dealers as well as manufacturers and lead to an examination of the provisions of the statute. The adulteration of food is the subject of the act and the title is sufficiently comprehensive to cover all of its prohibitive and penal provisions. It is legislation aimed at the traffic in impure and unwholesome food and it would be a refinement of strict construction to hold that the meaning of the language of the title is too restricted to cover the act of sale, from which the principal harm arises. The case of Commonwealth v. Kebort, 212 Pa. 289, does not sustain the argument of the appellee. All that was there decided was that drink is not included in the term “ food ” and that, therefore, so much of the act as applies to the sale of liquors is not suggested in the title.

The learned judge of the court below seems not to have been impressed by the other grounds presented for quashing the indictment. The objection that the indictment sets forth the methods by which the adulteration was accomplished, and its effect, is without merit. The third section of the act defines various methods and conditions of adulteration, but it will be readily seen that a.substance might be added to the food which would both “ injuriously affect its quality ” and be “ poisonous or injurious to health.”

It was not necessary for the commonwealth to plead that the article sold was not within the proviso of the third section.' This proviso only relates to mixtures or compounds not injurious to health, whereas the indictment charges that the added substances were poisonous and injurious to health. It was, moreover, a matter of defense to show that the thing sold was within the exemption of the proviso.

It does not appear in the indictment that the article sold by the defendant was obtained under the provisions of the fourth section of the statute, requiring a vendor to furnish to the purchaser a sample of the article of food for analysis. The indictment avers, in proper form, a sale by the defendant.

A considerable part of the argument of the appellee is devoted to a discussion of the validity of the title to office of the “Dairy and Food Commissioner.” We do not consider this relevant to the question presented on the appeal. The act defines the offense and prescribes the penalty. The appropriation of the penalty by the legislature is independent of the offense and is a matter of legislative discretion. The penalties are directed to be paid to the dairy and food commissioner or his agent and to be by him paid into the state treasury. The incapacity of this officer to act does not effect a remission of the offense. The penalty is still payable to the commonwealth.

The objection that the prosecution was instituted by an agent of the department of agriculture is without merit. Whether an agent of that department or not, the prosecutor had a right to institute the proceeding for a criminal violation of law. We are unable to agree with the conclusion of the learned judge of the court of quarter sessions in holding the indictment invalid.

The judgment is therefore reversed and a procedendo awarded.


text:
    Wright v. Baltimore & Ohio Railroad, Appellant.

      Railroads — Carriers—Cars—Discrimination—Coal.
    All shippers similarly situated must be treated alike by a railroad company at the same place in the distribution of cars. An unusual volume of business may make it impracticable for the railroad company to provide an adequate supply, but the duty remains to distribute whatever cars may be available among those of the same class in due proportion. Any inequality of charge or facilities for transportation must be justified' by a difference of circumstances and situation.
    A transportation company may not discriminate in favor of particular persons or companies because they have been for a longer time engaged in business than other companies.
    A person who is not the owner or lessee of a coal mine, but has only a contract to purchase and sell coal, has a standing to demand cars from a railroad company on which his coal may be loaded from wagons, where it appears that owners or lessees of coal mines have been furnished cars for use in the same way.
    A Pennsylvania court has jurisdiction over a railroad company sued for discrimination in supplying coal cars, where it appears that the plaintiff's relation to the coal terminated at a point within the limits of the state of Pennsylvania; and it is immaterial that the intentions of plaintiff may have been that the coal should be shipped from that point to a point without the state.
    Argued May 9, 1906.
    Appeal, No. 61, April T., 1906, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1903, No. 295, on verdict for plaintiff in case of John M. Wright v. Baltimore & Ohio Railroad.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover damages for refusal to furnish coal cars. Before Koozer, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [If, however, you go further and determine that under the evidence of Smyth and Wright it was a shipment only within Pennsylvania, that it was, as Wright said, to be shipped to Salisbury Junction alone, that would leave it within our jurisdiction, and you will go further in the case. There is no joint jurisdiction between the United States and this state.
    We then submit to you the question whether under the testimony this was a shipment to Salisbury Junction as testified to by Smyth and Wright, or whether the evidence satisfies you that it was intended as a shipment and sale outside of the confines of Pennsylvania.] [1]
    [We say to you that we cannot agree that the fact that Mr. Wright then first offered to ship coal and had never shipped before and that Mr. Balliott and others had shipped before, is one of the circumstances that would warrant the company to give cars to one and refuse them to the other.] [2]
    [I will permit you to determine the discrimination, if there was any, in favor of those other loaders, by wagons, who got their cars upon application from the railroad company in the manner plaintiff says he tried to get them and failed. If the defendant furnished cars to the others and refused them to plaintiff, that would be an unjust discrimination in the view of the court. The railroad company had no right to make such a discrimination, and if made, the company would be liable under this act of assembly which I have read in your hearing.] [3]
    [Whilst the. railroad company may make its allotment to give to each operation so many cars, that allotment is not binding upon the court and jury; it is a question whether the allotment was itself upon a just basis. If we have jurisdiction of this case, under what we said to you some time ago, the plaintiff was entitled to the percentage of cars received by others of the same class.] [4]
    Plaintiff presented these points.
    2. And inasmuch as the damages claimed in this suit are not for discrimination in rates, but for an undue and unreasonable discrimination against plaintiff in not furnishing any cars, while said defendant company did furnish cars to other persons on said branch railroad, who during the same period engaged in buying, selling and loading coal, then plaintiff, under the act of June 4, 1883, is entitled to recover in this action treble the amount of injury suffered. Answer: The first sentence of this point we think not relevant to this case, and refuse to affirm it as applicable to this case. The second sentence of the point we affirm, if the other persons referred to were loading coal under like circumstances with the plaintiff, as we have heretofore explained what constitutes like or unlike circumstances. [5]
    4. The mere fact that plaintiff had not been a coal operator or shipper prior to January, 1903, is not sufficient cause for defendant to discriminate against him in favor of those who were shippers on this branch railroad prior to that date. Answer : Affirmed. [6]
    8. The measure of single damages in this case is the difference of the selling price of the coal for the shipment of which he should have been furnished facilities and the cost of said coal to Wright, loaded at East Salisbury and Boynton. Any verdict in this case must be for three times the amount of single damages. Answer: That act of assembly, 1883, provided that upon its violation the offending company or common carrier shall be liable to the party injured in damages treble the amount of injury suffered. The plaintiff, under the evidence in this case, was not entitled to as many cars as demanded, but, if any, to a pro rata share with other persons or companies who were operating under like circumstances, and the measure of the amount of injury, if any suffered, therefore, would be the difference between the price at which he had contracted to sell the coal, and for the shipment of which he should have been furnished such amount of facilities as we have just stated, and what would have been the cost to him of furnishing that coal loaded on the- cars at East Salisbury and Boynton. And if such injury is found, the verdict must be three times the amount of the injury suffered. [7]
    Defendant presented these points :
    1. That this action is founded upon the act of June 4, 1883, which provides as follows: “Nor shall any such railroad company or common carrier make any undue or unreasonable discrimination between individuals, or between individuals and transportation companies, or the furnishing of facilities .of transportation.”
    These words mean a discrimination that is “ not right, not legal, unlawful, unjust.” (Worcester’s Dictionary.) “Improper, illegal.” (Standard Dictionary.) And the plaintiff must, therefore, prove such a discrimination as between him and persons who were shippers on the road, of the different companies. Answer: Affirmed as to all persons shipping or offering to ship like goods with the company. [8]
    4. That the company had a right to fix a point on the Salisbury railroad from which shipments should be made by team track loaders, and it was not in the power of the plaintiff to insist on coal being loaded at any other point on the said road of the defendant company. Answer ; The company had a right to fix a point or points on their road from which such shipments can be made, but such points must be reasonably convenient to shippers. As the order fixing such points seems to have been made on January 23,1903, it cannot affect this case of an earlier date, or at an earlier date than you shall find the order was made. They can fix points at which shippers may load, but they must be located reasonably and consistently with the interests of shippers. But it seems to me that it is not very important in the case, if you find that these points were fixed as late as January.23. [9]
    5. That as Wright, the plaintiff, was not the owner or lessee of a mine, but according to his own testimony had only a contract to purchase and sell coal, he does not come within the class entitled to demand cars, and therefore there could be no undue, illegal or improper discrimination against him, and the verdict must be for the defendant. Answer : We refuse to so instruct you. [10]
    6. That even if the plaintiff was entitled to get cars, before he can recover in this case he must have proven to the satisfaction of the jury that the defendant company unduly and illegally discriminated between him and persons in the same class, and as he has failed to show that he was discriminated against in favor of persons in the same class there can be no recovery. Answer: We refuse that. [11]
    7. That if the jury find that owing to the increased demand for bituminous coal the defendant company had largely increased traffic imposed upon it at the time specified in the plaintiff’s statement, to wit: from January 6, 1903, to February 20, 1903, and owing to the scarcity of ears the company was unable to furnish him with cars, then there can be no recovery by the plaintiff. Answer: As the evidence shows the number of cars supplied shippers in that region within the period named, we refuse the point as stated. The mere fact that there was a great demand and cars were scarce had only the effect of reducing the number of cars that plaintiff or anybody else in the neighborhood had a right to expect; the proof also entitled all to a percentage of the entire amount that went into the region. [12].
    October 5, 1906:
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1-12)'above instructions, quoting them

      W- E. Koontz, with him J. G. Ogle, for appellant,
    cited: Hoover v. Penna. R. R. Co., 156 Pa. 220; Cincinnati, etc., Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184 (16 Sup. Ct. Repr. 700); Post v. R. R. Co., 108 Pa. 587; Harp v. Ry. Co., 118 Fed. Repr. 169.

      Ernest O. Koozer, with him Valentine Hay and Albert L. G. Hay, for appellee,
    cited: Hannibal, etc., R. R. Co. v. Swift, 79 U. S. 262; Ohio & Mississippi Ry. Co. v. McCarthy, 96 U. S. 258; Harp v. Choctaw, etc., Ry. Co., 118 Fed. Repr. 169 ; Ayres v. Chicago, etc., Ry. Co., 71 Wis. 372 (37 N. W. Repr. 432).
   Opinion by

Henderson, J.,

The plaintiff’s action was brought under the Act of June 4, 1883, P. L. 72, to recover damages for discrimination against him in transportation facilities. The plaintiff alleged discrimination in favor of numerous companies, firms and individuals engaged in shipping coal, some of whom loaded on the defendant’s cars through tipples, while others were known as,“team track loaders ” who delivered from wagons at platforms, to which latter class the plaintiff belonged. The plaintiff’s claim covered discriminations in favor of both classes of shippers, but at the trial his right of recovery was limited to discriminations in favor of other loaders from wagons, the court being of the opinion that shippers who loaded from tipples were not “ upon like conditions, under similar circumstances ” with those who loaded from wagons. There was evidence showing that the defendant furnished cars to several team track loaders at the places where and during the time when the plaintiff sought to ship coal; that the manner of shipment by those who so received cars was the same as that adopted by the plaintiff; that frequent requests were made to the company for cars by the plaintiff; that cars were promised but never furnished; that a large number of cars were provided by the defendant for other shippers and that the defendant neglected and finally refused to furnish any to the plaintiff. This evidence raised a question of fact for the determination of the jury.

The general obligation of a railroad company to furnish the necessary cars to carry goods offered for transportation grows out of the public nature of its business and does not depend upon contract. This duty does not involve the necessity of providing transportation at all times upon demand where an unusual increase of business mates it unreasonable that a transportation company should be provided with exceptional capacity to meet such demand; but whatever may be the ability of the company in this respect the constitution and statute forbid that there be any undue or unreasonable discrimination between individuals or between individuals and companies in the furnishing of facilities for transportation. All shippers similarly situated are to be treated alike at the same place in obtaining cars. An unusual volume of business may make it impracticable for the railroad company to provide an adequate supply, but the duty remains to distribute whatever cars may be available among those of the same class in due proportion: Borda v. R. R. Co., 141 Pa. 484; Hannibal, etc., R. R. Co. v. Swift, 79 U. S. 262; Ogdensburg & Lake Champlain R. R. Co. v. Pratt, 89 U. S. 123; Baxendale v. Ry. Co., 94 E. C. L. 336 ; Messenger v. R. R. Co., 37 N. J. L. 531; Great Western Ry. Co. v. Hawkins, 18 Mich. 427; U. S. ex rel. Kingwood Coal Co. v. W. Va. Northern R. R. Co., 125 Fed. Repr. 252; Hoover v. Penna. R. R. Co., 156 Pa. 220. Any inequality of charge or facilities for transportation must be justified by a difference of circumstances and situation. That the plaintiff was situated similarly to several of the dealers to whom the defendant furnished cars is clearly shown by the evidence. The appellant objects that the plaintiff was not the owner of a coal mine and that he was not “rated,” but others who received cars were subject to the same objection; nor was it material that the shippers did not own mines. They furnished coal at loading places at which such freight was regularly received by the defendant. It was not a matter material to the public or the defendant, whether the plaintiff obtained his coal from a mine owned by himself or from mines owned by other persons. According to the evidence, he was the owner of coal which he delivered at the platform at which the defendant received such merchandise, and he was entitled to like consideration with others engaged in the same business in the same manner. A large part of the commerce of the country is carried on by dealers who are not the producers of the goods in which they deal. New ventures in trade are entered upon daily by men and companies not theretofore so engaged. A rule which would permit a transportation company to discriminate in favor of particular persons or companies because they had been for a longer time engaged in business would have a most pernicious effect on commerce and is inconsistent with the element of fairness which the law seeks to establish. Moreover, the evidence shows that the plaintiff had an interest in one of the mines from which he obtained coal and that cars were furnished for other shippers who were not owners of mines. The plaintiff notified the defendant that he was prepared to ship 200 tons of coal a day. Whether he was “ rated ” by the company was a matter for it and not for the plaintiff. He took all the steps reasonably necessary to bring to the notice of the company the requirement as to transportation necessary for his business. It is doubtless true, as claimed by the defendant, that there was a demand for cars beyond the capacity of the company, but it is admitted that many cars were furnished to shippers in the district where the plaintiff was and a large number to persons and companies shipping at the sidings where the plaintiff delivered his coal. If the refusal had been to all of the dealers loading from wagons, because of delay in loading the cars and because of the superior facilities of the tipple loaders, one of the questions raised by the appellant would have been involved in the case; but no such discrimination was made by the defendant, nor was any objection made against the method of loading or that the persons delivering the coal were not the owners of the mines from which the coal was brought. The case of Harp v. Choctaw, etc., Ry. Co., 118 Fed. Repr. 169, is not applicable to the case under consideration. The objection there was to provide cars to be loaded from wagons on the commercial tracks in the company’s yards at a time when the business of the road was unusually heavy, necessitating the constant use of the tracks, and when its supply of cars was insufficient to handle its traffic. The supplying of cars to coal companies on their private tracks to be loaded by tipple was held not to be an unreasonable discrimination, because of the difference in the situation of the shippers. The refusal to provide cars was distinctly stated and affected the class of shippers loading from wagons. In the present case no such objection was made nor was there a refusal to furnish cars to individuals or companies loading from wagons. On the contrary, sevéral of such shippers were accommodated with cars. ' If the company had justifiable reasons for refusing to carry the plaintiff’s property it should have insisted upon such grounds in order to avoid responsibilit}’-. After having promised to provide cars, as the plaintiff claims, it is too late when litigation has arisen for the defendant to change his position and justify his conduct on other grounds : Hannibal, etc., R. R. Co. v. Swift, 79 U. S. 262; Ohio & Miss. R. R. Co. v. McCarthy, 96 U. S. 258.

We have no doubt that the business of the plaintiff brought him within the terms of the statute. Discrimination between individuals is forbidden as well as between individuals and transportation companies, and the plaintiff’s evidence very clearly shows discrimination against him. It is said that the plaintiff was not a “shipper,” but the statute was not enacted in behalf of regular shippers or those who had been shippers before that. A man has a right to begin to ship goods and it is the policy of the law to encourage the legitimate development- of commerce.

No question of interstate commerce arises if the testimony of the plaintiff is believed. According to his evidence Salisbury Junction was the point of delivery. The court instructed the jury that if the contract between the plaintiff and Smyth was for the shipment of coal beyond the limits of Pennsylvania that would end the case; but that if the shipment was to a point only within Pennsylvania, the case was within the jurisdiction of the court. The verdict shows that the jury found the fact to be as alleged by the plaintiff. It may be that it was the intention of Smyth that the coal should be shipped from Salisbury Junction to a point without the state, but the plaintiff’s relation to the coal terminated at Salisbury Junction. Taking the plaintiff’s evidence as true, the service was to be wholly within the state of Pennsylvania and would be presumably subject to the laws of this state. The contrary was not established by the evidence.

The'case was submitted to the jury with a fair and impartial charge and we do not find anything in the assignments of error requiring a reversal.

The judgment is affirmed.


author: Porter, J.,

text:
    Griesmere, Appellant, v. Thorn.

      Principal and surety — Release of surety — Execution—Lien—Fieri facias — Levy.
    The mere failure to follow up the general lien of a fieri facias by a levy upon and sale of the property of a principal, even where the principal has, at the time the writ was in the sheriff’s hands, sufficient personal property to pay the judgment, will not release the surety, who has not required the creditor to’proceed on 'his execution.
    Where a creditor has the means of satisfaction in his hands, and does not choose to retain it, but suffers it to pass into the hands of the principal debtor, the surety is discharged.

      Judgment — Revival of judgment — Defenses.
    If the consideration of a judgment has failed, or there is a defense growing out of the original equity to a part or all of the sum for which the judgment was entered, it is the privilege of the defendant to make application to the court to open the original judgment and permit him to defend; but so long as that judgment remains unassailed, no inquiry can be made into the consideration upon a trial of a scire facias to revive.

      Execution — Bill of sale — Sheriff’s sale — Judgment.
    Where all the goods covered by a bill of sale have been sold at a sheriff’s sale upon an execution issued on a judgment upon one of the notes for which the bill of sale was given as collateral, the amount realized by the sheriff’s sale is conclusive as to the value of the property.
    Argued Jan. 10, 1906.
    Appeal, No. 52, Jan. T., 1906, by plaintiff, from judgment of C. P. Luzerne Co., Oct, T., 1902, No. 474, on verdict for defendant in case of Jacob Griesmere v. Frederique Thorn and Maggie O’Boyle, Executrix of the Estate of Hugh O’Boyle, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Oready, Head and Beaver, JJ.
    Reversed.
    Scire facias to revive a judgment. Before Lynch, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    According to the testimony of Miss Cannon, called by the defendant, she caused the execution to be issued on this judgment. She testified, in substance, she said to the sheriff “ levy upon the property of O’Boyle, but do not now, or at present, levy upon the property of Thorn.” Deputy sheriff Seiple testified she said, “levy upon the property of O’Boyle and do not levy upon the property of Thorn.” But on cross-examination said he would not swear Miss Cannon did not say to him “ not at present ” or “ not now.”
    It is the duty of the surety to give notice to the creditor to proceed against -the principal, but if the creditor does proceed upon his judgment, issues execution and places it in the hands of the sheriff, it is the duty of the sheriff to levy first upon the personal property of the defendant named in the writ; he is presumed to know nothing except to obey the order of the writ, make demand first, then levy if the money is not paid, advertise and sell, realize the money and pay it to the creditor. Whether the law be or not as argued, it appears to the court this must be the law : — [If the creditor, when a writ is placed in the sheriff’s hands, before he does anything upon the writ orders him not to levy upon the principal’s property and to levy upon the suret}r, that certainly is equivalent to withdrawing it from levy if already made.] [1] Because it would be the sheriff’s duty to levy, and if prevented from exercising such duty, by order of the plaintiff in the writ, the latter could not afterwards say the creditor is exempt because the sheriff had not actually levied. [If the order not to levy upon Thorn was explicit and unqualified by Miss Cannon, but to levy upon O’Boyle, it would exempt O’Boyle.] [2] If simply not to levy now, with the qualification he could 'levy after, it would not. Because, as well argued by Miss Cannon, the sheriff had a certain time within which to levy on.both.
    You must consider, too, the fact that a few days after this writ was placed in the sheriff’s hands, it was stayed upon the affidavit of the defendant. The crucial test and the sense of the thing is, was it plaintiff’s fault that Thorn’s property was not held by the execution? If it was by his order, he should not get th'e advantage of it now. If not done by his command, through his counsel, he should not be held responsible and it should not-be charged against him.
    On the same but later in the day, the note was signed by Thorn and O’Boyle. Mrs. Thom made a bill of sale of what might be- called the bottling establishment, which has been read in your hearing, to Mr. Griesmere. [If Griesmere without the surety’s knowledge, without O’Boyle’s knowledge, knowing that O’Boyle was surety for the payment of this money, deliberately and intentionally by a scheme with Thom withdrew the property of Thorn, so that it could not be reached by execution, and therefore execution would be thrown over on O’Boyle, it would be unfair dealing.] [3] It is claimed O’Boyle knew it — part of the testimony is O’Boyle knew this transaction had taken place, and the other, that he did not know. If it was done by Griesmere for the purpose of withdrawing the property of Thorn from the reach of the execution and thereby throwing the weight of debt upon O’Boyle, it would be illegal.
    Plaintiff presented these points:
    2. Jacob Griesmere was under no obligation to proceed to collect this judgment out of the property of Fred. Thom in the absence of notice from Hugh O’Boyle or his representatives. Answer: This is true as a general proposition, but it is not true in this case and is therefore denied. [4]
    3. Execution having been issued against Thom and O’Boyle which was stayed on application of the surety four days later, and no levy having been made on Thom’s property, the plaintiff never had such possession or control of defendant’s (Thorn’s) property as would discharge the other defendant, Hugh O’Boyle, or his estate. Answer: No. 3 is denied. [5]
    4. Neglect or refusal to levy in the absence of notice from the surety will not discharge the surety. Answer : No. 4 is denied. [6]
    6. The jury should disregard all evidence as to the alleged bonus of $200. Answer: No. 6 is denied. [7]
    7. In the absence of notice from the surety to proceed to collect from defendant’s goods the plaintiff is not chargeable with the value of the goods at the time the note fell due, or until the same were actually sold, and the only evidence of their value at that time is the sheriff’s return to the writ. Answer:. No. 7 is denied. [8]
    8. The testimony showing that the alleged promise to postpone the payment of the old indebtedness until after the O’Boyle note was paid, was made after the execution of the O’Boyle note, was without consideration and 'therefore not binding. Answer; No. 8 is denied. [9]
    Defendant presented these points:
    1. If the jury believe that before the note in suit was executed by the defendant, O’Boyle, Griesmere agreed that all moneys paid by Thorn to him, Griesmere, on the indebtedness subsequently thereto, should be applied on the said note, then they may allow the defendant credit for said sum so paid. Answer; Affirmed. [10]
    2. If .the jury believe that Thorn paid to Griesmere $200 out of the $1,200, as a bonus for the loan, the defendant will be entitled to a credit for the same. Answer; Affirmed. [11]
    3. If the jury believe that the attorney for plaintiff after she had placed the execution in the hands of the sheriff instructed him not to levy on Thorn, and by reason thereof his personal property was released from the lien of said execution, they may allow the defendant credit for the amount that the personal property of the- defendant, Thorn, so released would have realized at sheriff’s sale at that time, less the costs of sale. Answer ; That is affirmed with this addition: “ by reason thereof alone and only.” [12]
    4. If the jury believe that the bill of sale was made and delivered to Griesmere with the express condition and agreement, as testified to by Thorn, that the O’Boyle note should first be paid thereout and therefrom, and Griesmere took possession of said goods or of the greater part of the same, then they may allow the defendant credit for the value of the goods so taken as represented by their fair market value at the time he took possession of the same. Answer: That is affirmed, but it will be necessary for you to ascertain from the evidence what the fair market value at that time was. [18]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-18) above instructions, quoting them.

      R. Laura Cannon, for appellant.
    — A surety is primarily liable, and may be proceeded against without recourse to 'him for yffiam he is engaged to answer: Supplee v. Herrman, 16 Pa. Superior Ct. 45 ; Baker v. Small, 17 Pa. Superior Ct. 423.
    And that in the absence of express notice from the surety to the plaintiff to proceed, the plaintiff is under no obligation to pursue the principal, and the surety is not discharged because of failure to so proceed : Conrad v. Foy, 68 Pa. 381; Fidler v. Hershey, 90 Pa. 363.
    Mere indulgence to the principal until he becomes insolvent and unable to pay a debt, will not release the surety on a note which was the evidence of the debt, without omission by the plaintiff to proceed after notice: Johnston v. Thompson, 4 Watts, 446 ; Baker v. Small, 17 Pa. Superior Ct. 423; Morrison v. Hartman, 14 Pa. 55 ; Cathcart’s App., 13 Pa. 416 ; Stephens v. Monongahela Nat. Bank, 88 Pa. 157; United States v. Simpson, 3 P. & W. 437; Rhoads v. Frederick, 8 Watts, 448; Erie Bank v. Gibson, 1 Watts, 143.
    When an execution is placed in the sheriff’s hands the plaintiff by reason thereof has no more control of the debtor’s goods than would a judgment creditor with a lien on lands have control of the lands. The execution delivered to the sheriff binds the personalty somewhat as a judgment duly entered binds the land, and it has been repeatedly held that suffering the lien on lands to expire does not discharge the surety: Mundorff v. Singer, 5 Watts, 172; U. S. v. Simpson, 3 P. & W. 437; Campbell v. Sherman, 151 Pa. 70; Winton v. Little, 94 Pa. 64.
    Where there has been no levy made upon the property of the principal and no notice given by the surety to proceed against the propert}r, the rules of law governing forbearance are the same before as after judgment: Crawford v. Gaulden, 33 Georgia, 173; Miller v. Porter, 24 Tenn. 294; Wade v. Green, 22 Tenn. 546; Humphrey v. Hitt, 6 Gratt. (Va) 509; Alcock v. Hill, 4 Leigh, 622 ; Fulton v. Wedge, 15 Johnson, 433.
    October 5, 1906:

      James L. Lenahan, for appellee,
    cited: Cathcart’s App., 13 Pa. 416; Holt v. Bodey, 18 Pa. 207; Templeton v. Shakley, 107 Pa. 370 ; Com. v. Miller, 8 S. & R. 452; Com. v. Haas, 16 S. & R. 252; Richards v. Com., 40 Pa. 147; Talmage v. Burlingame, 9 Pa. 21; Fegley v. McDonald, 89 Pa. 128; Commercial Nat. Bank v. Henniger, 105 Pa. 496.
   Opinion by

Porter, J.,

The questions presented by this record arise upon a scire facias to revire and continue the lien of a judgment. The original judgment was entered on August 17,1897, upon a note with warrant of attorney to confess judgment, in favor of the plaintiff and against Frederick Thorn and Hugh O’Boyle; the scire facias was issued on July 19, 1902, and judgment was entered for default on September 11, 1902. A write of fi. fa. was, on September 20, 1904, issued upon the last judgment. The defendants, on September 24,1904, acting jointly, presented petitions praying that the judgment on the scire facias be stricken off, that the service of the writ be set aside, and that all proceedings be stayed. The court, upon the presentation of these petitions, granted a rule to show cause why the judgment should not be stricken off and the service of the scire facias set aside, and ordered that all proceedings be stayed meanwhile, as prayed for by the defendants, “sheriff to be secure in his levy.” No levy had heen made upon the personal property of Thorn at the time the order staying the proceedings was made, and the return day of the writ had passed before the rule was disposed of, so that it was impossible to make a levy, after the order staying the proceedings. The sheriff was subsequently permitted to amend his return of service of the scire facias, and the court, on January 4, 1905, discharged the rule to set aside the service of the scire facias, and made absolute the rule to “ set aside the judgment.” This order was amended on January 7, 1905, and the rule to strike off the judgment was discharged as to Frederick Thorn, and made absolute as to Maggie O’Boyle, executrix, “she to appear .and plead within ten days.” Margaret O’Boyle, executrix, having entered a plea, the trial of the issue resulted in a verdict in her favor, and the plaintiff appeals.

Several of the specifications of error refer to rulings of the court below as to the effect, upon the rights of the parties, of certain instructions given by the attorney for plaintiff to the sheriff with regard to the manner in which he should proceed upon the execution. The defendant called as a witness the attorney of the plaintiff, who had issued the execution, who testified that on the day the execution issued she directed the sheriff to levy on the property of the O’Boyle estate, “ and not to levy upon Thorn now.” The deputy sheriff who received the instructions was also called as a witness by the defendant, and he testified that the instructions were “to levy on Mrs. O’Boyle and not on Thorn.” The difference in the testimony of these witnesses does not appear to be material, for there was nothing in the testimony of either of them which would have warranted a finding that the writ had been stayed as to Thorn, nor that the plaintiff had released the property of Thom from the general lien of the writ, nor that he had put himself in a position where he could not order a levy upon the property of Thom at any time. The fi. fa. was not returnable until the second Monday of October; had it not been for the action of the defendants the plaintiff could have ordered a levy upon the property of Thorn at any time prior to the return day. Maggie O’Boyle, executrix, who represented an estate which was surety for Thorn, for the debt involved in this controversy, might have required- the plaintiff to cause the, goods of Thorn, the principal, to be levied upon under the writ, and she would then have been in a position to take advantage of the principle which she now seeks to invoke: Cope v. Smith, 8 S. & R. 110 ; Baker v. Small, 17 Pa. Superior Ct. 423. Instead of doing this she joined Thorn in procuring a stay of the proceedings, and thus put it out of the power of the plaintiff to levy upon the personal property of Thom under that writ. Where the creditor has the means of satisfaction in his hands, and does not choose to retain it, but suffers it to pass into the hands of the principal debtor, the surety is discharged. “ Where there is a levy on personal property belonging to the principal, it is satisfaction pro tanto, as regards the sureties ; of the benefits of which nothing could deprive them except an assent, on their part, to the arrangement by which the property was released: ” Commonwealth v. Vanderslice, 8 S. & R. 452 ; Commonwealth for use of Bellas v. Haas, 16 S. & R. 252; Talmage v. Burlingame, 9 Pa. 21; Cathcart’s Appeal, 13 Pa. 416. Mere supineness and delay in pursuing the principal, unless the inaction be in disregard of an express request of the surety, or there be some circumstance which makes it the imperative duty of the creditor diligently to seek payment from the principal, will not release the surety: Cathcart’s Appeal, 13 Pa. 416; Richards v. Commonwealth, 40 Pa. 147. The execution was a lien upon the personal property of Thorn the moment it reached the sheriff’s hands, but that lien was an inchoate one, without possession or right of possession of the debtor’s goods by reason thereof, whereas a levy is the actual possession of the debt- or’s goods. An actual levyris a seizure, by authority of law, of specific property for the payment of a debt. The release of the goods, by the creditor, after a levy, operates pro tanto as a release of the surety, and, at common law, if the goods were, by the seizure, lost to the debtor, that might also operate as a satisfaction of the judgment as to him: Campbell, Bredin & Co.’s Appeal, 32 Pa. 88. “ The distinction between the lien of the writ and the lien of the levy seems to be that the latter is a technical satisfaction of the judgment:” Stephens v. Monongahela National Bank, 88 Pa. 157. That the mere failure to follow up the general lien of a fi. fa., by a levy upon and sale of the property of a principal, even where the principal had, at the time the writ was in the sheriff's hands, sufficient personal property to pay the judgment, will not release a surety who has not required the creditor to proceed on his execution, has been definitely decided : Morrison v. Hartman, 14 Pa. 55. The first, second, fourth, fifth, sixth, eighth, twelfth, fourteenth and sixteenth specifications of error are sustained. The court below permitted Thorn, the principal debtor, to testify that at the time of the original transaction, when the loan was made by the plaintiff and the note upon which this proceeding is founded was executed and delivered by the defendants, he paid the plaintiff $200 as a bonus, so that he only received $1,000 as the net proceeds of the loan. The original judgment was entered, in 1897, this scire facias to revive and continue the lien was issued in 1902, and the original judgment still stands in full force upon the records of the court of common pleas. “If the consideration of the judgment had failed, or there was a defense growing out of the original equity to a part or all of the sum for which the judgment was entered, it was the privilege of the defendants to make application to the court to open the original judgment and permit them to defend; but so long as that judgment remained unassailed, no inquiry could be made into the consideration upon a trial of the scire facias: ” Kincade v. Cunningham, 118 Pa. 501. The seventh and eleventh specifications of error are sustained. There was no evidence of a scheme between Griesmere and Thorn to defraud O’Boyle, and a fact of which there is no evidence ought not to be submitted to the determination of the jury. The third specification of error is sustained.

Thorn testified that at the time O’Boyle became surety upon the note in question, there was an agreement between the plaintiff, O’Boyle, and Thorn, that the plaintiff, who held another claim against Thorn, should credit the payments made by Thorn, first upon the $1,200 note upon which O’Boyle became surety, and after that was paid, upon the. other note; and that in pursuance of this arrangement he, Thorn, made an arrangement with the plaintiff that the brothers of the latter should pay to , the plaintiff, upon account of the O’Boyle note, the amount of any purchases of goods which they might make of Thorn. The amount of goods so sold by Thorn to the brothers of the plaintiff was $288, which amount was paid to the plaintiff by his brothers. The plaintiff denied this arrangement, but the question was for the jury.

When the defendants executed and delivered the note in question, and as a part of the same transaction, Thorn and his wife executed a bill of sale to Griesmere for certain specific personal property, the consideration mentioned being $2,344; this was given as a collateral security for the debt in question as well as fpr an older note, amounting to $1,144, which the plaintiff held against Thorn. There was not, nor was it intended that there should be, any delivery of the goods to Griesmere. Thorn testified that it was agreed between the plaintiff, O’Boyle, and himself that any money realized out of this property should first be credited on the $1,200 note upon which O’Boyle was surety, and that any surplus should go to the older note. This testimony was flatly contradicted, but the facts were for the jury. It is an undisputed fact that this property was sold at sheriff’s sale, upon an execution issued by Griesmere on a judgment entered on his other note, in November, 1904, after the execution which had been issued on the judgment from which we have this appeal had been stayed by the court and after its return day had passed. All the goods covered by the bill of sale having been sold at sheriff’s sale upon an execution issued on a judgment upon one of the notes for which the bill of sale was given as collateral, the amount realized by the sheriff’s sale is conclusive as to the value of the property: Com. v. Haas, 16 S. & R. 252. The eighth and thirteenth specifications of error are sustained. The fifteenth specification of error does not seem to have been founded on any exception allowed by the court below and cannot be considered.

The judgment is reversed and a venire facias de novo awarded.


author: Mobbison, J.,

text:
    Bracken to use v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — Safety gates — ‘‘Stop, look and listen” — Infant.
    In an action to recover damages for the death of a boy twelve years old while riding on a wagon at a grade crossing, the case is for the jury where the uncontradicted evidence of a large number of witnesses showed that the gates were not properly operated at the time of the accident; that they were raised and the horse and wagon permitted to be driven into the crossing when the train was approaching at the rate of forty miles per hour, and so near that the wagon was struck and demolished and the boy killed, although the horse was moving all of the time and apparently the driver had made a reasonable effort to escape with his heavy load, but failed.
    Where a wagon is stopped at the safety gates of a grade crossing at a time when the gates were raised, and then proceeds and is struck by a train going at a rapid rate of speed, the question whether the driver of the wagon should have stopped, looked and listened at another point is for the jury.
    In an action to recover damages for the death of a boy twelve years old killed at a grade crossing, the question of the boy's capacity and understanding to be sensible of danger, and to have the power to avoid it, is one of fact to be disposed of by the jury under proper instructions from the court. In such a case the court cannot say as a matter of law that the boy had sufficient mental development and capacity to comprehend the danger so that he would be guilty of contributory negligence, although an adult might have been in the same circumstances.

      Negligence — Parent and child — Action—Parties.
    . In an action to recover damages for the death of an infant where a recovery has been had in the name of the father alone, the record may be amended after the trial and verdict, by bringing the mother thereon as a plaintiff.

      Negligence — Infant—School law — Act of July 11, 1901, P. L. 658.
    In an action to recover damages for the death of a boy twelve years old, it is proper for the court to charge the jury that they should assume that the parents of the boy would have been compelled to send him to school until he was sixteen years old.

      Negligence — Railroads—Ordinance—Safety gates — Speed.
    Where a railroad company runs a train at the rate of forty miles an hour within the limits of a city, and fails properly to operate its safety gates at a crossing, and an accident results, it may be shown that no whistle was sounded at the crossing, although an ordinance of the city prohibited the sounding of the whistle.
    ■ Evidence that a city ordinance forbade trains to be run at a higher rate of speed than five miles an hour may be considered in ascertaining whether or not the train was being negligently run, but such an ordinance is not in itself evidence of negligence.
    The fact that a railroad company operated its road without safety gates at crossings other than the one where an accident occurred does not tend to establish negligence at the place of the accident.
    In an accident case where it appears that safety gates were negligently operated at a crossing, it is reversible error for the court to charge as follows: “It has been argued by counsel that these are not safety gates, but rather death traps; why they should be there we are not just clear, because if they are a positive injury they ought to be taken down.”
    In an action to recover damages for the death of a boy at a grade crossing while riding on a wagon, the testimony was clear that the boy was told not to get on the wagon, and that the driver wanted him to keep off. The court charged as follows: “It is argued by counsel for the defendant that the boys were forbidden to be on the wagon, but we recollect of no testimony in the case which would warrant such a conclusion.” Held, to be error.
    In such a casé where the evidence shows that the boy was twelve years old, and that he had been warned by the driver to keep off the. wagon, it is reversible error for the court to charge: “If the jury find that the driver of the wagon upon which the deceased was riding was negligent, the negligence of the driver cannot be imputed to the boy as a guest on the wagon.”
    A boy twelve years old may have sufficient mental capacity to know that he ought to stop, look and listen before' going upon the tracks of a railroad, and he may be guilty of such contributory negligence as to bar recovery on the part of his parents for his death.
    Argued May 7, 1906.
    Appeal, No. 2, April T., 1906, by defendant, from judgment of C. P. Cambria Co., June T.,1903, No. 32, on verdict for plaintiff in case of Hudson C. Bracken for use of W. D. Lloyd v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son. Before O’Connor, P. J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented the following points :
    1. It being admitted that the defendant company operated safety gates on both sides of the railroad, it would not be negligent in running its express train at a speed of forty miles per hour at that point. Answer: If it is admitted that the defendant operated safety gates at this crossing and that it would not be negligent in running its train at a speed of forty miles an hour, then we cannot see how, under the circumstances, the defendant can escape the conclusion that it was negligent in this case, because the uncontradicted evidence is that the gates were not operated on this particular occasion ; we cannot affirm the point because the gates were not operated at the time the accident occurred. [1]
    2. The decedent not having stopped, looked or listened, nor having requested the driver to do so, for the approaching train, before and while on the crossing, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: We refuse the point because it is not-conceded that the driver even did not stop, look and listen. [2]
    3. The evidence being undisputed that the decedent was a strong, healthy and intelligent boy, about twelve1 years and six months old, and was warned by his parents of the danger at said crossing, therefore it is presumed that he was sensible of the danger and possessed the intellectual power to avoid it and was required to take proper care of his person by stopping, looking and listening before going on the crossing and also before going on track No. 2. Answer: We have tried to instruct you fully upon that point and we have said to you that the plaintiff in this case was not bound by the negligence of the driver in his failure to observe the usual rule, but that if the decedent, Robert Bracken, considering his age and intelligence and his knowledge of the crossing, deliberately went into the danger knowingly, that he could have reasonably avoided the danger, in that event the plaintiff would not be entitled ,to recover. [»]
    4. Inasmuch as Alice Bracken, the mother of the decedent, is living and not a party to this suit, the 'verdict should be for the defendant. Answer: We decline to so instruct you. [4}
    5. That under the act of April 26, 1855, the plaintiff would be entitled to one-half of the whole damages the parents sustained, if any, inasmuch as the evidence shows the mother of the decedent is living and her rights would not accrue to the plaintiff. Answer; We decline to affirm that point. The doctrine as laid down in Phila. Traction Co. v. Orbann, 119 Pa. 37, is to the effect that where an action is brought by a minor to recover for personal injuries, he is not entitled to recover for the losses of earnings during minority, since his father is entitled to them. The act of 1855 says the parents 'may recover in cases of this kind. In one case that went to the Supreme Court the parents were joined, but the Supreme Court did not pass upon the question because it was not made a special assignment of error. We are of the opinion that the wife is entitled to one-half the damages in an action of this kind, and therefore refuse the point. [5]
    6. That the measure of damages, if any, is the compensatory value of the services of the decedent during his minority; less (a) The cost of his maintenance and support; also less (b) The period during which the plaintiff was compelled to send the decedent to school in accordance with the Act of July 11,1901, P. L. 658, which is until his son would be sixteen years o f age. Answer : With the exception of the last line of this point, we affirm it. The last line assumes a fact which is not a correct statement. The father in a case of this kind is not obliged to send his son to school until he is sixteen years of age. In this case, under the evidence, Robert Bracken was such a boy as his parents would not be required to send to school after he becomes thirteen years of age. With this exception the point as stated is correct, and it states the true measure of damages. [6]
    10. If the whistle was not sounded for the Fairfield-avenue crossing it could not be negligence on the part of the defendant. Answer : If the gates had been down and prevented Dennison and this boy from going upon the tracks, that might have been sufficient warning — -we think it would have been; but if the gates were up, and no signal sounded, we would say, as matter of law, unless there is evidence of some other warning, that the Pennsylvania Railroad was negligent. It is hard to escape the conclusion -in this case that ■ they were negligent under any circumstances, and this point admits that there is evidence of other negligences. [8]
    The court charged in part as follows:
    [It has been argued by counsel that these are not safety gates, but rather death traps; why they should be there we are not just clear, because if they are a positive injury they ought to be taken down.] [12]
    [It is argued by counsel for the defendant that the boys were forbidden to be on the wagon, but we recollect of no testimony in the case which would warrant such conclusion.] [13]
    [Because the plaintiff is entitled to recover for the loss of services, he is not bound by the rule which requires that the person driving the wagon must be shown to be free from negligence ; in other words, there is no evidence in the case which would warrant you in concluding that the plaintiff consented to his son being on this particular wagon, and if the railroad company was negligent so as to fasten upon it responsibility, though the driver of this wagon might also be negligent, his negligence cannot be chargeable to the plaintiff, for the reason that it has not been shown that the parents of either of the boys consented or acquiesced in their being upon the wagon, and the boys could not be chargeable with the driver’s negligence, for the reason that he had entire control over the vehicle.] [14]
    October 5, 1906 :
    [If that is the evidence, then he did stop; if he stopped, the law will presume that he looked and listened, and there being no evidence to the contrary, that would be assumed; that is, his compliance with the ironclad rule would be presumed, and that would take it out of the case.] [15]
    [If the jury find that the driver of the wagon on which Robert Bracken was riding was negligent, the negligence of the driver cannot be imputed to the plaintiff, the father of the boy.] [16]
    Verdict and judgment for plaintiff for $1,250.15. Defendant appealed.

      Errors assigned were (1-6, 8, 12-16) above instructions, quoting them; (7, 10, 11) rulings on evidence referred to hr the opinion of the Superior Court.

      H. W. Storey, for appellant

      Wm. Williams, with him W. David Lloyd, for appellee.
   Opinion by

Mobbison, J.,

On November 29, 1902, about 9:40 A. M., Robert Bracken, aged twelve years and seven months, was instantly killed at the Fairfield-avenue grade crossing, in the suburbs of the city of Johnstown, by one of the defendant’s trains. The boy was playing near the defendant’s tracks, when Andrew Dennison, driving a one-horse wagon, attempted to cross the four main tracks of defendant company, and one of the Cambria Steel Company. The boy jumped on the rear end of the wagon, although told by Dennison to keep off, for the reason that he had a heavy load of sand which was rather too much for his horse. Two companions got on the wagon with the boy, but they saw the train approaching and escaped, and it appears that they did all ■ that they could to warn Bracken; but he remained on the load of sand, with his back to the locomotive, and was beckoning to his companions to follow him. The express train which-killed the boy was going east on track No. 2, and it demolished the wagon. Mr. Dennison and the horse escaped. There were what are termed safety gates at this crossing, but the gateman either negligently, or because no proper warning was given of the approach of the train, raised the gates and permitted a team just in front of Dennison to enter the crossing, and Dennison followed.

Hudson C. Bracken, the father of the boy, brought this action, and recovered a verdict and judgment, without his wife, the mother of the boy, being made a party to the suit, until after the recovery, when her name was brought upon the record by amendment. The verdict in favor of the plaintiff is $1,250.15.

The two prominent questions in the case are, of course, whether the defendant company was guilty of negligence and the alleged contributory negligence of the boy.

The first assignment of error is: “ It being admitted that the defendant company operated safety gates on two sides of the railroad, it would not be negligent in running its express trains at a speed of forty miles an hour at that point.” This point was refused for the reason that the uncontradicted evidence of a large number of witnesses showed that the gates were not properly operated at the time of the accident; that they were raised and the horse and wagon permitted to be driven into the crossing when the train was approaching at the rate of forty miles per hour, and so near that the wagon was Struck and demolished and the boy killed, although the horse was moving all of the time and apparently the driver made a reasonable effort to escape with his heavy load, but failed.

Under the evidence the jury could find that the gates were negligently operated; and this being so, if the train approached at the speed alleged without some warning, it is difficult to understand how the learned court could have affirmed the point. Raising the gate and allowing persons to enter the crossing, in the circumstances indicated by the evidence, was certainly evidence for the consideration of the jury as to the negligence of the defendant: Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405 ; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297 ; Ayers v. Ry. Co., 201 Pa. 124. We cannot sustain the first assignment.

The case of Custer v. R. R. Co., 206 Pa. 529, is not in conflict with the foregoing cases. In that case the watchman did his full duty and the accident was caused by an exceptional occurrence, viz : the stalling of the team upon the edge of the track and its remaining there for some considerable time. That case is authority for the proposition that when the company has provided safety gates and operates them properly, trains may pass on grade crossings at a high rate of speed.

The second assignment is: “ The decedent not having stopped, looked and listened, nor having requested the driver to do so, for the approaching train, before and while on the crossing, the plaintiff cannot recover and the verdict should be for the defendant.” This point was refused.

There was evidence that the wagon on which the boy was riding was standing at the gate waiting for a team to pass when he got on the wagon. It seems then that the jury could find that the wagon stopped at .the gate, and the presumption of law is that, having stopped, both the driver and the decedent would look and listen before entering upon the crossing. The additional question of whether or not the driver and the boy should have stopped, looked and listened at another point was for the jury: Cromley v. Pennsylvania R. R. Co., 208 Pa. 445; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233.

But in addition to this, the boy was only twelve years old and the court could not say, as a matter of law, that he had sufficient mental development and capacity to comprehend the danger so that he would be guilty of contributory negligence, although an adult might have been in the same circnmstances. However, this question is raised by the third assignment and it will be disposed of thereunder. The second assignment is not sustained.

Third assignment: The decedent being under fourteen years of age could not be held, as a matter of law, guilty of such contributory negligence as would prevent his parents from recovering, and the question of his capacity and understanding to be sensible of danger, and to have the power to avoid it, was one of fact to be disposed of by the jury under proper instructions from the court: Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Kelly v. Traction Co., 204 Pa. 623 ; Crissey v. Hestonville, etc., Passenger Ry. Co., 75 Pa. 83.

The question of whether the boy was guilty of contributory negligence was properly submitted, to the jury. The third assignment is not sustained.

The fourth, fifth and ninth assignments raise the question of the failure to join Alice Bracken, the mother of the boy, with the father as plaintiff. We do not see much force in these assignments and the arguments submitted, to sustain them. If the case was otherwise properly tried, it is unreasonable to suppose that the recovery was any larger because the father was the sole plaintiff at the trial than it would have been had the mother been joined as plaintiff. After the trial and verdict the record was amended by bringing the mother of the boy thereon as a plaintiff. Let it be conceded that the suit ought to have been brought in favor of the father and mother, under the Act of April 26, 1855, P. L. 309, yet we think the mistake could be cured by amendment.

In Weaver v. Iselin, 161 Pa. 386, the action was brought by a father to recover damages for the death of his infant son, and a verdict and judgment recovered in the court below, and the very question of the right of the father to recover alone was raised by a point before verdict, and when the case was in the Supreme Court an amendment was allowed to bring the wife of the plaintiff upon the record. We think that case disposes of the fourth, fifth and ninth assignments, and they are not sustained.

The sixth assignment raises the question of the measure of damages, and the only point the appellant presses is that the plaintiff was compelled to send the decedent to school under the Act of assembly of July 11, 1901, P. L. 658, until he would be sixteen years old. Under the evidence the court held that the boy came within the provisions of the proviso to the act: “ This act shall not apply to any child between the ages of thirteen and sixteen years who can read and write the English language intelligently, and is regularly engaged in any useful employment or service.”

Under the evidence we are not prepared to say that the court could assume, or allow the jury to find, that the parents would have been excused from sending this boy to school from the age of thirteen to sixteen years. We cannot see how it could be assumed that if the boy had lived he would have been regularly employed within the meaning of the proviso to the act, during the time in question. The jury ought to have been instructed to assume that the parents would have been compelled to send him to school till he was sixteen years old. The sixth assignment is sustained.

The seventh and eighth assignments relate to the refusal of the court to strike out all the testimony to the effect that the whistle of the locomotive was not sounded for the crossing when the accident occurred, and if the whistle was not sounded for that crossing it could not be negligence on the part of the defendant because of an ordinance of the city prohibiting the sounding of the whistle as a warning at a crossing. We may dispose of these assignments by saying that it is idle to argue that a railroad company can run its trains over a grade crossing in a city at the rate of forty miles an hour and give no proper signal, and at the same time fail to properly operate its gates, and to so operate them that travelers may be deceived and led into danger: Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405; Farley v. Harris, 186 Pa. 440; Webb v. Railway Co., 202 Pa. 511; P. W. & B. R. R. Co. v. Stinger, 78 Pa. 219. Under the peculiar facts in evidence we do not sustain the seventh and eighth assignments. ’ .

The tenth assignment: “ The court erred in admitting in evidence, against the objection of defendant, ordinance No. 136, limiting the speed of trains to five miles per hour within the limits of the city of Johnstown,” quoting the ordinance. ■.

In Lederman et ux. v. Penna. Railroad Co., 165 Pa. 118, it is held, as stated in the syllabus: “ Evidence that a city ordinance forbade trains to be run at a higher rate of speed than five miles an hour may be considered in ascertaining whether or not the train was being negligently run, but such an ordinance is not in itself evidence of negligence.” See also Davidson v. Traction Co., 4 Pa. Superior Ct. 86 ; Foote v. American Product Co., 195 Pa. 190 ; Simmons v. Penna. R. R. Co., 199 Pa. 232. We do not sustain the tenth assignment.

The eleventh assignment complains of the court for admitting the testimony of Fred Williams that there were no safety gates at the Bone Mill Crossing. This evidence was objected to as immaterial and irrelevant, and as having no connection with the Fairfield-avenue crossing, where there were safety gates and where the accident occurred. The court overruled the objection and admitted the evidence. We are not informed how far the Bone Mill crossing was from the place of the accident, but it is conceded to have been another crossing, having no connection with the Fairfield-avenue crossing, and it is not shown to have been within such a distance of the latter crossing that the want of gates there in any manner contributed to the accident. Upon the facts as we understand them this evidence was improper. It is difficult to see that it could have had any legitimate bearing upon the case, and we cannot say that it did not tend to prejudice the jury against the defendant company and lead to the conclusion that the trains were being run in a reckless and careless manner upon a portion of the track remote from the place of accident. That the defendant company saw fit to operate its road without safety gates, at crossings other than the one where the accident occurred, does not tend at all to establish negligence at the place of the accident. If this testimony was proper, why not go on and prove the want of safety gates at a dozen or more other crossings ? We feel compelled to sustain the eleventh assignment.

The twelfth assignment is: “ It has been argued by counsel that these are not safety gates, but rather death traps; why they should be there we are not just clear, because if they are a positive injury they ought to be taken down.” If it were not for the fact that the judgment must be reversed and the case go back for another trial, we might hesitate to sustain this assignment. But we are of the opinion that the court was not warranted in using the language in the connection where it appears in the charge. At best, it served no useful purpose in instructing the jury, and it may have conveyed the idea to the jury that the ’court considered the safety gates to be death traps. Such language in a charge, in a case of this character, does not tend to lead the jury to a fair and impartial consideration and determination of the questions involved. The twelfth assignment is sustained.

As to the thirteenth assignment, we would probably consider it of too little importance to justify a reversal of the judgment, but inasmuch as the case is to be retried we are disposed to sustain it. The testimony is clear that the boy was told not to get on the wagon and that the driver wanted him to keep off. The counsel for the defendant had a clear right to call this to the attention of the jury in his argument, but the learned court, by the language quoted in the assignment, probably destroyed, with the jury, the whole effect of the argument upon that point. The thirteenth assignment is sustained.

We are not convinced of reversible error in the fourteenth, fifteenth and sixteenth assignments. When they are considered in connection with the general charge, we are not satisfied that the defendant suffered any serious injury from the language contained therein, and these assignments are not sustained.

The seventeenth assignment is: “ If the jury find that the driver of the wagon upon which Robert Bracken was riding was negligent, the negligence of the driver cannot be imputed to the boy as a guest on the wagon.” The court affirmed this point and in this we think there is error. If the boy had the capacity and intelligence to appreciate the danger of the crossing, and knew what care and caution he should exercise, and he was careless and reckless and intrusted his safety to the driver of the wagon, and he was negligent, then his negligence might have been imputed to the boy by the jury, and in such case it might bar the plaintiff’s recovery: Crescent Township v. Anderson, 114 Pa. 643; Decker v. East Washington Borough, 21 Pa. Superior Ct. 211. In addition, it is a palpable mistake in the court to say in effect to the jury that the boy was a guest on the wagon. All of the evidence on this question is to the effect that the boy was warned to keep off the wagon by the driver, and, therefore, it is not correct to designate him as a guest. The seventeenth assignment is sustained.

Inasmuch as this case may be tried again we desire to state as plainly as we can that the question of the contributory negligence of the deceased boy is a very important factor in this case. If, on another trial, the jury should find that the boy was bright and intelligent and of sufficient mental capacity and knowledge to comprehend the danger at this crossing and to know that he ought to stop, look and listen, and use all reasonable care and prudence to protect himself, and that he failed to do this, then his parents cannot recover because of the negligence of the defendant company in failing, if it did fail, to give a proper signal before reaching the crossing and in failing to properly operate the safety gates. Our Supreme Court has held in a long line of cases that the negligence of the defendant in the manner above alluded to will not release the traveler from exercising all due care and caution while crossing the tracks of the defendant company. It is, therefore, apparent that the capacity of the deceased boy to be guilty of such contributory negligence as would have prevented his recovery if he had been injured and lived, may also be a complete bar to a recovery on the part of his parents. Therefore this question should be fairly, clearly and impartially submitted to the jury : Greenwood v. Railroad Co., 124 Pa. 572; Dean v. Penna. R. R. Co., 129 Pa. 514; Ihrig v. Erie Railroad Co., 210 Pa. 98.

The assignments of error are all dismissed except the sixth, eleventh, twelfth, thirteenth and seventeenth, which are sustained, and the judgment is reversed with a v. f. d. n.