text:
    Bakewell, Appellant, v. Turner.

      Landlord and tenant — Notice—Termination of lease — Holding over.

    Where a tenant from year to year under a written lease gives notice within’ the proper time of his intention to terminate the lease, but does not actually remove from the premises until nearly a month after the’ date of the termination of the lease, the landlord may, in the absence of a new agreement, treat the lessee as a tenant for another year under the terms of the written lease under which the lessee took possession of the premises.
    May 14, 1908:
    Argued April 17, 1908.
    Appeal, No. 163, April T., 1908, by plaintiffs, from order of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 171, discharging rule for judgment for want of a sufficient affidavit of defense in case of Allan C. Bakewell and Thomas W. Bakewell, executors of the last will and testament of William Bakewell, deceased, v. G. E. Turner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for rent.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.

      Alter & Wright,.ior appellant.

      E. J. Kent, for appellee,
    cited: Williams v. Ladew, 171 Pa. 369; Effinger v. Lewis, 32 Pa. 367.
   Opinion by

Morrison, J.,

In this suit in assumpsit the plaintiffs filed an affidavit of claim, with a copy of the lease upon which the suit was founded; the affidavit alleged that the lease had expired on April 1,1907, and that the defendant had held over, after its expiration, with the plaintiffs’ consent, and had failed to pay the rent due May 1, 1907.

The affidavit of defense admitted the execution and existence of the lease and the occupancy thereunder, but denied that under its terms the tenant, by holding over, became a tenant for another year. By the terms of the lease the rent was payable monthly in sums of $150 per month. The affidavit of defense further alleged that, "pursuant to notice duly given to plaintiffs prior to the expiration of the term of said lease,” defendant removed from the premises on April 26,1907.

A rule was taken by plaintiffs for judgment for want of a sufficient affidavit of defense and the court below, upon argument, discharged, the rule, and sealed a bill of excejptions, and from that order this appeal was taken.

The learned court seems to have attached importance to the allegation in the affidavit of defense that notice of the defendant’s intention to remove from the premises was duly given before the termination of the lease. But the fact remains that he did not remove until twenty-six days after the date of the termination of the lease, and under the decisions in this state, this fact put it in the power of the plaintiffs to consider-the defendant a tenant for another year, in the absence of a new agreement, under the terms of the written lease, under which the tenant took possession of the premises.

In the present case there is no sufficient averment of a new arrangement set out in the affidavit of defense. The affidavit of defense contains some immaterial averments and some legal conclusions, but, taken together and given their full force, they signally fail to furnish facts giving power to the defendant to hold over twenty-six days and then terminate the lease and end the relation of landlord and tenant between himself and the plaintiffs. “ Defendant denies -that under the provisions of the lease he became a tenant of the said property and liable to pay rent by the terms and conditions of the lease for the term of one year from April 1, 1907, as alleged in plaintiffs’ statement.” But this is only a legal conclusion and under the decisions it is not good law: Harvey v. Gunzberg, 148 Pa. 294; Patterson v. Park et ah, 166 Pa. 25; Williams et al. v. Ladew et al., 171 Pa. 369. The above caseswere cited and considered by the court below, but, on the facts in the present case, the learned judge failed to apply the law as decided in these and many other cases.

The lease contains the following: “It is further agreed between the parties hereto, that should the said party of the second part continue to occupy the said tenement after the expiration of the term above limited, by consent of the said parties of the first part, without entering into any further or other agreement, then the amount of rent, times of payment and other covenants and agreements hereinbefore mutually agreed upon, shall be continued as applicable to such further term so long as the said parties may continue to occupy the relation of landlord and tenant.”

We have already seen that the affidavit of defense avers no other or further agreement sufficient in law to permit the tenant to hold over in the relation of tenant, except under the written lease which expired, by its terms, on April 1,1907.

But,-under all of the cases, it was in the power of the landlord to silently permit the tenant to hold over and enforce against him the terms of the lease for a year from April 1, 1907.

The court below was in error in holding that the tenant could continue the term of his occupancy, after April 1, 1907, without a new agreement, by a simple notice, and not be liable under the terms of the old lease. In other words the court held that the tenant could, by his own acts, make himself a tenant of the landlord after the expiration of the written lease, and then, at his own will, terminate the relation of landlord and tenant between himself and the lessors. The law is not so. .The court, to support the above position, cited and relied on Effinger v. Lewis, 32 Pa. 367. But we think the learned . court misunderstood and misapplied that case. In it there .was a lease for 100 years, and it provided that the lessee, his heirs and assigns, might hold the premises so long as he or they should think proper, after the expiration of the term, at the same rent. The question was the right to hold under said lease longer than 100 years. The Supreme Court held that the parties meant to-create an estate that should not end so long as the grantee, his heirs and assigns, should desire to keep it at the rent agreed upon, and that there was no rule or policy of law.standing in the way of such a contract. That case does not touch the present controversy, because the tenant has no agreement or arrangement with his landlord placing him under the protection of that case. We cannot agree, under the facts in the present case, that the tenant has succeeded in getting into a legal position where he can occupy the premises during his lifetime. His legal position is, so far as the facts now appear, that of a tenant for a year from April 1, 1897, under the terms of the lease for three years from April 1,1904.

The assignment of error is sustained, the order reversed, and the rule reinstated, and unless other legal or equitable ground is shown to the contrary, the court below is directed to make the rule absolute and enter judgment against the defendant for the amount of the plaintiffs’ claim, with interest and costs.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Lohrey, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—Grade crossing — “Stop, look and listen” — Obstruction of view — Contributory negligence — Safety gates.

    Where the driver of a wagon approaches a grade crossing over a railroad having three tracks, at a time the safety gates are raised, and it appears that the view of the second and third tracks is obstructed by high buildings at both corners within eight feet of the first track, and by standing cars upon the first track, the duty of the driver is not fulfilled by merely stopping before going upon the first track, but he is bound to get off his wagon and go ahead of his team, and look and listen for trains approaching on the second and third tracks, and if he fails to do so, and his wagon is struck by a train on the third track, no recovery can be had for the loss of the wagon and its contents. In such a case the driver was not justified in driving upon the tracks after stopping because of the fact that the safety gates were open.
    Argued April 17, 1908.
    Appeal, No. 198, April T., 1908, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1908, No. 527, for defendant non obstante veredicto in case of Henry Lohrey v. Pennsylvania Railroad Company.
    Before Rice, P. J.; Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for the destruction of a wagon and its contents and for injuries to a horse.. Before Carnahan, J.

      May 14, 1908:
    The circumstances of the accident are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $329.46. The court subsequently entered judgment for defendaut non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Harvey A. Miller, for appellant. —
    The case was for the jury: Messinger v. Penna. R. R. Co., 215 Pa. 497; Penna. R. R. Co. v. Ackerman, 74 Pa. 265; Rauch v. Smedley, 208 Pa. 175; Devlin v. Beacon Light Co., 198 Pa. 583.

      James B. Miller, with him Patterson, Sterrett & Acheson, for appellee,
    cited: Kinter v. Penna. R. R. Co., 204 Pa. 497; Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Greenwood v. Railroad Co., 124 Pa. 572; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297; Messinger v. Penna. R. R. Co., 215 Pa. 497; Urias v. Railroad Co., 152 Pa. 326.
   Opinion by

Morrison, J.,

In this action of trespass, based on the negligence of the defendant, the court below refused the defendant’s motion for a binding instruction and there was a verdict in favor of the plaintiff, but, on motion of defendant’s counsel, the learned court subsequently entered judgment on the whole record in favor of the defendant non obstante veredicto. To this judgment the plaintiff excepted and appealed to this court.

The only assignment of error requiring discussion is the third, based on the said judgment.

There was sufficient evidence to carry the question of' the defendant’s negligence to the jury, although it seems to us that on this question the evidence was strongly in favor of the defendant. But the veracity of the witnesses and the weight of their testimony were for the jury.

The judgment of the court was against the plaintiff on the ground of the contributory negligence of his driver who had the property in charge which was injured by the defendant’s shifting engine. If the testimony of the driver, clearly and without drawing any doubtful or uncertain inferences, con- ' victs him of contributory negligence, then, under the evidence in this case, the plaintiff cannot be permitted to recover. He testified as follows: “Q. You will explain to the court and' jury how you drove to the crossing and crossed, and how the injury occurred? A. Well, in the evening I was coming along, coming from Smallman, driving down towards the crossing, and I heard and see nothing till I got there and stopped. I drove on until I got in the middle of the tracks, and I seen an engine coming down and I drove on over and it hit me. Q. Could you see down the tracks? A. No, you couldn’t see .down nor up; the cars are up and down, standing on both sides, until you go on the second track, then you can see up and down. Q. Let us know where you did stop? A. You can’t see very far that way. If you want to see up and down the track, you have got to get right up on top of it. Q. Your horses’ heads were at the gate when you stopped? A. Yes, sir. Q. Did you get off the wagon? A. No, sir. Q. Could you see anything from where you stopped? A. No, sir. Q. Then you started right ahead? A. Yes, sir. Q. Why couldn’t you see anything? A. Well, you can’t see around a corner. Q. Around the corner of what? A. The mill. Q. Was there anything besides the mill that obstructed your view of the track? A. Empty cars on each side. Q. Did you see the watchman? A. Yes, sir. Q. Where was he? A. Up in the tower house. Q. Was there any signal from him? A. No, sir.”

According to all the testimony there were three tracks at the place of the accident and the driver says he had crossed two of these tracks, and was hit on the third track.- He also: testifies clearly that he could not see these tracks at the time of the accident, to his right and left, till he got to the second track and then he could see the third one, on which he was struck.

It is perfectly clear that on account of a mill within eight feet of the track at each corner of the street where the driver stopped, and the cars standing on the first track, he could not see to the right or left far enough to justify him in driving onto the tracks without going ahead of his team and looking and listening.

The driver was familiar with the crossing as he testified he had been crossing there for seventeen years. It is contended that the evidence that the safety gates were open should carry the question of the driver’s negligence to the jury, and on this point, Messinger v. Penna. R. R. Co., 215 Pa. 497, is cited. We do not think that case controls the present one. In it there was evidence that the plaintiff did stop, look and listen at a point where he could see the tracks for a distance of eighty feet from the crossing, and there was no other point from which a further view could be obtained until some of the tracks were crossed, and at the crossing the safety gates were raised. Under that state of facts it was held that the open safety gates is a fact for the consideration of the jury in determining whether the plaintiff exercised care according to the circumstances. But that case and several others hold that open safety gates do not relieve the traveler from the duty of exercising care.

In the present case the plaintiff’s driver was very familiar with the crossing, and he stopped at a place where he could not get a view of the tracks on account of the cars standing on the first track and the mills on each side of him, standing so close to the track that he said he could not see the tracks around their corners. We do not think he was justified in driving upon the tracks because of the alleged fact that the safety gates were open. That fact did not relieve him from the exercise of due care. By failing to exercise such care he drove upon the tracks and was hit because he did not do what the Supreme Court said must be done in such a case, in Kinter v. Penna. R. R. Co., 204 Pa. 497, i. e., get down and go where he could see. See, also, Dryden v. Penna. R. R. Co., 211 Pa. 620.

Under the facts detailed by the driver he was guilty of negligence in driving upon the tracks without descending from his wagon and going ahead of his team till he could get an adequate view of the tracks. See, also, Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Penna. R. R. Co. v. Ackerman, 74 Pa. 265; Penna. R. R. Co. v. Beale, 73 Pa. 504.

As to the safety gates, see, Greenwood v. Railroad Co., 124 Pa. 572, 577; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297.

In Urias v. Railroad Co., 152 Pa. 326, it was said: “But where there is no such doubt; where the deceased stopped at a point where he could not see, it is for the court to determine whether it was a proper place.” And again: “If he stopped behind the icehouse at a point where he admittedly could not see, it was not a compliance with the rule laid down in Railroad Co. v. Beale, 73 Pa. 504.”

This cáse does not materially differ from Keller v. Phila. & Reading Ry. Co., in which we filed an opinion on February 28, 1908, affirming the judgment in favor of the defendant non obstante veredicto.

We feel constrained by many decisions to hold that the learned court below did not err in entering judgment non obstante veredicto in favor of the defendant.

Judgment affirmed.


text:
    Central Typesetting Company v. Ober, Appellant.

      Promissory notes — Use of notes to pay debts of payee — Consideration.
    If one elects to make and deliver bis promissory note to another to be used to pay the debts of the latter, and they are so used, the former cannot be heard to defend on the ground that he received no consideration for the notes.
    Where promissory notes are drawn for the benefit of a street railway company, and are made payable to a creditor of the company for the purpose of paying the company’s debt to the payee, the maker cannot .set up as a defense that the notes were delivered to the payee upon condition that the latter would return to the street railway company certain other promissory notes, and that the payee had neglected and refused to perform such condition; nor in such a case can the maker set up as a defense a mere averment that the payee had assigned a portion of the claim against the street railway company to a third person, without any averment of facts to show that the assignment was valid and binding upon the payee, which was a corporation.
    Where fraud is set up as a defense to a promissory note sufficient facts must be averred to enable the court to determine whether there was or was not fraud in the transaction.

      May 14, 1908:
    Argued April 22, 1908.
    Appeal, No. 208, April T., 1908, by defendant, from order of C. P. No. 4, Allegheny Co., Second Term, 1908, No. 201, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Central Typesetting Company v. Frank L. Ober.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      Benjamin H. Thompson, with him Harry J. Graham, for appellant. —
    Had the notes in this case been made to the railway company, and by it indorsed to plaintiff, the facts alleged in the affidavit of defense would have been sufficient to put plaintiff to proof that it is a bona fide holder for value: Lerch Hardware Co. v. Bank, 109 Pa. 240; Reeper v. Greevy, 5 Pa. Superior Ct. 316; Gunnis v. Weigley,. 114 Pa. 191.
    And such would have been the case had the railway company made the notes and appellants indorsed them: Moeck v. Littell, 82 Pa. 354.
    And appellee having represented at the time the notes were given that there was $1,200 owing to it, the defense that ap-' pellee had previously assigned a portion of its claim is sufficient : Hutchinson v. Boggs & Kirk, 28 Pa. 294.
    An affidavit of defense should, where there are any facts in doubt, be sustained and the defendant given a jury trial: Kerr v. Culver, 209 Pa. 14; Brown v. Gourley, 214 Pa. 154; Hatboro National Bank v. Stevenson, 33 Pa. Superior Ct. 144; Marquis v. McKay, 216 Pa. 307.

      Jas. W. Collins, for appellee.
   Opinion by

Morrison, J.,

The plaintiff declared upon two certain promissory notes executed by the defendant, dated October 19, 1907, each for the sum of $468 payable three months after date to the Central Typesetting Company. Upon the declaration, under the law and rules of practice the plaintiff was entitled to judgment, unless the defendant filed a sufficient affidavit of defense, sec. reg. The error assigned is to the action of the court in granting judgment for want of a sufficient affidavit of defense.

In the first paragraph of the affidavit the defendant says:. “that the two promissory notes upon which this action was founded were made by affiant for the use and benefit of the Myersdale & Salisbury Street Railway Company and delivered by affiant to W. W. Staub, Secretary of said Street Railway Company; that at the special instance and request of plaintiff they were made payable directly to plaintiff instead of said Street Railway Company upon the faith of plaintiff’s representation that there was at least the amount of said note owing to plaintiff by said Street Railway Company; and that said defendant has received no consideration for said notes either from plaintiff or said Street Railway Company.”

The affidavit of defense does not set up accident, fraud or mistake in the making and delivery of the notes. Giving full weight to his averments the defendant appears to have given the notes to the secretary of the street railway company, to pay a debt of the latter to the plaintiff, and the notes were used for that purpose. Therefore, it is immaterial whether or not the defendant received any consideration for the notes. He could legally obligate himself for their payment in the manner stated in his affidavit, without receiving any valuable consideration. If one elects to make and deliver his promissory notes to another, to be used to pay the debts of the latter, and they are so used, the former cannot be heard to defend on the ground that he received no consideration for the notes: Philler et al. v. Patterson, 168 Pa. 468, We do not see that such transaction differs in principle from an accommodation indorsement.

The next paragraph of the affidavit avers that defendant’s two notes and one made by Charles Reif, Jr., were delivered to plaintiff by the street railway company in payment of a $1,200 claim of plaintiff against said company; that the notes were delivered to plaintiff with the express understanding and upon the condition that plaintiff, as part consideration therefor, would return to said street railway company certain promissory notes, including one. made by R. L. Davis for $1,000 which plaintiff had theretofore received and accepted on account of its claim, and that plaintiff has heretofore refused and still does refuse to return said notes, although often requested so to do, and has since endeavored to negotiate and collect said notes, “but affiant has been unable to ascertain the amounts and names of the makers of said notes other than the Davis note, or whether or not said notes have been paid.” The defendant made the notes in suit in favor of the plaintiff but for the benefit and accommodation of the street railway company, and delivered the notes to the secretary of the latter named corporation. It is to be presumed that the secretary of said corporation would make a proper record of said notes and that he would bring the same before the board of directors or managers of his corporation and that the notes were' properly delivered to the plaintiff to pay its claim against the street railway company. Therefore, we do not see that the affidavit furnishes sufficient facts to enable the court to say that the defendant is at all concerned in seeing that the plaintiff returns to the railway company the Davis and other notes not identified. For all that we can see the latter corporation may be left to look after those notes and protect its own interests.

The next paragraph avers that the plaintiff, prior to the execution of defendant’s notes, on October 10, 1907, for value received, assigned $1,000 of its claim of $1,200 against said street railway company to one Perkins, who has ever since been the owner and holder of that amount of plaintiff’s claim. We consider this averment a bare legal conclusion. It does not furnish a copy of the alleged assignment, ñor is the substance of it given. In short, no facts are furnished upon which a' court can determine that the plaintiff lawfully assigned to Perkins $1,000 of its claim. If such assignment was made, the entity, the corporation did not make it. If made at all, we should be informed who acted for the plaintiff. Was it the board of directors, or an agent, or an attorney in fact? Perhaps if the facts were all before us it might appear that the alleged assignment was made by someone without authority to bind the plaintiff.

It is next averred that the plaintiff is not an innocent holder of said notes for value in the usual course of business, and that the notes are without consideration and were obtained in fraud of the rights of the defendant, and said street railway company. We have already said all that seems necessary in regard to the consideration and the way the notes came into the possession of the plaintiff.

As to the allegation of fraud, it is a bare assertion not resting on sufficient facts to enable us to say that there was fraud in the transaction.

Fraud is never presumed but it múst be clearly proved: Jones v. Lewis, 148 Pa. 234, and cases therein cited.

We are constrained to hold that the affidavit of defense is not sufficient to prevent judgment. Judgment affirmed.


author: Per Curiam,

text:
    Kinsella v. Allegheny Loan & Trust Company, Appellant.
    May 14, 1908:
    Argued April 28, 1908.
    Appeal, No. 133, April T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1905, No. 932, on verdict for plaintiff in case of Mary Kinsella v. The Allegheny Loan & Trust Company and H. Thomas.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver,'JJ.
    Affirmed.
   Per Curiam,

This case is ruled by our decision in the case of Mary Patton against the same defendants, post, p. 296.

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


text:
    Patton v. Allegheny Loan & Trust Company, Appellant.
    . Appeals — Assignments of error — Rule XV — Charge—Answers to points —Paper-books—Exceptions.

    When error is assigned to the charge of the court, or to answers to points, the part of the charge, or the point and answer referred to, must be quoted totidem verbis in the assignment.
    An appeal will not be considered where the charge of the court is not printed in the appellant’s paper-book, and where the record as printed fails to show that any exception was taken to the charge or to the answers to the points, or that any request was made before verdict to have the charge and answers to the points filed.
    Argued April 28, 1908.
    Appeal, No., 132, April T., 1908, by defendants, from judgment of C. P. No. 1, Allegheny Co., March T., 1905, No. 931, on verdict for plaintiff in case of Mary Patton v. The Allegheny Loan & Trust Company and H. Thomas.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    Trespass against the defendants as joint tort feasors, for wrongfully taking and carrying away plaintiff’s goods. Before MacFarlane, J.
    Verdict and judgment for plaintiff for $106.
    On a rule for a new trial MacFarlane, J., filed the following opinion:
    The testimony was not reported in this case, but the questions here raised were raised and argued at the trial and I had no doubt at that time that this was a case of a joint tort, and the argument and brief of counsel has not convinced me to the contrary. The declarations are for the taking and carrying away the goods of the plaintiffs, and the actions, were not for an unlawful sheriff’s sale, but for the loading of the plaintiff’s goods upon wagons and carrying them away after a sheriff’s sale. The jury found that one of the plaintiffs had brought the contents of the barn at the sheriff’s sale, but that notwithstanding this in his absence the defendants carted them away and that they also removed the goods of the mother and the daughter to which the defendants were in no way entitled.
    May 14, 1908:
    Had the jury found that the testimony of the defendants’ witnesses was true we would not have this motion, and we must dispose of the case upon the finding of the jury, which was that the plaintiff’s contention that there was a joint tort was substantiated. The motions are overruled.

      Errors assigned were in the following form:
    1. The court erred in assuming jurisdiction in this case.
    2. The court erred in not granting a nonsuit or rendering binding instructions for the defendants.
    3. The court erred in submitting this case to the jury when two joint alleged tort feasors committed torts at separate times and under different circumstances, which torts were separate and distinct as to each joint tort feasor.
    4. The court erred in refusing defendants’ second and third points.
    5. The court erred in not rendering judgment non obstante veredicto.

      J. D. Hern, for appellant.

      J. Chas. Dichen, for appellees.
   Per Curiam,

The assignments of error are defective in that they fail to conform to the requirements of rule XV, that when the error assigned is to the charge -of the court, or to answers to points, the part of the charge or the point and answer referred to, must be quoted totidem verbis in the assignment.

Even if the assignments^ were in due form, they could not be considered, because the charge of the court is not printed in the appellant’s paper-book, and further because the record as printed fails to show that any exception was taken to the charge or to the answers to the points, or that any request was made before a verdict to have the charge and answers to the points filed.

Further, if the case were properly before us for review upon the merits the opinion of the learned judge below shows quite clearly that the verdict and judgment in favor of the plaintiff, upon the theory that the defendants were joint trespassers, were warranted by the evidence.

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


text:
    Patton v. Allegheny Loan & Trust Company, Appellant.
    May 14, 1908:
    Argued April 28, 1908.
    Appeal, No. 134, April T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1905, No. 933, on verdict for plaintiff in case of John Patton v. The Allegheny Loan & Trust Company and H. Thomas.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Per Curiam,

This case is ruled by our decision in the case of Mary Patton against the same defendants, ante, p. 296.

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


text:
    Moxham and Ferndale Bridge.

      Bridges — Freeing of bridge — Examination of witnesses — Timely request for examination of witnesses — Act of May 8, 1876, secs. 3, 4, P. L. 131.
    Under the Act of May 8, 1876, P. L. 131, relative to the freeing of toll bridges and providing that “it shall be the duty of the court and grand jury, if requested, to hear and examine witnesses for and against,” the confirmation of the report, timely request' must be made in order to entitle the party making it to such a hearing as a matter of. right. If no such request is made until after the report has been approved by the court and grand jury, the appellate court will not review the discretion of the lower court in refusing the request; and this is especially the ease where the paper in which the request was made contained no averment of any excuse for not presenting it before, and it does not appear from the record that the court refused to hear witnesses on behalf of the appellant, or to consider testimony that was presented in depositions.
    Argued May 4, 1908.
    Appeal, No. 98, April. T., 1908, by the Moxham and Ferndale Bridge Company, from order of Q. S. Cambria Co., Sept. T., 1906; No. 108, dismissing exceptions to report of viewers, In re Condemnation of Moxham and Ferndale Bridge.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of viewers.
    The court dismissed the exceptions, filing the following opinion:
    The report of viewers in the above-stated proceedings was filed in this court, December 5, 1906; was presented to the court on that day for approval, and then laid before the grand jury for appropriate action. The report was approved by the court nisi on the day when presented, and in the decree it was directed that unless exceptions be filed to the report, or an appeal taken from the award of damages, within thirty days from that date, the report should be approved absolutely, etc. The report was returned to the court by the grand jury, with its approval on December 6, 1906, and on the same day, but subsequent to the report of the grand jury, a request in writing was filed by the counsel for the Moxham & Ferndale Bridge Company to be heard before the court and grand jury on the matter of the report of the viewers.
    At the time of filing the request counsel for the said bridge company stated to the court that he was satisfied the proceedings were irregular; that the report had not received the approval of the county commissioners, and that unless he was permitted to be heard as though the report of the viewers had not been confirmed by the court, his clients would suffer. Counsel was then and there informed by the court that in entering the nisi confirmation, the same was done with the reservation that the court would strike it off if inadvisedly or irregularly entered, and that the counsel for the said bridge company or his clients should not be prejudiced thereby.
    May 14, 1908:
    The grand jury did not adjourn until Friday, December 7, 1906, but at no time did counsel for the said bridge company ask leave to go before it, or have the report referred back for further consideration and hearing; and not since then has counsel for the bridge company expressed any desire to be heard before the court and grand jury concerning the question ,of approval of the report of viewers.
    The position taken by the counsel for the bridge company that the county commissioners were required to first approve the report before action by the court and grand jury, has been abandoned. The court has not refused or denied to said bridge company, or its counsel, a hearing before the court and grand jury, and there is nothing before us now, either by way of exception or argument, which would indicate any reason or cause for such hearing. The proceedings appear to be regular in every particular, and our attention is not called to any matter, if the report were now before us upon hearing, which should induce us to withhold our approval.
    And now, August 6, 1907, the exceptions heretofore filed ■are dismissed at the cost of exceptants, and the nisi confirmation heretofore entered is made absolute.

      Error assigned was the order of the court.

      Percy Allen Rose, with him Forest Rose and W. Horace Rose, for appellant.

      Frank P. Barnhart, with him Charles C. Greer, for appellee.
   Per Curiam,

Section 3 of the Act of May 8,1876, P. L. 131, relative to the acquisition by counties of bridges erected over rivers, creeks and rivulets, and the abolition of tolls thereon provides, that if it shall appear to the court and grand jury that such bridge ought to be declared a county bridge, etc., the report of viewers shall be approved.

Section 4 provides as follows: “In their inquiry into the propriety of approving and confirming any report under this act, it shall be the duty of the court and grand jury, if requested, to hear and examine witnesses for and against the' same.” This means, of course, that timely request must be made in order to entitle the party making it to such hearing as matter of right. If the request be not presented until after the inquiry has been concluded and the report has been regularly approved, it then becomes- a discretionary matter and the action of the court regarding it will not be reversed except for abuse of discretion. The difficulty with the appellant’s case is that the docket entries, read consecutively, show that the request quoted in the first amended assignment of error was not made until after the report had been approved by the court and grand jury. According to the history of the proceedings given in the opinion of the learned judge below, the order of the docket entries, as they appear in the record, accords with the fact, and there is nothing to show the contrary. Further, the paper in which the request was made contained no averment of any excuse for not presenting it before. Under the circumstances the court cannot be convicted of error in law or abuse of discretion in not making any specific order regarding it. The court was not bound to refer the report back to the grand jury, and the record fails to show that the court refused to hear witnesses on behalf of the appellant, or to consider testimony that was presented in depositions.

The order dismissing the exceptions and confirming absolutely the report of viewers is affirmed.


text:
    Clarion County, Appellant, v. Clarion Township.
    May 14, 1908:

      Constitutional law — Title of act — Special legislation.

    The Acts of April 20, 1905, P. L. 237, and April 25, 1907, P. L. 104, relating to appropriation of turnpikes for public use free of tolls, and the maintenance thereof by counties, cities or boroughs, are constitutional.
    Argued May 6, 1908.
    Appeal, No. 233, April T., 1908, by plaintiff, from judgment of C. P. Clarion Co., May T., 1908, No. 11, for defendant on case stated in suit of Clarion County v. Clarion Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine the liability of a township for the repair and maintenance of an abandoned turnpike road.
    The court in an opinion by Wilson, J., entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant on the case stated.
    J. T. Beinsel, for appellant.

      W. D. Burns, for appellee.
   Per Curiam,

The. general question for decision in this case is whether or not it is the duty of Clarion county to repair and maintain a portion of a certain turnpike that was condemned, for which condemnation damages were paid by the county. The decision of this question, it is conceded by counsel for appellant, depends upon the proper determination of the question whether the Act of April 20, 1905, P. L. 237, and the Act of April 25, 1907, P.L. 104, are constitutional. The court below decided both questions in the affirmative. The precise question was decided by the Superior Court in February last, in the case of Commonwealth ex rel. v. Van Bowman et al., 35 Pa. Superior Ct. 410, upon appeal from the judgment of the court of common pleas of Cumberland county. That case was not reported at the time the present appeal was taken or argued; consequently it had not come to the notice of counsel. Nothing has been suggested in the argument which was not fully considered in the decision referred to, and we see no occasion to add anything to the opinion rendered by our Brother Henderson in that case.

The judgment is affirmed.


text:
    Gain, Appellant, v. Steinberger.

      Judgment — Opening judgment — Sheriff’s interpleader — Bond—Principal and surety.

    An order opening a judgment entered for want of an affidavit of defense in an action upon a bond given by the surety of the claimant of goods that had been levied upon by the sheriff, upon an execution against another person, will be sustained by the appellate court where it appears that it has not been determined finally by the proper tribunal in a pending issue that the goods are not the claimant’s.
    Argued May 7, 1908.
    Appeal, No. 16, April T., 1908, by plaintiffs, from order of C. P. No. 2, Allegheny Co., April T., 1907, No. 579, making absolute rule, to open judgment in case of H. L. Gain and E. S. Romine, trading as Gain & Romine, v. Jacob Steinberger.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Superior Court states the case.

      Error assigned was order opening the judgment.

      C. S. Crawford, for appellants.

      John S. Ferguson, for appellee.

      May 14, 1908:
   Per Curiam,

This is an appeal from an order opening (not striking off as erroneously set forth in the assignment of error and assumed in appellant’s argument) a judgment for want of an affidavit of defense in an action upon a bond given by the surety of the claimant of goods that had been levied upon by the sheriff, upon an execution against another person. The judgment was entered on March 22, 1907, and at that time, it is alleged in the statement of claim, a verdict and judgment had been entered in favor of the defendant and against the claimant in. the interpleader proceedings in which the bond was given. But it is not alleged in the statement that any verdict or judgment was entered assessing the value of the goods and chattels. Moreover, we learn from the opinion of the court below that after the judgment on the bond had been entered the court vacated the judgment in the interpleader issue, and granted a new trial because the jury did not determine by their verdict the value of the goods levied upon. It was stated upon the argument that the rendition of verdict and the entry of judgment in the interpleader, the entry of judgment upon the bond, the vacation of the former judgment, and the application to open the latter judgment, all occurred within the same term. The bond being conditioned to pay, if the claimant “shall fail to maintain its title to the goods and chattels levied upon,” it would be manifestly inequitable, and contrary to the true intent and meaning of the condition, to compel the defendant to pay the amount of the bond, or the value of the goods, before it has been finally determined by the proper tribunal in the pending issue that the goods are not the claimant’s. We entertain no doubt of the power of the court to prevent such manifest injustice by opening the judgment at the time it did.

The order is affirmed at the costs of the appellants.


author: Beaver, J.,

text:
    Kalin v. Wehrle, Appellant.

      Appeals — Assignments of error — Evidence.
    An assignment of error to the admission of evidence will not be considered where the assignment does not quote the question .or offer, the ruling of the court, the testimony admitted, or contain a reference to the page of the paper-book where the matter may be found in its regular order in the printed evidence.

      Appeals — Assignments of error — Remarks of counsel — Record.
    An assignment of error relating to alleged improper remarks of counr sel will not be considered where the remarks have not been brought upon the record in any way, and it does not appear that the attention of the court was called to them, or that any ruling was made in relation to them.

      Practice, C. P. — Jury—Witness as juryman — Continuance—Discretion of court.

    It is a matter within the discretion of the trial court whether á case shall be continued, because one of the witnesses was in attendance upon the court as a juryman in the same panel from which the jury trying the case was selected.

      Practice, C. P. — Trial—Request for instructions.

    If a party desirés specific directions as to any particular phase of.the case being tried, he should embody his desire in a request for su.ch instructions. If he does not do so he cannot allege as error omissions of the court to call the jury's attention to matters which he might have embodied in points for charge. : •

      Statute of limitations — Fraud—Discovery of fraud.

    Where a claim for money is based upon the alleged fact that the money was fraudulently taken from the possession of its owner, the statute of limitations does not begin to run against the claim until the time of the discovery of the fraud.
    Argued April 16, 1908.
    Appeal, No. 145, April T., 1908-, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 89, on verdict for plaintiff in case of Theresia W. Kalin v. Andrew Wehrle.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit for money alleged to have been stolen. Before Brown, P. J.
    The court charged in part as follows:
    This is an action brought by Mrs. Kalin against her brother, Mr. Wehrle, to recover $672.50, with interest from about January 25, 1891. She alleges that that sum of money was in her possession in the home where they both lived, and on Sunday, while at church, it was taken by the defendant.
    He admits that he took the money, but he alleges that it was partnership money. She insists that it was her own money. He alleges that there was no concealment about the taking of it; that the next day he told his sister about it. That is his story. He further sets up two lines of defense to the recovery of this money. First, that he has paid the amount to his sister; that it was partnership money, and in a partnership settlement made some time in July, 1891, that this money which is claimed by the sister to have been taken from her bureau was actually included in a settlement. He also alleges that the plaintiff cannot recover because her claim is barred by the statute of limitations.
    First, as to the statute of limitations. We have a law in Pennsylvania that where one claims another is indebted to him he must bring his action within six years from the time it became due, and if he failed to do that it is a bar to recovery — not upon the ground that it is paid, but upon the ground of a legal payment.
    The policy of the law with regard to the statute of limitations is based upon the idea that important witnesses may die or important papers may be lost. If you want to collect a debt, you must bring your action within six years. If you do not, then you run the risk of having the defendant set up the fact that it is more than six years old, and that, therefore, there can be no recovery. That is the law in Pennsylvania, and that is the law that governs business under certain conditions.
    The law, however, is fair, and as against that the law says if the failure to bring the action within six years from the time the money was taken was the result of some fraud perpetrated by the defendant, some act of his, an act of concealment, some criminal act, covering it up from her and putting it in such shape that she could not determine whether he was the right party, and she did not learn with certainty that he was the right party until twelve years after, then the six years is not a bar. The six years would not be a bar here if she did not actually get knowledge that he was the party until twelve years afterwards, because that brought it down to about 1903. This action was brought in 1903, so that it then would have been brought in time. If she knew within six years from the time she lost it that that money was taken by her brother, if the testimony satisfies you that she knew that, but failed to bring the action, that is a bar to her claim here. If she did not know it, by reason of concealment on his part, not only concealing it himself, but getting others to conceal it for him — if this whole line of conduct was concealment — then she would- have six years from the time of discovery within which to bring suit. If that is the situation, then she brought this suit in time.
    Verdict and judgment for plaintiff for $1,344.50. Defendant appealed.

      Errors assigned were in the following form:
    First Assignment of Error: The court erred in permitting appellee to testify to matters contained in a memorandum -which was not made by the appellee, or at her direction.
    Second Assignment of Error: The court erred in permitting counsel for the plaintiff, in the course of his address to the jury, to make the following remarks, which the court did not correct:

      (a) “The defendant denied in his affidavit of defense filed that he took the money, and afterwards admitted that he took it.”

      (b) Also, “That the affidavit of defense was not a denial of the statement of claim, and that there was only a technical denial,” when in fact the original affidavit of defense as filed was a complete denial and defense to the statement, which statement erroneously set forth the date as being January 25, 1901, instead of January 25, 1891, which mistake on the part of the 'plaintiff was subsequently corrected, and which change compelled defendant to file an amended affidavit of defense, ■which should not have been commented upon before the jury.
    (c)'' Also in commenting to the jury upon the alleged statements of the mother of both plaintiff and defendant, who was not a witness at the trial (whose testimony was therefore hearsay), and also the statement which implied that plaintiff was not of good character or honest, by using the following language: “That the poor old mother, who was dead, did not want the defendant sued, which would have made him out a thief, and that is the reason that this suit was nevér brought ■before, and many people come into court looking very innocént, and yet they are thieves at heart.”
    >" (d) The improper and irrelevant remarks of counsel for the plaintiff unduly prejudiced the minds of the jury.
    Third Assignment of Error: The court erred in refusing appellant’s motion for a continuance of the case for the reason that the material witness for appellee, Fred Schwitter, who is a brother-in-law of the appellee, was also a juryman in tie same panel, which motion and the refusal of the same is as follows :
    “And now, to wit: September 16, 1907, on motion of Hern and Leahy, attorneys for defendant, the above case is postponed until the present jury panel is finished, on account of Fridolin Schwitter being a juryman, No. 50, on said panel, and' ■is also a witness for the plaintiff in this case. ' That’ on account of the same, there may be some question as to the fairness of the trial. Refused.
    Fourth Assignment of Error: The court erred in failing to call the jury’s attention to the many inconsistent and' contradictory statements of the appellée concerning her knowledge of the time at which the money was taken.
    Fifth Assignment of Error: The court erred in permitting a recovery on a sum in excess of $200 and interest, as appellee testified this was the only money she had of her own and the rest of the money was partnership funds.

      J. D. Hern, with him W. H. Leahy, for appellant,

      May 14, 1908:

      Thomas M. Marshall, Jr., for appellee.
   Opinion by

Beaver, J.,

■ The appeal here is from a judgment entered upon a verdict rendered by a jury against the defendant in an action of assumpsit to recover money alleged to have been stolen by the appellant, from the appellee more than twelve years before the date of suit. '

There are five alleged assignments of error, none of which can be sustained. The first is thus stated: “The court erred in permitting appellee to testify to matters, contained, in a memo^ randum which was not made by the appellee, or at her direction.” This assignment is in violation of Rule XVI: “When the error assigned is to the admission or rejection,of evidence, the specification must quote the questions or offers, .the ruling of the court thereon, and the testimony, or evidence admitted, if any, together with a reference to the page of the paper-book where-the matter may be found in its regular order in the printed evidence or notes of trial.’.’ .Not one of the requirements of this rule has been complied with and, upon an examination of the printed testimony, we find that no exception to the ruling of the court was taken. This assignment, therefore,- is disregarded.

The second assignment relates to remarks alleged,to have been made by the counsel for the plaintiff, in his address to the jury. These remarks have not been brought ,upon the record in any way, nor does it appear .that the attention of the court was called to them, or that any'ruling was made in relation thereto. None . of the requirements of Holden, v. Penna,. Railroad Co., 169 Pa. 1, and 'subsequent cases, were, complied with. There is nothing,, therefore, before us for consideration.,

In the third assignment, it is alleged that one of the plaintiff’s witnesses was in attendance upon the court as a juryman in the same panel from which the jury trying the case was selected. A motion was made by the defendant to continue the case for that reason, alleging “that, on account of the same, there may be some question as to the fairness of the trial.” The motion was refused. There does not seem to have been any exception to the action of the court in refusing the motion, and, if there had been, this was a question which was entirely within the discretion of the court.

The fourth and fifth assignments of error relate to alleged omissions of the court “in failing to call the jury’s attention to the many inconsistent and contradictory statements of the appellee concerning her knowledge of the time at which the money was taken,” and, “in permitting a recovery on a sum in excess of $200 and interest, as appellee testified this was the only money she had of her own, and the rest of the money was partnership funds.” .If the appellant desired specific directions as to any particular phase of the case, he should have embodied his desire in a request for such instructions. There were no points for charge presented. In the absence of request for specific instructions, we think the whole case was fairly covered by the charge of the court.

Although the question of the application of the statute of limitations is not raised by the assignments of error, it is argued by the appellant and could have been raised by his exceptions to the charge of the court. If the case is subject to the provisions of the Act of March 27,1713, sec. 1,1 Sm. L. 76, the charge of the court fully covers the case. If any fraud had been practiced upon the plaintiffs, so as to mislead her as to her rights in the premises, the statute would not apply, at least until the time of the discovery of such fraud: Claghorn’s Estate, 181 Pa. 608; Smith v. Blachley, 198 Pa. 173.

The appellant’s writ might well have been quashed, in view of the irregularity of the assignments of error and the absence of exceptions to the rulings of the court below, but, in the absence of a motion to quash and in view of all the facts of the case, we prefer to rest our judgment upon an unqualified affirmance.

Judgment affirmed.


author: Beaver, J., Opinion by Beaver, J.,

text:
    Engle v. Luzerne County Gas Company, Appellant.
    , Waters — Obstruction of stream — Overflow of banks — Gas pipe — Gas company — Question •for jury — Negligence.
    In an action by an owner of property in a house against a gas company to recover damages for injuries to the property by the backing of water on the property from a stream, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the municipality in which the property was situated had provided a sufficient vent under a city bridge, but that the defendant had suspended a gas pipe of from four to six inches in diameter between the bed of the stream and the bottom of the bridge, and that this pipe at a time of high water caught the debris, and backed the water on plaintiff’s premises causing the injuries for which suit was brought.
    In such a case if the pipe contributed in any substantial way to the damage, it was sufficient to make the defendant liable; and this is so even if the flood was an extraordinary one.
    Argued March 3, 1908.
    Appeal, No. 8, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., Jan. T., 1904, No. 150, on verdict for plaintiff in case of John Engle v. The Gas Company of Luzerne County.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to property. Before Halsey, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $200. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendants, and answers to various points.

      James L. Morris, with him J. B. Woodward, for appellant.—
    The presumption at the very outset of the case existed in favor of the appellant that there was no negligence in the design or construction of the pipe line, or in the act of appellant in placing it beneath the bridge.

      April 20, 1908:
    It was part of the appellee’s case to overcome this presumption and to prove that the appellant had not located the pipeline with proper care and skill, having regard to landowners above and below, and had not provided or left a proper vent for the ordinary waters of the stream. It was necessary that the appellee should do this in order to be entitled to recover: Berninger v. Sunbury, etc., R. R. Co., 203 Pa. 516; Ry. Co. v. Gilleland, 56 Pa. 445; Livezey v. Philadelphia, 64 Pa. 106; B. & O. R. R. Co. v. Sulphur Springs School Dist., 96 Pa. 65.

      James L. Lenahan, with him T. M. Herbert, for appellee.—
    The case was for the jury: Ry. Co. v. Gilleland, 56 Pa. 445; Helbling v. Cemetery Co., 201 Pa. 171.
   Opinion by

Beaver, J.,

Two suits were tried before the same jury, one brought by the wife' of the plaintiff against the defendant, for damages done to her house and lot; the other, which we have for consideration on appeal, brought by the plaintiff against the defendant, for damages to personal property contained in and about the house. Whatever the result of the suit by the wife may have been, it is not before us.

There is no exception to the charge of the court relating to the measure of damages alleged to have been sustained by the parties to these two suits respectively.

The locus in quo, so far as its general features are concerned, is the same as that referred to in Keats v. Gas Co. of Luzerne County, 29 Pa. Superior Ct. 480. The main facts of that case are similar to those upon which the present case rests, at least so far as the flood of 1901 is concerned. The claim here, however, is based upon the conditions which prevailed not only in the flood of 1901, but also a similar one of 1903.

The appellant fails to furnish us, in its paper-book, with a copy of the draft which was in evidence. This is a very serious omission, as it is essential to a proper understanding of the case. In our study of the case, however, we have constructed a crude map of our own and think we have reached a proper understanding of the facts.

A stream, known as Solomon’s Creek, rising in the mountains east of Wilkes-Barre, flows westward to the north branch of the Susquehanna. In its course, it crosses certain streets of the city of Wilkes-Barre practically at right angles. The street upon which the Engle house and lot front is Barney street. East of that and nearer the mountains is Regent street, and farther east Franklin street. West, and next below, is Waller street. Bridges cross the stream at all of these streets. At Franklin street, farthest east, is a bridge with an opening thirty-two feet between the abutments and 8.4 feet from the bed of the stream to the girders of the bridge. At Regent street, the abutments are thirty-six feet apart and the height from bed to bridge 8.7 feet. At Barney street bridge, the abutments are twenty-eight feet apart and the distance from bed to bridge is 10.4 feet. At Waller street, the distance between the abutments is not given, but the height from bed to bridge is 8.9 feet. It will thus be seen that the area for the vent of the water of this stream, under all circumstances, was greater at Barney street than at either Regent or Franklin streets next above it on the stream. At Barney street, however, at a distance of four feet and four inches below the bottom of the bridge, and three feet and six inches above the ordinary water line, was a six-inch gas pipe, belonging to the defendant company, which crossed the stream.

On both occasions, of which the plaintiff complains, the water and debris which came down the stream were carried under the bridges at Franklin and Regent streets without difficulty, but the debris was caught against the gas pipe of the defendant, which was braced from the bridge so as to resist pressure from above. This created a dam which prevented the flow of the water, caused it to back up beyond the Engle house and turned it through their lot and through other lots on the other side of the stream. The water thus carried outside of the stream was returned to it before the bridge at Waller street was reached, and through it was vented in the ordinary way. There was some testimony of water overflowing the banks in the neighborhood of Regent street, but the amount was apparently inconsiderable.

The damage to the Engle house and lot, including fences and personalty, was evidently occasioned by the backing of the water from the dam, caused by the collection of debris— trees, ties, doors, barrels, brush and whatever was brought down the stream — which found a lodgment against the gas pipe. It is very clear, therefore, that not only was the damage to house and lot and their contents occasioned by the backing of the water from the dam under the Barney street bridge., but that there was sufficient capacity to vent everything which came'down the stream through that bridge, as through the bridges above it, but for the maintenance of the defendant’s gas pipe practically midway between the floor of the bridge and the bottom of the stream.

Was the construction and maintenance of this pipe, under the circumstances, negligence? As to that question, the court below said:

“Now, the first inquiry that you will have to make, gentlemen of the jury, is what was the cause of this flow of water over and out of the banks of Solomon’s Creek, and down upon the Engle property. Was it because of the lack of ordinary care on the part of the defendant here in the construction and location of the gas pipe across the creek under the Barney street bridge? You will recall, gentlemen of the jury, that the gas pipe was three feet six inches above the water; that it was four feet four inches below the girder of the bridge. Was that a reasonable construction, was it carefully constructed, was it such a construction under the circumstances as would be proper there at that locality? Negligence is want of care according to the circumstances. You have the circumstances, and I have endeavored to give you the rule, and you must reach a conclusion, gentlemen of the jury, as to whether or not there was any negligence there at that time by this defendant company, at either of the times, in December, 1901, and in October, 1903.” This is not assigned for error and was, we think, a clear and fair statement of the question of the negligence of defendant.

This record raises none of the questions which were passed upon in Keats v. Gas Co., 29 Pa. Superior Ct. 480. That case was reversed, first, on the ground that relevant testimony, as to the conditions of weather, rainfall, etc., which- existed at the time, had been excluded, and that the instruction of the court in regard to the measure of damages was inadequate. It was recognized there, however, as we think it must be here, that there were questions of fact to be submitted to the jury, and in that case we granted a new venire.

Out of the twelve assignments of error, ten are based upon negative answers by the court, in which, for various reasons, the court was asked to instruct the jury that the verdict must be for the defendant. The twelfth relates to the overruling of defendant’s motion for judgment n. o. v., and the eighth is “Under all the evidence, the flood of December, 1901, was an extraordinary flood and the plaintiffs cannqt recover for any damages done at that time,” which was also negatived.

The case was clearly for the jury. The verdict was reasonable and no assignments, based upon exceptions to the admission of testimony or to the general charge of the court, are presented. We might well content ourselves, therefore, with a. general dismissal of the remaining assignments, in all of which the court was asked to take the case from the jury, but a brief review of the two questions which the appellant presents for consideration, as raised by points for charge and the answers thereto, of which it complains, will not be out of place. They are as follows:

First. Was there established on the trial of the cause such negligent construction and maintenance, for which the appellant was responsible, as of itself to be sufficient to cause the damage complained of?

Second. Was the damage complained of caused, in either the December, 1901, or October, 1903, overflow, by an extraordinary flood?

As to the first proposition, we have already disposed of the question of negligence, but aside from that the question propounded is faulty in this: that it imposes upon the plaintiff a duty which was not incumbent upon him. It was not necessary to show that the construction and maintenance, for which the appellant was responsible, was of itself sufficient to cause the damage. complained of. If it contributed in anyway to the damage,, it- was sufficient to make the defendant liable.

. The municipality, whose duty it was to provide for the passage of the water of' Solomon’s Creek, and whatever of debris might , come .down with it, had made such provision. That the provision was ample is shown by the fact that both the Franklin street and Regent street bridges afforded full vent not only for the water,, but the debris which came down the stream. The Barney street bridge, having larger capacity for the passage of both water and floating material, was where the damage occurred, and, by all the testimony in the case, the overflow was caused by the presence of the pipe against which the debris coming down the stream formed a dam. The defendant has not shown, from the municipality any right to maintain the pipe as it was and, even if the right, had been given it to occupy the.streets, this clearly would not have conveyed the right.to suspend a pipe, variously stated to be four and six inches in diameter, midway between the bed of the stream and the bottom of the bridge. That the appellant itself expected pressure from above is shown by the fact that the pipe was braced from below. It may be conceded that the construction and maintenance of the gas pipe would not of itself be .sufficient to cause the damage complained of, but that is not the question here. Of course, if there had been no high water and no.debris carried by the water, there would have been no. damage, but, if the act of the plaintiff in maintaining the pipe, taken ip. connection with the flood, caused the damage, it is liable, even assuming that the flood was an extraordinary one.

The doctrine .in regard to this question is laid down in B. & O. R. R. Co. v. School District, 96 Pa. 65, in which the late Chief Justice Green said; “We apprehend that the concurring negligence, which, when combined with the act of God, produces the injury,.must be such as is in-itself a real producing cause of the injury, and not a merely fanciful or speculative or: microscopic negligence which may not .have been in the least degree the cause .of the injury. In other words, if the act of God in this particular case was of such an overwhelming and destructive character, as by its own force, and independently of the particular negligence alleged or shown, produced the injury, there would be no liability, though there were some negligence in the maintenance of the particular structure. To create liability it must have required the combined effect of the act of God and the concurring negligence to produce the injury:” Helbling v. Cemetery Co., 201 Pa. 171; Rife v. Middletown, 32 Pa. Superior Ct. 68. This was practically what the court charged and is not assigned for error.

It is very clear from the testimony that the flood would have caused no injury whatever to the plaintiff, except for the presence of the pipe maintained by the defendant, becausé the other bridges above, with less vent for the water, safely discharged that and all that it carried. The testimony is clear, and practically uncontradicted, that the pipe was the real cause of the injury; that it caught the debris coming down the stream and piled it up in such a way as to back the water upstream, so as to flow around the plaintiff’s house.

This makes the discussion of the second proposition practically unnecessary, because, assuming that the flood of 1901 was extraordinary, the jury may have found, as they readily could, that the defendant contributed, if it was not alone liable therefor, to the damage occasioned the plaintiff by the damming of the waters of Solomon’s Creek.

As already stated, the case was clearly one for the jury and the judgment, entered upon its moderate verdict, should not be disturbed.

Judgment affirmed.

Petition for reargument.

Opinion by Beaver, J.,

July 16,1908:

The verdict of the jury in this casé éstáblished'two controlling facts, without which the court below distinctly said there could be no recovery: First, that the "construction and location,of the gas pipe across the creek under the Barney street bridge” was a negligent construction and that the defendant was responsible therefor; and, second, that this negligence contributed to the injury of which the plaintiff complains.

In regard to the latter proposition the court said: “Concurring negligence, which when combined with the act of God produces the injury, must be such as is in itself a real producing cause of the injury, and not a mere fanciful, speculative or microscopic negligence which may not have been in the least degree the cause of the injury. In other words, if the act of God in these particular cases was of such overwhelming and destructive character as by their own force and independently of the particular negligence alleged or shown, produced the injury, there would be no liability, though there were some negligence in the maintaining of the particular structure. To create the liability it must have required the combined effect of the act-of God and the concurring negligence of the defendant to produce the injury. In other words, if the negligence of the company conspired with the act of God to cause the injury, and the injury was due primarily to the negligence of the defendant, it is liable.”

In our consideration of the case, we referred to the facts upon which the petition for reargument dwells: “There was some testimony of water overflowing the banks in the neighborhood of Regent street, but the amount was apparently inconsiderable.” We, of course, relied upon the finding of the jury as to the facts of negligence and of the negligence being of such a character as to contribute to the injury. We can, therefore, see no particular merit in dwelling upon the testimony of the witnesses for the defendant as to the source of the water which caused the injury to the plaintiff, whether it came from Regent street above or by the damming of the water at the Barney street bridge below. The jury has settled that question, the testimony being of such a character that it was necessarily for their finding.

The petitioner alleges as a second reason for a reargument that the opinion of this court “ erroneously applies the doctrine of the decisions of the courts of this commonwealth relative to liability in cases of extraordinary flood, in that it holds that even when a flood is admitted to be extraordinary, as were admitted the floods complained of in this case, a jury may find a defendant liable for the trespass complained of, if the negligence alleged contributed to the damage occasioned to a plaintiff, without in itself being a real, producing cause of the injury.”

From the quotation of the charge of the court this is clearly disproved. The court went quite as far as the cases in holding that the negligence of the defendant must be a real producing, cause and not what is called a speculative or microscopic negligence which may not have been in the least degree the cause of the injury.

It seems to us that the case was fully covered by our former opinion, in view of the facts as found by the jury upon sufficient evidence, under the clear and explicit charge of the court submitting the questions involved for their consideration and finding. On a re-examination of the testimony, there does not seem to have been in our minds any misapprehension of its sufficiency or effect, nor any misapplication of the law, as we understand it and as it was clearly set forth by the court below.

Considering the case in its entirety, we see no occasion for a reargument, which is, therefore, refused.


author: Head, J.,

text:
    Blair, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passenger—Getting on car — Contributory negligence.

    The relation between carrier and passenger can only be created by contract, express or implied. The general rule is that any person whom a common carrier has contracted, expressly or impliedly, to convey from one place to another, in consideration of the payment of fare, or its equivalent, and who, in the course of the performance of such contract, has been received by the carrier under its care, either upon the means of conveyance, or at the point of departure of that conveyance, is a passenger.
    When a person enters a public conveyance, for example a street car at a place where such car regularly stops to receive and discharge passengers, he does so upon the invitation of the owner or operator of the car. If he desires to board such car at an unusual place and indicates his desire by an appropriate signal, and the signal be recognized and the car stopped or checked up to permit him to enter, the assent of the operator is again manifest and in either case the relation of carrier and passenger is created by the mutual acts of the parties; but where a car stops or slows down at an unusual place by reason of the exigencies of city traffic, and a person attempts to enter the car without the motorman or conductor knowing it, and in his effort to do so obtains an insecure foothold, and is thrown by the sudden start of the car, the railway company is not liable for his injuries, inasmuch as the person injured had not acquired the rights of a passenger.
    Argued Dec. 10, 1907.
    Appeal, No. 1, Oct. T., 1907, by-plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1903, No. 3,607, for defendant non obstante veredicto in case of Charles J. Blair v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,000. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      S. G. Birnie, with him George Henderson, for appellant,
    cited: Mallory v. Griffey, 85 Pa. 275; Bradwell v. Railway Co., 139 Pa. 404; Kingston Twp. v. Gibbons, 18 W. N. C. 334; Allen v. Warwick Twp., 9 Pa. Superior Ct. 507; Phillips v. Traction Co., 8 Pa. Superior Ct. 210; Walters v. Traction Co., 161 Pa. 36; Powelson v. United Traction Co., 204 Pa. 474; Boulfrois v. Traction Co., 210 Pa. 263.

      Thomas Learning, for appellee,
    cited: Bendon v. Union Traction Co., 26 Pa. Superior Ct. 539; Jennings v. Union Traction Co., 206 Pa. 31; Pitcher v. Street Ry. Co., 154 Pa. 560.

      July 15, 1908:
   Opinion by

Head, J.,

Just prior to the accident which injured the. plaintiff, he walked eastward along the south side of Race street, in the city of Philadelphia, to the southwest corner of Race and Ninth streets, intending to board a north bound car on Ninth street.

He was then sixty-nine years of age, but claims he was strong and active. He had been a sailor in his early days and, it is apparent from his testimony, relied with confidence on his ability to board even a moving car with safety. With a frankness that is somewhat unusual he says:-“I never wanted a car to stop for me altogether. I thought I could get on a car better when it was running — it just gently swings you on.”

He had traveled frequently on the Ninth street cars and admits he knew their regular stopping place, for the receipt and discharge of passengers was on the north side of Race street. When he reached the corner and looked south on Ninth street he saw a car the movement of which, towards its regular stopping place, had been impeded or checked by a dray or other vehicle. The car moved up slowly until its rear platform reached the crossing line of the south side of Race street when the plaintiff undertook to board it. Whether or not at that moment the car was moving or had come to a dead stop he will not say — and his evidence is all there is on that subject— the defendant offering no testimony whatever. The plaintiff succeeded in mounting the lower step of the car, was standing with one foot only on it and with the other raised to reach the, platform, when the car either started or accelerated its speed and this movement was attended, as he says, with several violent jerks. He carried an umbrella in his left hand, and in mounting the step had, with that hand thus incumbered, taken such grasp as he could of the stanchion on that side. Of his right hand which was free and of the supporting rail on that side he made no use whatever. By the movement of the car in the manner described whilst the plaintiff was in the insecure position indicated, he lost his. equilibrium and fell or was thrown to the street at practically the same point whence he started to board the car. There is no evidence whatever that the movement of the car caused even any inconvenience, much less any injury to any passenger seated or standing in the car; nor that plaintiff signaled the car to stop or gave notice in any way of his intention to board it; nor that either conductor or motorman had any knowledge that he was attempting to enter the car when it moved. We have already seen it had not yet reached its regular stopping place where those in charge would be under obligation to look out for passengers either entering or leaving the car.

The entire case of the plaintiff rests on the proposition that he was a passenger on the car of the defendant and that it was guilty of a breach of the obligation a carrier assumes to discharge towards a person who is accepted as a passenger. When and how, under the facts of this case, was the relation of carrier and passenger created between the parties? It must be manifest that such relation could not be brought about solely by the acts or efforts of one party to establish it without the knowledge or assent, express or implied, of the other party. This must be true because such relation is at bottom contractual. “The relation between carrier and passenger can only be created by contract, express or implied. . . . The general rule is that any person whom a common carrier has contracted, expressly or impliedly, to convey from one place to another, in consideration of the payment of fare, or its equivalent, and who, in the course of the performance of such contract has been received by the carrier under its care, either upon the means of conveyance, or at the point of departure of that conveyance, is a passengerMoore on Carriers, 541-543.

“A more correct definition of the word (passenger) in its legal sense would be, one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare or that which is accepted as an equivalent therefor. A mere trespasser, a person who steals a ride upon a train, or who is employed thereon, is not a passenger, etc.:” Penna. R. R. Co. v. Price, 96 Pa. 256.

When, therefore, a person enters a public conveyance, for example a street car, at a place where such car regularly stops to receive and discharge passengers, he does so upon the invitation of the owner or operator of the car. If he desires to board such car at an unusual place and indicates his desire by an appropriate signal, and the signal be recognized and the car stopped or checked up to permit him to enter, the assent of the operator is again manifest and in either case the relation of carrier and passenger is created by the mutual acts of the parties. But in this case the stop or slow down of the car was enforced by the exigencies of city traffic; there was no invitation to the plaintiff to attempt to enter it; no knowledge on the part of the defendant or its servants that he had tried to do so and in his effort had obtained an insecure foothold on the rear step of the car. Under such circumstances we are unable to see any evidence in the record to support the conclusion that there was any breach of an obligation due from a carrier only to one who had acquired the rights of a passenger. In Pitcher v. People’s Street Ry. Co., 154 Pa. 560, it was said': “The case then was that the car was about to start and the boy had not become a passenger, and had given no indication to the driver or conductor of his intent or desire to get on the car. How can it be, then, that the defendant neglected any duty which it owed to the boy in starting the car? If it was affirmatively proved that the driver or conductor saw him in the act of getting on, or if he had given them any kind of a signal or notice of his intent to get on, there would be room for an allegation of negligence in not giving him reasonable time to do so. But if they did not know of any such intent on his part, and there is no evidence that they or either of them ever saw him, what duty on their part was neglected? .... Assuredly the company was entitled to some kind of notice of his intent to assume the relation of passenger before being charged with the duty of taking care of him as a passenger.” This doctrine was approved in a later case on the same facts — Pitcher v. Ry. Co., 174 Pa. 402 — and, its application to the case at bar, must, in our judgment, be destructive of the plaintiff’s claim to-recover. The learned court below was therefore right in entering judgment for the defendant non obstante veredicto.

Judgment affirmed.


author: Orlady, J.,

text:
    Zajaczkowski, Appellant, v. Jawer.
    July 15, 1908:

      Judgment — Opening judgment — Discretion of court — Consideration— Blanks in note.

    A proceeding to open a judgment is an appeal to the equity- powers of the court; a judge, exercising the functions of a chancellor, is vested with the discretion to pass upon the weight of the evidence and credibility of the witness, and to dispose of the questions presented upon equitable principles. The action of the court below will only be reversed in such cases where the abuse of judicial discretion is apparent.
    ■The appellate court will not review the discretion of the lower court in making absolute a rule to open a judgment, where the defendant avers in his petition that the note on which the judgment was entered was without any consideration, was given to another party, was altered after delivery, and was not intended to create any liability, and the plaintiff in his answer merely avers that the note was given for a good and valuable consideration, without stating the consideration; and that blanks in the note left unfilled at the time of delivery, had been filled in afterwards in accordance with authority given by the defendant.
    Argued Dec. 10, 1907.
    Appeal, No. 194, Oct. T., 1907, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 2,034, making absolute rule to open judgment in case of Stanislaw Zajaczkowski v. A. E. Jawer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and BeaYER, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Superior Court states the case.
    • Error assigned was order making absolute rule to open judgment.

      B. D. Oliensis, for appellant.

      Alfred Aaron,, with him Henry N. Wessel, for appellee.
   Opinion by

Orlady, J.,

The court below made absolute a rule to open a judgment for $100, which had been entered on a single bill under' seal, dated May 3, 1907; which action by the court is the only error assigned. ;

The defendant alleges that when the note was. signed by him, the only entries in writing on the' printed- form" were "■$100.00,” and “May.3,” and that after delivery to one Bernard Mialistzkey, the name of the plaintiff was inserted as payee, and the words “dollars”’ “do empower,” “I,” “me,” and “ten” were inserted in the several blanks to make the note an intelligible writing and to provide for the amount of attorney’s commissions. The defendant further alleges; “that he received no consideration from the said Bernard Mialistzkey for the said note, and that it was not intended to create any liability against the petitioner.”

The answer filed by the plaintiff averred that the note was given to him by the defendant; that he had received a true, good and valuable consideration for'the same; and that the blanks, left unfilled at the time of delivery, were accompanied with authority to fill the blank spaces “in accordance with the purposes for which this note was given and. the purport thereof,” and that said blank spaces were filled out by virtue of said authority; and' that there was no alteration or change in the form as originally contemplated by the defendant when he executed the said note. ’

It is apparent on examination of the petition and- answer that the whole transaction is not disclosed, and that the plaintiff is designedly withholding the true facts in regard to it. Assuming that the petition was sufficient to warrant the court in granting the rule to open the judgment, the answer, as. filed by the plaintiff, is so manifestly evasive in not averring'the real consideration for the note, as well as the purpose of its execution, that the court below was fully warranted in treating the plaintiff’s judgment with suspicion. No testimony was taken, and in order to sustain the judgment, the court below would be expected to conclude, as a chancellor, that the- note was for a good consideration, and that the maker had directly or inferentially authorized the plaintiff to fill in the blank spaces as they are now presented. In order to arrive at this ■conclusion, the court should be impressed with the truth and frankness of the plaintiff’s answer, and we see no error in holding the plaintiff to a higher degree of proof and more specific statement of his claim than he submitted in reply to the defendant’s petition that the note was without any consideration, was given to another party, and was not intended to create any liability.

The court to which application is made to open a judgment, may judge the weight of the evidence and the credibility of the witnesses, and is not bound, even where there is a conflict of testimony, to send the case to a jury. The whole proceeding resolves itself into the exercise of a sound judicial discretion: Augustine v. Wolf, 215 Pa. 558.

A proceeding to open a judgment is an appeal to the equity powers of the court; a judge, exercising the functions of a chancellor, is vested with the discretion to pass upon the weight of the evidence and credibility of the witnesses, and to dispose of the questions presented upon equitable principles. The action of the court below will only be reversed in such cases where the abuse of judicial discretion is apparent. Where the allegation of forgery is involved, those principles apply with the same force and effect as in other cases: Ilyus v. Buch, 34 Pa. Superior Ct. 43.

The only question before us is whether the court below rightly exercised its discretion on the evidence before it, and applying the well-settled principles announced in the many cases decided in the Supreme and in this court, we see no error in making the rule absolute, and in allowing the parties to thrash out their mysterious controversy before a jury

The judgment is affirmed.


author: Porter, J.,

text:
    Brooke’s Estate
    (No. 1).

      Auditors — Compensation—Discretion of court — Surcharge of accountant — Counsel fees — Committee of lunatic — Lunacy.
    Where an auditor in passing upon a large number of exceptions to the account of a committee of a lunatic, takes testimony to the extent of 422 printed pages, and consumes forty days in taking testimony and in preparing his report, an allowance of $ 15.00 per day by the lower court will not be disturbed-by the appellate court.
    A committee of a lunatic will not be deprived of his right to compensation merely because he made some trifling mistakes in the management of the estate, without having been guilty of any serious misconduct, negligence or lack of good faith.
    A committee of a lunatic will be allowed reasonable compensation for fees paid to counsel employed to collect and preserve the property of the lunatic.
    A committee of a lunatic has no right to use the funds of the lunatic's estate to pay counsel for the purpose of procuring his own retention in the office of committee.
    Argued Dec. 10, 1907.
    Appeal, No. 147, Oct. T., 1907, by Victorine H. Brooke, from decree of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 3,968, dismissing exceptions to auditor's report in the estate of James Henry Brooke, lunatic.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Decree modified.
    Exceptions to report of Benjamin Daniels, Esq., auditor.
    The opinion .of the- Superior Court states the case.

      Errors assigned were in.dismissing exceptions to the referee’s report.

      Edwin F. Schively and Wm. W. Porter, with them Sidney E. Smith, for appellant. —
    The court below erred in refusing to disallow counsel fees to accountant, committee of the lunatic, amounting to one-third of the whole fund: Equitable Trust Co. v. Garis, 190 Pa. 544; Tarr’s Est., 10 Pa. Superior Ct. 554; Bloomer’s App., 25 Pitts. L. J. 73; Ashley v. Holman, 44 S. Car. 145.

      July 15, 1908:
    The learned court below erred in approving the auditor’s fee of $600 — nearly one-third of the distributable balance: Thomas’s Est., 1 Dauphin County Rep. 381; Funk’s Est., 1 Pa. C. C. Rep. 430; Wiest v. Koons, 2 Pa. C. C. Rep. 317; Vandermark’s Est., 16 Pa. C. C. Rep. 542; Miller’s Est., 8 Lane. L. R. 249; Bracken’s Est., 138 Pa. 104; Mesner’s Est., 1 Monaghan, 600; Fielemyer’s Est., 20 W. N. C. 72.
    The learned court below erred in allowing the accountant commissions of five per cent: Gelbach’s Est., 14 Pa. Dist. Rep. 51; Wood’s and Martin’s App., 86 Pa. 346; Heft’s Case, 22 Pa. C. C. Rep. 534; Simon’s App., 19 W. N. C. 94.

      George Henderson, with him Dilworth P. Hibberd, for appellee.
   Opinion by

Porter, J.,

.. This appeal is from the decree of the court below, dismissing ■ exceptions to and confirming the report of the auditor appointed to pass upon the exceptions filed by the appellant to the account of Samuel P. Tull, committee in lunacy of James Henry Brooke. The alleged lunatic having died on July 12, 1904, the appellant is interested as one of his heirs. The hearings before the auditor were numerous and protracted, the appellant pressed her exceptions with persistency, and the evidence which was produced and the auditor called upon to consider,when printed, makes a volume of 422 pages, which is presented as the appendix to the paper-book of the appellant in this case. The auditor was called upon to pass on many exceptions, covering a variety of items, and all the exceptions seem to have been pressed with equal earnestness. The consideration of the testimony and the preparation of the careful report of the auditor, taking the exceptions up in detail, necessarily re- . quired much time, and the statement of the auditor, in his report, that the taking of the testimony, the consideration thereof and the preparation of his report occupied his time for at least forty days, does not seem unreasonable. The court be- . low, after argument, decreed that the auditor was entitled to -.compensation at the rate of $15.00 per day, which under the statute it was vested with a discretion to do, and, after fully examining the whole record, we are not satisfied that the fixing of the compensation at that rate involved an abuse of discretion. We are not disposed to disturb the finding of the court below as to the amount of compensation to which the auditor was entitled, and the ninth specification of error is overruled. The appellant contends that the court below erred in refusing to impose the costs of the audit upon the accountant, but the record and the evidence do not present a case in which the trustee should be subject to such a penalty, and the eighth specification of error is dismissed. The evidence disclosed that the accountant may have made some trifling mistakes in the management of the estate, but it failed to establish any such misconduct, negligence, or lack of good faith, as would warrant the court in holding that he had forfeited his right to compensation for the services performed, and the tenth specification of error is dismissed.

The first, second, fifth, sixth and seventh specifications of error complain of the allowance to the accountant of the several amounts which he had paid to counsel in legal proceedings. The legal proceedings referred to by these specifications of error were undoubtedly carried on in the interest of the estate, for the purpose of collecting and preserving the property of the lunatic. The auditor reduced the amounts of some of these charges, allowing the accountant credit not for what he had actually paid, but for what the legal services were really worth. The accountant was entitled to the services of counsel in these proceedings, and we are not convinced that the amounts for which the auditor allowed the accountant credit, are more than a reasonable compensation for the legal services performed. The first, second, fifth, sixth and seventh specifications of error are dismissed.

This appellant had not, in the first instance, agreed to the appointment of Samuel P. Tull, as a committee of the estate of James Henry Brooke, her brother, the alleged lunatic, and some time after the appointment had been made she presented a petition to the court praying for the removal of Mr. Tull from the office of committee. The removal of Mr. Tull would not have taken the estate of the lunatic out of the custody of the court, the only effect would have been to substitute some other person as committee. It is manifest that the removal of Mr. Tull could have had no effect upon the quantum of the lunatic’s estate, nor could it have established any claim against the estate, nor deprived the estate of any demands which it might have upon others. The only question involved was who should act, as the'officer of the court and under its direction, in preserving the estate for the lunatic. Had Mr. Tull resigned or been removed the legal status of the estate would have remained unaffected by such change. When the petition was presented asking for his removal, he might have permitted the court to pass upon the question, without any aid from him, and the entire estate of the lunatic would have remained subject to the control of the court, unaffected by his retention in or removal from office. He elected to resist the effort to remove him from office. His reason for doing this he stated in his testimony, viz.: “He would not be driven out.” This, then, was simply a contest as to who should be committee of the estate of the lunatic. The appellee undoubtedly had a right to resist the effort to remove him, but those who engage in warfare of this kind must pay for their own ammunition. He had no right to spend the money of the lunatic for the purpose of employing counsel to keep himself in the position of committee. The learned counsel for the appellee argues, that if the accountant had been removed from the office of committee, the appellant might have procured the appointment of some “colorless” person as committee and the estate of the lunatic might have been sacrificed, but an apprehended danger of this nature does not warrant a trustee in appropriating the funds of the estate to the payment of the fees of counsel retained for the purpose of merely preventing his own removal from the management of the trust property: Yerkes’s Appeal, 99 Pa. 401. But where an attempt is made to remove an administrator of the estate of the decedent, he cannot appropriate -the money of the estate to the payment of fees of counsel retained to assist in his endeavor to show that his management of the estate has been proper and that he should be continued in office. Even an executor is not entitled to a credit in his account for the amount of fees paid to counsel for their professional services in trying an issue of devisavit vel non involving the validity of the will of his testator: Mumper’s Appeal, 3 W. & S. 441; Royer's Appeal, 13 Pa. 569; Clauser’s Estate, 84 Pa. 51; Reimer’s Estate, 159 Pa. 212. The question of the right of the committee of a lunatic to use the funds of the estate for the purpose of procuring his own retention in the office of committee does not seem to have been directly ruled in Pennsylvania, but it has been in other jurisdictions and- the conclusion reached is in harmony with the decisions of our own courts in analogous cases. It was said in In re Colvin, 4 Maryland Chancery Decisions, 126: “ The committee and receiver, as long as he fills those offices, will be, and has been, allowed all proper and reasonable fees paid to counsel for advice and assistance in the discharge of his duty, and in aiding him' to preserve and defend the estate. But beyond this he cannot go. If he chooses to carry on a litigation for his office, he must-pay the costs out of his own pocket. He holds the office out of the discretion of the court, and should a dispute arise in regard to the propriety of continuing him in it, or appointing some- one in his stead, the controversy must be conducted by the parties interested in the estate, and at their own expense.” The claim of the accountant of credit for $250 for fees paid to counsel in resisting the application for his removal from office should have been disallowed, and in that amount he must be surcharged. The third and fourth specifications of error are sustained.

The decree is modified, and it is ordered that the accountant be surcharged in the sum of $250, being the amount for which in his account' he takes credit as of June 13, 1903, for cash paid for services in rule to remove committee, and for arguing appeal in Superior Court. And it is ordered further that the costs of this appeal be paid by the appellee and that the record be remitted to the court below for further proceedings.