text:
    Pfoutz’s Case.

      Appeals — Assignments of error — Decree—Opinion of court — Amendment.

    1. Where an assignment of error to a decree of the orphans’ court does not recite the decree in so many words but only the opinion of the court allowing the decree, a second assignment of error in proper form and reciting the decree, if promptly printed in the appellant’s paper-book and presented at the argument, will be allowed to be filed as in the nature of an amendment to the original assignment.

      Marriage — Marriage license — Annulment of license — Orphans’ court jurisdiction.

    2. The orphans’ court has po jurisdiction to annul a marriage license after the marriage has been consummated.
    Argued April 20,1909.
    Appeal, No. 117, April T., 1909, by Dilmon Pfoutz and Ida May (Hough) Pfoutz, from decree of O. C. Fayette Co., Sept. T., 1908, No. 7, revoking a marriage license granted to Dilmon Pfoutz and Ida May, his wife.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Petition of William' Pfoutz to revoke marriage license granted to Dilmon Pfoutz and Ida May Pfoutz.
    The opinion of the Superior Court states the case.

      Errors assigned among others were (1) the opinion of the court concluding with the words “the prayer of the petitioner is granted,” and (4) the court erred in its order and decree revoking, canceling, and setting aside the marriage license, which order and decree, the exception taken thereto and the bills sealed therein are as follows, to wit:
    And now, October 12,1908, this matter came on to be heard and was argued by counsel. And now, October 15, 1908, after due consideration and for the reasons set forth in the above opinion, the court orders and decrees that the marriage license granted by the clerk of the orphans’ court of Fayette county, on August 7, 1908, at No. 20,440 to Dilmon Pfoutz and Ida May Hough be aiid the same is hereby revoked, canceled and set aside.
    The costs to be paid by Daniel L. Dillinger, committee' of Dilmon Pfoutz, said costs to be first approved by the court of common pleas of Westmoreland county.

      Albert 11. Bell, with him Alfred E. Jones, for appellant.
    The orphans’ court had no jurisdiction: Shollenberger’s App., 21 Pa. 337; Weyant v. Weller, 39 Pa. 443; Willard’s App., 65 Pa. 265; Ake’s App., 74 Pa. 119; Brinker v. Brinker, 7 Pa. 53; Guier v. Kelly, 2 Binney, 294; Boyer’s Est., 20 W. N. C. 207; Van Dyke’s App., 60 Pa. 481; Lee’s Est., 18 Pa. Superior Ct. 513.

      Jno. E. Kunkle, with him Edward E. Bobbins and W. J. Johnston, for appellees.
    July 14, 1909:
   Opinion by

Rice, P. J.,

This is an appeal from a decree of the orphans’ court revoking, canceling and setting aside the marriage license issued by the clerk of said court to the appellants. The appellee assigns seven reasons in support of his motion to quash the appeal. With regard to those which directly relate to or necessarily involve the certification of the evidence and the proceedings had upon the hearing, we remark that before the appeal came on to be heard in this court the judge filed in the orphans’ court the certificate contemplated by the Act of May 1, 1907, P. L. 135, in which the stenographer’s transcript to which it related was unmistakably identified and approved, and certified the same to this court as part of the record. Granting that this was not a strict technical compliance with the act, because the judge’s certificate was not physically “endorsed” on the stenographer’s transcript, it does not necessarily, follow that the appeal must be quashed. At the foundation of the case is the question of jurisdiction, and the determination of this question does not depend upon what transpired at the hearing. It arose in the court below upon the presentation of the petition, it was not eliminated from the case by the answer, and was attempted to be raised in this court by the first assignment of error. True, this assignment did not quote the formal final decree totidem verbis, but only the opinion of the court in which it was stated that the prayer of the petitioner was granted, and it is unnecessary to cite authorities for the proposition that in cases of this nature it is the decree and' not the opinion of the court that is assignable for error. But the appellants’ counsel promptly sought to correct this defect in the original assignment by printing in their paper-book and presenting on the argument an additional assignment in which the decree is set forth at length and in due form. The assignment goes to the merits of the case and not to mere technical objections and by allowing it to be filed we, in effect, but allow an amendment which is necessary to prevent injustice, and which raises no question of which the appellee did not have substantial notice by the original assignment.

The proceeding was begun after the marriage of Dilmon Pfoutz and Ida May Hough by a petition of the next of kin of the'former upon which the court granted a rule to show cause why the marriage license should not be revoked, canceled and set aside. In response to this rule the appellants, as well as the committee in lunacy of Dilmon Pfoutz filed answers. The opinion filed by the learned judge shows, what would clearly be implied from the record, that the decree was based on his conclusion that Dilmon Pfoutz had no legal capacity to contract, and that this conclusion was based solely on the undisputed fact that more than twenty years before- he had been adjudged a lunatic by due process of law, and a committee of his estate had been duly appointed who had never been relived or discharged from said trust. The learned judge also held that it was not competent for the appellants to show that at the time of the issuing of the license and of their marriage he had sufficient mental capacity to make a contract. We will not comment on the latter ruling, because the decree must be reversed for reasons which affect not merely the correctness of the rulings upon questions of evidence but go to the jurisdiction of the orphans’ court to entertain the petition and to call upon the parties to defend the validity of the license and of their marriage. The license had served its purpose and fulfilled its office, so far as the legality of the marriage was concerned, when the marriage was consummated. Nothing which would affect the rights of the parties could be accomplished by annulling it. It may be said that the action of the court should not be set aside merely because it was futile. Perhaps not if the court had jurisdiction of the subject-matter, but the futility of such action is a convincing reason for concluding that the legislature never intended the orphans’ court to have the power to take it. “This court is sometimes called a court of limited jurisdiction. This is true, if regard be had to the derivation of its powers, for it possesses none inherently, and exercises only such as are conferred by or implied from legislation; and it is true also as to the subjects of its jurisdiction, for these are set down in the statutes; but within its appointed orbit its jurisdiction is exclusive, and therefore necessarily as extensive as the demands of justice:" Shollenberger’s App., 21 Pa. 337. While it is clear that the orphans’ court in a proceeding to distribute an estate among legatees, next of kin and heirs, has ample power to inquire into and determine all questions standing directly in the way of a distribution to these parties, yet neither divorce nor the annulment of marriage is one of the subjects of its jurisdiction. To inquire into questions of marriage or no marriage where that question arises in the distribution of a decedent’s estate, is quite a different thing from summoning him before the court in his lifetime to defend against an allegation that he was not competent to marry. Conceding that the court has authority to supervise the records of the marriage licenses kept by its clerk, so far as to see that they are in conformity to law, it has been given no express authority, after the marriage has been consummated, to annul the license issued by him, upon proof of facts outside the record, and no such authority is implied in the grant of any other power. As the counsel'for appellants well say, content with prohibiting the performance of marriage without a license, designating an officer to issue it according to prescribed forms, after making prescribed inquiries of the applicants, and requiring the performance of the marriage to be certified, the act relating to the subject properly leaves to the divorce courts, and the courts dealing with the distribution of estates and with property rights, the right to determine the validity of the marriage.

The decree is reversed and the petition is dismissed, the costs in the court below and on this appeal to be paid by William Pfoutz, the petitioner.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Glassburner’s Estate.

      Guardian and ward — Investment of funds — Surcharge—Testamentary guardian.

    Where a testator appoints his brother who is not an active business man guardian of his son and authorizes him “to invest such money belonging to my boy that may come into his hands, in such manner as will, in his opinion, be for the interests of the boy,” and the guardian in good faith deposits the money in a bank on an open account at four per cent interest, he cannot be held liable for the loss of the money resulting from the failure of the bank.
    Argued May 7, 1909.
    Appeal, No. 140, April T., 1909, by Harry Glassburner, from decree of O. C. Allegheny Co., March T., 1908, No. 128, dismissing exceptions to adjudication in Estate of Harry Glassburner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the opinion of the Superior Court.
    The auditing judge refused to surcharge the guardian.
    Exceptions to the adjudication were dismissed by the court in banc. Hawkins^ P. J., dissenting.

      Error assigned was in dismissing exceptions to adjudication.

      A. H. Mercer, with him George 11. Quaill, for appellant.
    The nature of a- testamentary guardianship is not a familiar fact. Such a guardianship supersedes the claim of any other guardian, and extends to the person, and all real and personal estate of the child, and continues until it arrives at full age: Sheetz’s Estate, 6 Pa. Dist. Rep. 367; Arthur’s Appeal, 1 Grant, 55.
    While the record may not disclose any willful default or supine negligence chargeable to this guardian, it is submitted that such lack of ordinary business acumen amounts almost to a breach of trust: Clark’s Appeal, 18 Pa. 175; Evans’ Est., 7 Pa. Superior Ct. 142; Bartol’s App., 182 Pa. 407; Barker’s Est., 159 Pa. 518; Nyce’s Est., 5 W. & S. 254.

      T. P. Trimble, of Trimble & Chalfant, for appellee.
    We ask the court to decide this case in favor of the accountant for the reason that the will creating the trust gave the testamentary guardian sufficient discretion to permit the investment of the money coming into his hands in a loan to any reputable and responsible bank, and that he is not bound' by sec. 22 of art. Ill of the constitution of Pennsylvania, nor by the acts of assembly regulating the investment of trust funds: Pleasant’s App., 77 Pa. 356; Barker’s Est., 159 Pa. 518; Calhoun’s Est., 6 Watts, 185; Chambersburg Saving Fund Association’s App., 76 Pa. 203; Bartol’s Est., 182 Pa. 407.
    July 14, 1909:
   Opinion by

Morrison, J.,

Appellant’s counsel states the question involved as follows: "Liability of the testamentary guardian to be surcharged for the loss of $1,057.90 invested at four per cent interest in the Enterprise National Bank at the time of its failure and for almost two and one-half years prior thereto.” The assignments of error raise the question above stated.

Charles Glassburner died testate May 11, 1902, and by his last will and testament he appointed Henry Glassburner, his brother, executor of his said will and testament and testamentary guardian of his son, Harry Glassburner, in the following words: “And also testamentary guardian of my boy, Harry Glassburner, and authorize him to invest such money belonging to my boy that may come into his hands in such manner as will, in his opinion, be for the best interests of the boy.”

The guardian filed his first and final account on January 31, 1908, and the ward being then of full age, by his counsel, excepted to the decree of distribution made by the orphans’ court, allowing the guardian credit for $1,057.90, which was on deposit at four per cent interest in the Enterprise National Bank, at the time of its failure. In the court below there was a vigorous contest over the question of whether or not the guardian should be surcharged with said sum standing to his credit as guardian in said bank. The majority of the court, in an opinion written by Miller, J., dismissed the exceptions and allowed the guardian credit for said sum of $1,057.90. To this decree a bill of exceptions was filed and sealed. Hawkins, P. J., filed a dissenting opinion contending that the exceptions ought to be sustained and the guardian surcharged with said sum.

If this were the case of a statutory guardian, the opinion and conclusion of Judge Hawkins would be very strong. But, in our opinion, having in view that the accountant was a testamentary guardian, vested with large discretion, and that he was a brother of the testator, a painter, not an active business man, and probably well known to the testator not to be an expert in financial matters, we do not think it would be just to apply to this guardian the strict rules pertaining to statutory guardians. The language of the will directed the guardian “to invest such moneys belonging to my boy as may come into his hands in such manner as will, in his opinion, be for the best interests of the boy.” It would be difficult to choose language more appropriate to empower a guardian to use his own judgment as to what character of investments would be for the best interests of the boy. Judge Hawkins 'only cites Law’s App., 144 Pa. 499, but we do not understand that case to be a review of the management of a testamentary guardian. Moreover, in that case the Supreme Court reversed the lower court for surcharging the guardian with money lost through the failure of the Bank of America. Upon the controlling facts of the present case, the opinion of the court, by Miller, J., is, in our opinion, much more convincing than that of Judge Hawkins. We think the opinion and decree of the court are in harmony with the general trend of the decisions applying to the case of a testamentary guardian.

In the opinion of the court we find the following: “Taken, however, in connection with the broad discretion given by the appointment as determined in Bartol’s App., 182 Pa. 407, and Barker’s Est., 159 Pa. 518, the statutory requirements are ‘a dead letter as to the accountant’ and he must be relieved from personal liability by reason of the absence of any act showing supine negligence. There is no question of his good faith, diligence and honest belief that the Enterprise National Bank was a solid financial institution. He had a fair right under the discretion given by his brother’s will to assume that he was acting for the best interests of the ward in so investing the fund that he could continuously draw therefrom an income as needed for the maintenance of the minor to be paid to the mother.”

Counsel for appellant cites Arthur’s App., 1 Grant, 55; Clark’s App., 18 Pa. 175; Law’s Est., 144 Pa. 499; Nyce’s Est., 5 W. & S. 254, but those are, all but one, cases of statutory guardians or executors, and they are not controlling in case of a testamentary guardian clothed with large discretionary powers. In Nyce’s Estate the testator directed that a sum of money should be put on interest to be well secured. The executors invested that sum in stock of the Bank of the United States, which depreciated during the life of the widow and afterwards, so that it was nearly lost. The executors were held liable because they did not invest the money well secured.

Arthur’s Appeal is not a case of a testamentary guardian. Clark’s Appeal is a case of statutory guardians; the same may be said of Law’s Estate. Counsel for appellant cites and relies on Estate of Lizzie Evans, 7 Pa. Superior Ct. 142, but it does not appear from that case that the guardian was acting under testamentary authority. The soundness of the opinion in that case can hardly be doubted in case of a statutory guardian or trustee, but we think the present case can be distinguished from the cases to which that doctrine is applicable, because of the discretion vested in the guardian by the testator’s will.

While this case has been considered on the theory that the guardian invested the money in question in the Enterprise National Bank, yet we do not understand that it was a permanent investment. The money was to the credit of the guardian on an open account and while it is true that he was entitled to draw four per cent interest thereon, that was on account of a rule of the bank. We understand that the guardian could have withdrawn the whole or any part of this money any time at his election.

Upon the whole case we are not convinced that the guardian ought to have been surcharged with the money in question and, therefore, the assignments of error are overruled, the decree affirmed and' the appeal dismissed at the costs of the appellant.


author: Oelady, J.,

text:
    Parrotta v. Pennsylvania & Mahoning Valley Railway Company, Appellant.

      Negligence — Street railways — Infant—Death—Contributory negligence of parent.

    1. In an action against a street railway company to recover for the death of a child between three and four years old by being run down by an electric car, the mother cannot be charged with contributory negligence in permitting the child to go on the street, where it appears that the child escaped her while she was preparing a meal, that she did not permit her children to go on the street, that she kept the front door closed, and that as soon as she missed the child she started immediately to look for her.
    2. A jury is justified in finding that a motorman was guilty of negligence in running over a small child where several witnesses testify that before the accident happened they had called to the motorman when the car was from 100 to 200 feet from the child, indicating the danger of the child as she walked slowly across the street quite a distance ahead of the car, but that no attention was paid to the signal by the motorman, who was standing by the brakes with his back turned towards the front of the car engaged in conversation with persons inside the car, and that the car ran from thirty to thirty-five feet after the child was struck.
    Argued May 13, 1909.
    Appeal, No. 36, April T., 1909, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1906, No. 66, on verdict for plaintiffs in case of Dominick Parrotta and Angelo Parrotta v. Pennsylvania & Mahoning Valley Railway Company, operating the New Castle Electric Street Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for the death of a child three and one-half years old. Before William E. Porter, P. J.
    The facts relating to the accident are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $845. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      C. H. Akens, of Akens, Wilkison, Lockhart & Chambers, for appellant.
    Parents owe the duty of protection to their child of tender years and they must exercise care to prevent it being exposed to danger, in order to relieve themselves from the charge of contributory negligence if the child is injured through the fault of another: Del Rossi v. Cooney, 208 Pa. 233; Addis v. Hess, 29 Pa. Superior Ct. 505; McCool v. Coal Co., 150 Pa. 638; Westerburg v. R. R. Co., 142 Pa. 471; Sullenberger v. Traction Co., 33 Pa. Superior Ct. 12; Phila. & Reading R. R. Co. v. Long, 75 Pa. 257; Woeckner v. Motor Co., 182 Pa. 182; Murray v. Scranton Ry. Co., 36 Pa. Superior Ct. 576.
    The evidence as to the negligence of defendant was not sufficient to carry the case to the jury.

      H. K. Gregory, of Gregory & Dickey, for appellee.
    In passing upon the question of contributory negligence on- the part of the parents, the jury should take into consideration their' circumstances in life at the time of the accident. And if the jury are satisfied that the parents took reasonable care to prevent their child from wandering upon the streets, under all the circumstances of their condition at that time, they cannot be held guilty of contributory negligence: Henne v. Railway Co., 1 Pa. Superior Ct. 311.
    A motorman should always be on the alert, to avoid danger, and his attention should never be diverted from his duties. He should keep his eye constantly on the track before him. If he is permitted to gaze at houses or other objects while his car is in motion, and an accident occurs by reason of such conduct, the company employing him must expect to be held responsible: Conner v. Pittsburg Rys. Co., 216 Pa. 609; Henne v. Railway Co., 1 Pa. Superior Ct. 311; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319; Schnur v. Traction Co., 153 Pa. 29.
    July 14, 1909:
   Opinion by

Oelady, J.,

This action of trespass was brought to recover damages from the defendant company on account of its negligence in causing the death of a child about three and one-half years of age. While the testimony of some of the plaintiff’s witnesses is exceptionally direct and positive, others assert, with the same degree of confidence, a very different state of facts.

The plaintiff’s family consists of himself, his wife and six small children ranging from one to ten years. His house stands six or eight feet back from the sidewalk, with a yard in front on a level with the sidewalk, but there was no fence or barrier in the front to prevent the children from going out to the street. At the time of the accident, the father, who was a mill worker, was not at home, and the mother was arranging for the supper, while the children were with her in the kitchen, or were playing in a lot in the rear of the house. It is admitted by the defendant that, “Without the knowledge of the mother, Grasellawent out on Mill street with a doll baby in a basket, crossing over to the east side of the street, playing there for a while, then went back to the west side for a little distance, and then turned to go back to the east side when she was struck by the car.” In explanation of her care of the child, the mother testified that she always kept the front door shut so that the children could not go out; on that day she had cooked supper and scrubbed the floor; and that the accident had happened as follows, “I didn’t notice 'her at all when she did go out. Í don’t know if it was really five minutes. I thought she was in the back yard, and went to look in the back yard, and she had gone to the front street; I was just going to the front street to look for her, and they brought me the news that she was killed. She never went out on the street. She hardly ever went out. All the neighbors can tell you that.”

In regard to the speed at which the trolley car was going, and the care used by the motorman, the testimony fully warranted the jury in finding that the motorman was guilty of negligence in not having his car under proper control. A number of witnesses testified, that before the accident happened they had called to the motorman, when the car was from 100 to 200 feet from the child, indicating the danger of the child as she walked slowly across the street quite a distance ahead of the car, but that no attention was paid to these signals by the motorman, who was standing by the brakes with his back turned toward the front of the car, engaged in conversation with persons inside the car; and that the car ran from thirty to thirty-five feet after the child was struck.

The duty of the motorman has been clearly defined in many cases, and there is no exception or limitation to the requirements imposed upon him by the law. He should always be on the alert to avoid danger, and his attention should never be diverted from his duty. He should keep his eye constantly on the track before him. He is not permitted to gaze at the houses, or other objects, or engage in conversation with persons in the car while his car is in motion, and if an accident occurs by reason of such omission of his duty, the company employing him must expect to be held responsible. He must have such control of his car, so as to avoid danger ordinarily incident to its operation, and also to avoid such unusual or unexpected dangers as should be seen in time to be avoided. Taking the plaintiff's testimony as made by this record, it follows, that if the motorman in this case had exercised proper control over his car it could have been stopped in time to have avoided this accident: Conner v. Pittsburg Railways Co., 216 Pa. 609; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319; Tatarewicz v. United Traction Co., 220 Pa. 560.

The question of the contributory negligence of the parent was properly submitted to the jury. The fact that as soon as the child was missed from the kitchen, the mother started immediately to look for her is satisfactory evidence that the child was not permitted to be on the street, and there is no rule of human conduct that requires a mother to keep her eye constantly on a child in her own home. A child between three and four years of age, without a caretaker on a street traversed by a trolley line, would raise the presumption of negligence on the part of the parents, but such a presumption may be overcome by proof of facts showing that reasonable care had been exercised to guard or restrain the child: Del Rossi v. Cooney, 208 Pa. 233.

In the light of the testimony of the mother, which is all there is on the subject, the jury was warranted in finding that she exercised as much care as could reasonably be expected of one similarly circumstanced, while engaged in her manifold domestic duties. The conclusion reached by the jury that this child had escaped from her vigilant care was a reasonable one. There is a plain dividing line in the decisions between those cases which exempt a defendant from liability by reason of contributory negligence of parents in allowing a young child to wander to a place of manifest danger, when they have failed to exercise reasonable efforts to guide the child, and the cases where the parents do exercise reasonable care in light of the circumstances, and the child escapes without their knowledge and goes to a place of danger. In the former cases the decisions are uniform, in holding that there is no right to recover, while in the latter they are as consistent in holding that the question of contributory negligence is to be passed upon and disposed of by a jury: Murray v. Scranton Ry. Co., 36 Pa. Superior Ct. 576; Davis v. Westmoreland County Ry. Co., 222 Pa. 356.

The judgment is affirmed.


text:
    Woodward to use v. Pittsburg Underwriters, Appellant.

      Insurance — Fire insurance — Ovmership of property.

    In an action upon a policy of fire insurance, it appeared that the policy was taken out in the name of two men as partners. The policy provided that in determining the liability of the company the total insurance, whether valid or not, was to be taken into consideration. The goods were also insured in another company. One of the partners retired and assigned his interest to the plaintiff. The defendant company indorsed upon its policy its consent to the transfer, but no such consent was obtained from the second company. After a fire the plaintiff submitted to the second company a proof of loss in which it was stated that the property belonged to the partnership. In the proof of loss submitted to the defendant company it was stated that it partly belonged to the plaintiff. Held, that the false statement made to the second company did not relieve the defendant company from its liability on the policy.
    Argued April 30,1909.
    Appeal, No. 186, April T., 1909, by defendant, from judgment of C. P. Washington Co., Nov. T., 1907, No. 110, on verdict for plaintiff in case of Woodward & Gallagher to use of J. K. Gallagher v. Pittsburg Underwriters.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before McIlvaine, J.
    Verdict and judgment for plaintiff for $850. Defendant appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      W. K. Jennings, with him D. C. Jennings and J. P. Miller, for appellant, cited:
    Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350; Moore v. Ins. Co., 28 Grattan, 508; Hamberg v. Ins. Co., 68 Minn. 335 (71 N. W. Repr. 388); Home Ins. Co. v. Connelly, 104 Tenn. 93 (56 S. W. Repr. 828); Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38 (71 N. W. Repr. 69); Maher v. Ins. Co., 67 N. Y. 283.

      R. W. Irwin, with him Jas. A. Wiley, for appellee, cited:
    Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350; Hanscom v. Ins. Co., 90 Me. 333 (38 Atl. Repr. 324).
    July 14, 1909:
   Opinion by

Oelady, J.,

Woodward and Gallagher were partners conducting a general merchandise store. The partnership property was insured in five companies, upon a single policy issued under the name of the Pittsburg Underwriters, a local insurance association. Subsequent to the issuance of this policy, Woodward sold his interest in the stock of goods to Gallagher, who continued the business in his own name. The local agent of the association indorsed upon its policy the consent of that company to the transfer of Woodward's interest to Gallagher, but such a consent was not noted on the policy of the German Fire Insurance Company, one of the five companies composing the Pittsburg Underwriters. A fire occurred which destroyed the entire stock of goods. On the trial of the case in the court below two defenses were interposed. First, that the claim for loss and damage by fire was greatly exaggerated and in excess of the actual loss, which question is disposed of by the verdict in this case. Second, that the insured had made false and contradictory statements in his proofs of loss in relation to the ownership of the property contrary to the provisions of the policy.

The second contention is based upon the fact that in the proof of loss served upon the defendant company, which was sworn to by John K. Gallagher, he stated that the property described in the policy belonged at the time of the fire to John K. Gallagher, and that no other person or persons had any interest therein. At the time said insurance was effected the property described in said policy belonged to Woodward and Gallagher. In the proof of loss served upon the German Fire Insurance Company, Gallagher made an affidavit declaring that the property described in that policy belonged at the time of the fire to S. L. Woodward and John Gallagher, and that no other person or persons had any interest therein. The proofs of loss were made out on the same day and sworn to before the same notary, and an examination of them demonstrates that the statements contained in the proof of loss furnished the German Fire Insurance Company are not consistent with the statements contained in the other proofs. The explanation offered at the time of the trial was that because the consent of the German Fire Insurance Company was not indorsed upon the policy for the transfer of Woodward’s interest to Gallagher, under advice of counsel and with the knowledge of the agent of the underwriters’ association, Gallagher made the required affidavit so as to conform to the facts as understood by the parties, and as, from their standpoint, was apparently made necessary by the omission to have the German Fire Insurance Company indorse its consent to the policy continuing in force on the property of Gallagher after he had purchased the interest of Woodward. The true facts of the case were known to all the parties to this transaction, and a full explanation of it was made to the jury, showing that the misstatements were not designedly false.

The situation thus developed satisfied counsel for Gallagher that no action could be maintained against the German Fire Insurance Company by reason of this defect, and no suit was brought on that policy. The defense here urged would be good as against the German Fire Insurance Company, but in light of the explanation offered on the trial it cannot avail against the present defendant. Even if suit had been brought by the appellee against the German Fire Insurance Company on its policy of insurance, the result of that suit could not affect the liability of this appellant. By a clause in the policy it is further provided that this company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property.

Assuming that the German Fire Insurance Company’s policy had been forfeited by the failure of the company’s agent to indorse upon the policy its consent to the transfer of Woodward’s interest to Gallagher, still the amount of insurance included in that policy would have to have been counted in with the other policies in order to ascertain the aggregate of the insurance, and the appellant’s liability for loss occasioned by the fire would bear the same proportion to the total Iqss that the amount of this policy bore to the total insurance in force. The misstatements or false statements, as they may be called, made in the proof of loss furnished to the German Fire Insurance Company, do not affect this appellant, because if the appellee cannot collect his insurance from the German Fire Insurance Company, that does not increase the liability of the appellant, as its policy provides that in determining the liability of the appellant, the total insurance, whether valid or not, must be taken into consideration.

The case was fully considered in the court below and this phase of it explained to the jury. The assignments of error are overruled. The judgment is affirmed.


author: Rice, P. J.,

text:
    McDonald v. McAndrew, Appellant.

      Ejectment — Equitable ejectment — Trust ex maleficio — Evidence.
    1. An equitable action of ejectment to enforce a trust of real estate ex maleficio is in reality a substitute for a bill in equity, and is governed by the rules of evidence applicable to a chancery suit. If the evidence is too vague, uncertain or doubtful to establish the equity set up, even if believed, it is the duty of the judge to withdraw it from the jury either by a nonsuit, or a binding direction in his charge as the case may require. The burden is upon the plaintiff in such a case to prove her equitable right by evidence that is clear, precise, convincing and indubitable.
    2. A promise, declaration or misrepresentation which will create a trust ex maleficio must be made before or at the time the legal title is acquired by the promisor; for nothing subsequently said by the grantee will turn an estate that had passed absolutely from the grantor into a trust for others.
    3. In an equitable ejectment plaintiff claimed that her grandmother had executed a deed for a house and lot and a vacant lot, to an aunt, on the express agreement and promise of the aunt to the grantor to convey the vacant lot to the plaintiff. One witness who was present when the deed was made, testified positively to the making of the promise as to the conveyance of the vacant lot. This witness was corroborated to some extent by admitted or undisputed circumstances. Two witnesses for the plaintiff testified to direct admissions of the defendant made at different times while she was the legal owner of the land, not merely of her intention to deed the land to the plaintiff, nor merely in the nature of promises to do so, but that she had promised the grantor at the time the deed was made that she would deed the vacant lot to the plaintiff. Held, that the evidence was sufficient to sustain a verdict for plaintiff for the vacant lot.
    Argued March 3, 1909.
    Appeal, No. 15, March T., 1909, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1906, No. 282, on verdict for plaintiff in case of Mary McDonald v. Mary Ann McAndrew.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Ejectment for a lot of land in the city of Scranton. Before Newcomb, J.
    The opinion of the Superior Court states the case.
    At the trial the court charged in part as follows:
    [The plaintiff depends upon the testimony of Mr. Lynn as to what happened at the time of the deed, and seeks to corroborate his testimony by that of herself and her husband as to some alleged admissions claimed to have been made by Mrs. McAndrew since the deed was made. The pinch in the case is, as I have suggested, whether the evidence is clear, precise, certain, convincing and indubitable. Remember that Mr. Lynn is the only witness that undertakes to speak as to what happened at the time when the deed was brought up there, having been prepared by the attorney, and the aider-man was called in for the purpose of taking the acknowledgment. Does the plaintiff to your satisfaction bring the parties together at that time and show that a promise was then and there made when the parties to the deed, namely, Mrs. Lynott and her daughter, Mrs. McAndrew, were together in the room where the deed is said to have been signed and evidently was signed and was witnessed by Mr. Lynn? Are you satisfied of that? It seems to me that that is a debatable question. Mr. Lynn himself says in that connection that he took Mrs. McAndrew out in another room and there questioned her with regard to some alleged previous understanding or promise as to what she would do with lot 17, and, as I understand, that after that interview in that room he came back in where the transaction was being consummated and said, “It is all right.” That in itself may seem doubtful as tending to show that there was any promise then and there made by Mrs. McAndrew to Mrs. Lynott. I take it that the theory of the plaintiff is and the claim of Mr. Lynn is that the negotiations had been going on for some time before that and it had finally culminated in the offer on the one side and the assurance on the other, the offer being made by Mrs. Lynott, “I will make this deed to you upon condition that you will when Mary [the niece, Mary Franklin] becomes of age convey 17 to her,” and that the offer was accepted by the assurance on the part of Mrs. McAndrew that she would do that. Mr. Lynn takes the position as I understand him, but, of course, that is for you and not for me, that when it came time to consummate the thing, for his further personal assurance he took the cousin, Mrs. McAndrew, out into the other room and asked her if she would do that. Of course that might be. If the evidence satisfies you and fully and indubitably convinces you that that is what happened, then of course it would be such a connection between the making of the deed and the promise that it would not affect the continuity of the transaction and it could be said by the jury to form one transaction.] [1]
    Defendant presented these points:
    1. Under all the evidence in this case, the verdict must be for the defendant. Answer: I am not prepared at this time to say that, and the request is therefore refused. [2]
    3. In this case the jury must find some fraudulent act on the part of the defendant through which the title has been obtained, and the evidence of such fraudulent act must be clear, precise and convincing in order to find for the plaintiff. Answer: That is affirmed with the same qualification that it would be a fraudulent act if the defendant procured an estate from her mother upon the assurance that she would do a certain thing with part of it and afterwards faithlessly broke the promise, that would be a fraudulent act. [3]
    Verdict and judgment for plaintiff for the land in dispute. Defendant appealed.

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

      Samuel B. Price, for appellant.
    No part of a parol trust can be left to inference; the proof to establish it must in all particulars be clear and specific: Brickell v. Earley, 115 Pa. 473.
    Lynn is the only witness, and in such a case as this there must be two witnesses, or corroborating circumstances equivalent to another: Fuller v. Law, 207 Pa. 101; Building Assn. v. Hetzel, 103 Pa. 507; Streator v. Paxton, 201 Pa. 135.
    While the parol evidence is admissible to prove fraud and mistake, it is insufficient for that purpose unless clear, precise and indubitable: Pioso v. Bitzer, 209 Pa. 503; McCloskey v. McCloskey, 205 Pa. 491; Reno v. Moss, 120 Pa. 49; Moore v. Small, 19 Pa. 461.

      W. L. Houck, of Houck & Benjamin, with him Willard, Warren & Knapp, for appellee.
    When one procures from another a gift of the whole of that other’s estate, on a promise to give part of it at death for a special purpose, or to a particular individual, the fulfillment of the moral obligation will be enforced in a court of equity, because to the moral obligation there is added the force of a legal one; the estate of the donor is parted with on the faith of the promise: Hoffner’s Est., 161 Pa. 331; Thompson v. White, 1 Dallas, 424; Hoge v. Hoge, 1 Watts, 163; Sheriff v. Neal, 6 Watts, 534; Seichrist’s App., 66 Pa. 237; Brooke’s App., 109 Pa. 188; McCloskey v. McCloskey, 205 Pa. 491; Jones v. McKee, 3 Pa. 496; Perry v. Livingston, 191 Pa. 349.
    As to the evidential weight of the declarations and admissions of the defendant, and their admissibility, we refer to the case of German et al. v. Gabbald, 3 Binney, 301. See also Gregory v. Setter, 1 Dall. 193; Hoge v. Hoge, 1 Watts, 163; Church v. Ruland, 64 Pa. 432.
    July 14, 1909:
   Opinion by

Rice, P. J.,

This was an action of ejectment. Mary A. Lynott was the owner of two adjoining lots known in the case as Nos. 17 and 18, in a certain block. Eighteen was improved with the dwelling house in which she lived; the other was vacant. She owned no other property of consequence. Some' years ago she had devised the property to one of her sons, who had his home with her. January 1, 1905, she broke up housekeeping and went to live with her daughter, the defendant. She was then old, and complained that she was being neglected by the son. She survived about one year after that. The plaintiff is her granddaughter, the child of a deceased daughter. Her maiden name was Mary Franklin. She and a cousin, Edward Lynn, were boarders in defendant’s family while Mrs. Lynott lived there. The disposition of her property was discussed by the old lady with some anxiety on various occasions between herself, her daughter, and the nephew, Mr. Lynn. She expressed her desire to alter the will and to devise the property to the daughter and granddaughter. Lynn advised her that she could give it to them by deed. This she eventually decided to do, but at the request of the defendant she conveyed both parcels to her, September 25, 1905, upon the faith of the latter’s promise to reconvey No. 17 to her niece, Mary Franklin, upon the latter becoming of legal age. The defendant now denies the promise and refuses to convey.

The foregoing clear, concise and accurate statement of the findings of fact implied in the verdict of the jury is taken from the opinion of the learned trial judge discharging the defendant’s rules for new trial and for judgment non obstante veredicto. If the case were governed by the principles of law and evidence applicable to an ordinary action at law, it would scarcely be pretended that the evidence adduced by the plaintiff, if believed by the jury, was not sufficient to sustain the findings and the verdict based thereon. But although the action, in form, was an action at law, it was in reality a substitute for a bill in equity brought to have declared, and to enforce, a trust ex maleficio, and was governed by the same principles. It is not the substitution of twelve unlearned chancellors for a lawyer prepared for his office by the lucubrations of twenty years. The judge in reality is the chancellor with the assistance of a jury. It is not like other ordinary trials at law, where any evidence reasonably tending to prove a fact must be submitted to be passed upon by that tribunal. The conscience of the judge as chancellor must be satisfied, and what goes to the jury is to determine the credibility of the witnesses, and to weigh and decide upon the force and effect of conflicting testimony. What is this but the trial of a feigned issue out of chancery? If the evidence is too vague, uncertain or doubtful to establish the equity set up, even if believed, it is the duty of the judge to withdraw it from the jury either by a nonsuit or a binding direction in his charge, as the case may require: McBarron v. Glass, 30 Pa. 133; Todd v. Campbell, 32 Pa. 250; Bennett v. Fulmer, 49 Pa. 155; Miller v. Hartle, 53 Pa. 108:” Church v. Ruland, 64 Pa. 432. These principles were clearly recognized and brought before the jury in the following as well as in other parts of the charge: “The sole question in the case that you have to determine is this: Did the defendant procure the deed for the two lots 17 and 18 from her mother, Mrs. Mary'Lynott, upon the faith of a distinct promise to convey lot 17 to her niece, and is it a fact that without the promise the mother would not have given the deed? That is the issue. That is what the plaintiff asserts and that is what she must prove in order to warrant the jury in finding a verdict in her favor. And she must prove it by more than a fair preponderance of evidence, which is the rule governing ordinary civil suits tried in this court. A fair preponderance of the evidence would be of no value to her whatever. But the burden is upon her to prove to your satisfaction by evidence that is clear, precise, convincing and indubitable that that was the way the defendant got this deed and that without such promise she would not have got it. So you see, in order to recover she has to satisfy your minds and consciences by evidence that leaves you free from uncertainty and substantial doubt. The promise even if made must have been made at the time the deed was executed or within such time before that; the deed and the promise formed one transaction. She may have made such promise afterwards, but that would be of no consequence, it must be at the time the deed was made or within such time prior thereto that the two things, the deed on the one side and the promise on the other, formed one single transaction.” It is true there is an expression in another portion of his charge, which is made the subject of the first assignment, which might be taken as an intimation that he entertained a doubt as to the sufficiency of the evidence to establish the fact of a promise made at the time of the execution of the deed. But in disposing of the rule for judgment non obstante he took up the question whether the evidence was sufficient to warrant the verdict and to satisfy his conscience as a chancellor, and said: “It is enough to say that whatever doubt might have been felt at the trial is now dispelled upon a careful review of the evidence. It is believed to have been amply sufficient to support an affirmative answer to the question as submitted, viz.: ‘Did the defendant procure the deed for the two lots 17 and 18 from her mother, Mrs. Lynott, upon the faith of the distinct promise to convey lot 17 to her niece, and is it a fact that without the promise the mother would not have given the deed? That is the issue.' The evidence of what took place both before and at the time the deed was executed, upon which plaintiff relied, lacked nothing in precision and certainty if it were believed. In legal effect then the facts establish not a mere parol trust created by contract, thus being within the statute of frauds of 1856. The trust results by operation of law from the abuse of a confidence reposed in the grantee to carry out the intention of the grantor. As such it is within the proviso of the statute relating to trusts arising by legal implication.” These extended quotations from the charge and the opinion show beyond question that the case was not tried upon any erroneous theory as to the facts essential to the creation of a trust ex maleficio, as to the quality and degree of proof required to establish them, or as to the functions of the court and jury. If any error was committed it was in not holding that the evidence did not come up to the standard which the learned judge set.

The rule that in such cases the evidence must be clear., precise and indubitable does not mean that there must be no opposing testimony but that the testimony must carry a clear conviction of its truth. So that our first inquiry should be whether the evidence adduced by the plaintiff, although contradicted, was clear and precise, and was sufficient to carry to the mind of a chancellor a clear conviction that the inducing cause of the conveyance of the two lots to the defendant was her promise to deed the lot in question to the plaintiff. In determining that question the principle thus clearly expressed in McCloskey v. McCloskey, 205 Pa. 491, must be kept in view. “But unkept promises, declarations or misrepresentations, which will create trustees ex maleficio must be made before or at the time the legal title is acquired or the devise made; for nothing subsequently said by a grantee or devisee will turn an estate that had passed absolutely from the grantor or testator into a trust for others. The land of a grantor or testator, who alone can impress it with a trust, never passes from him so impressed, unless the impress is in writing, or he is induced at the time of his conveyance or devise to make it by reliance upon the pledged faith of his grantee or devise, subsequently broken, that his express wishes will be carried out.”

It is argued that the testimony of Lynn, the principal witness, was not clear and precise as to the time and the language of the alleged promise, and in support of this counsel cites a portion of his crc&s-examination as showing that by his own admission he could not distinguish in memory between the conversations he had with the defendant separate and apart from her mother and those he had with her in the presence of her mother. We think counsel attaches too much weight to this testimony. When considered in connection with the context, the evident meaning of the witness was that he could not in every instance of the many interviews he had with the parties remember distinctly whether they were both present or only one was present. He evidently did not mean to retract or qualify his testimony as to what occurred on the very day of the execution of the deed. We deem it advisable to quote this testimony in the words of the witness rather than to attempt to state its substance in our own words. He says: “Q. Before she came down to Scranton what, if any, talk took place between her and her mother about the way in which the deed would be made out and what would be done after, if anything, about it? A. I tried to have the deed made out in both their names, but Mrs. McAndrew wasn’t satisfied, she wanted the property deed to herself. Q. What did she say, Mrs. McAndrew? A. She said if the deed was made in her name, Mary wasn’t of age and there was some mortgage on the property and she stated how much; I don’t know what it is now, I have forgotten, if the property was deeded to her she would deed over a lot to Miss Franklin. Q. Did they say which lot? A. The lot next to Michael’s, the lot that didn’t have the house on. Q. What did Mrs. Lynott say to that? A. She said then she was willing to make a deed when she seen her promise to give this girl, her granddaughter, this lot next to Michael’s. Q. What did Mrs. McAndrew do? A. She immediately came down to Scranton, had the deed made out and had it all deeded to herself. Q. When she came back there who, if anyone, did she bring back with her? A. Alderman Gillespie of the North End. Q. Now before the deed was executed by Mrs. Lynott did you have a conversation with Mrs. McAndrew? A. Yes, sir; while the alderman was doing some writing I called Mrs. McAndrew into the kitchen right next to the dining room and spoke to her. Q. Tell us what that conversation was? A. I asked her if she intended to live up to the promise she had made to give Mary her part of the property, the lot next to Michael’s; she said she would, she was no thief, she would give it to her, had no intention of cheating her.” In connection with the latter part of this testimony there should be read the testimony of Alderman Gillespie, a witness called by the defendant. After having testified that he acquainted Mrs. Lynott with the contents of the deed, and being asked what else occurred, he testified as follows: “A. She spoke about having made a will and that this was all the property she had and it would do away with the will. Q. Anything else said? A. Yes, sir. She said she was going to give it to Mary or to Mrs. McAndrew and that she would do what was right.” He also gave this significant testimony upon cross-examination: “Q. Now isn’t it a fact that before the deed was acknowledged and while you were preparing the acknowledgment that Mr. Lynn and Mrs. McAndrew stepped out into the kitchen? A. I think that is correct. Q. And they had a conversation? A. I didn’t hear what they said. Q. They were out there for some little time? A. Yes, sir; a few minutes. Q. And when they came back into the room Mr. Lynn said, 'It is all right, Aunt Mary,’ did he not? A. He did. Q. He told her to sign it, 'it is all right, go and sign it’? A. Yes, sir.” There is no uncertainty in this testimony as to the time of these conversations; the first was immediately before the defendant went to have the deed prepared and the other was at the very time of the execution of the deed on the same day. Nor is there uncertainty or ambiguity in the inducing promise to deed a lot to the plaintiff, or as to the lot to be deeded; it was the lot next to Michael’s that had no house upon it. Nor is there any uncertainty as to the promise having been made directly to Mrs. Lynott, or as to her answer. Nor is there any testimony as to anything that occurred at that time going to show a change of intention on the part of either. If it be said that the fact that this promise was the inducing cause rests on inference, the an- . swer is that such inference is the natural and irresistible conclusion from what was said and done befor.e and at the time of the execution of the paper, and may be relied on even though Mrs. Lynott did not say in so many words,'' I make this deed induced by, and relying upon, my daughter’s promise.” See Sweetzer’s Appeal, 71 Pa. 264, 273; Cullmans v. Lindsay, 114 Pa. 166, 171; White v. Black, 14 Pa. Superior Ct. 459, 470.

We need not take up time in commenting on the inconsistencies in the defendant’s testimony as to the consideration for the deed. But there is one part of the plaintiff’s testimony upon cross-examination which counsel for appellant regards as consistent with the defendant’s contention, or at least as easting doubt on the plaintiff’s allegation as to the inducing cause for the conveyance. It is as follows: "Q. Do you know that part of the consideration of that deed was the fact that your aunt had supported your grandmother? A. She had only taken care of her for a year. Q. You don’t answer the question. I want ' to know whether the deed wasn’t given because she had supported her and agreed to support her during her life.? A. She was willing to give her the house and lot; yes, sir. Q. For that, for the support? A. For that; yes, sir.” When it is remembered that Mrs. Lynott owned two lots, one with a house on it, the other vacant, this testimony cannot be regarded as inconsistent with the plaintiff’s allegation that the inducement for the conveyance of both lots to the defendant was the latter’s promise to deed the vacant lot to the plaintiff.

Finally, it is argued that Lynn is the only witness, and in such a case as this there must be two witnesses, or corroborating circumstances equivalent to another. Socher’s Appeal, 104 Pa. 609, cited by the plaintiff’s counsel, is not necessarily in conflict with those cases in which the general rule as above stated is upheld; for in that case the answer was not responsive and the testimony of the witness called by the plaintiff was not contradicted. Here the facts upon which the plaintiff’s equity rests are denied by the defendant, not only in her pleadings but in the evidence adduced by her. Hence we assume the applicability of the general rule as claimed by the defendant. But are not its requirements met by the evidence adduced by the plaintiff? As already pointed out the testimony of Lynn shows a definite promise at -the time of the execution of the deed by the grantee to the grantor in which the cestui que trust was named and the land to be conveyed by the defendant was clearly described. He is corroborated to some extent, although perhaps not to the full extent required by the rule, by the admitted or undisputed circumstances. In addition the plaintiff adduced testimony of at least two witnesses of direct admissions of the defendant, made at different times, while she was the legal owner of the land, not merely of her intention to deed the land to the plaintiff, nor merely in the nature of promises to do so, but that she had promised the grantor at the time the deed was made that she would deed this lot to the plaintiff. As was said by Chief Justice Tilghman in German v. Gabbald, 3 Binney, 301, these confessions are not to be considered as a mere parol declaration of trust by her, but as evidence of a fact, by virtue of which a trust resulted by operation of law. See also Hoge v. Hoge, 1 Watts, 163. Viewing the testimony as a whole we are of opinion that it met the requirements of the rule, and that the verdict of the jury rendered under appropriate instructions and approved by the trial judge acting as a chancellor should stand.

The judgment is affirmed.


text:
    Commonwealth v. Ensign, Appellant
    (No 1).

      Criminal law — Evidence—Banks and banking — Schedule and books of bankrupt.

    1. Upon the trial of an indictment drawn under the Act of May 9, 1889, P. L. 145, charging the receiving of deposits by an insolvent banker, with knowledge that he is at the time insolvent, schedules filed by the defendant in involuntary bankruptcy, and testimony of an expert accountant based upon an examination of his banking books that he had turned over to the trustee in bankruptcy, are admissible against him.
    2. The provision of sec. 860 of the revised statutes of the United States, providing that no pleading or evidence in a judicial proceeding shall be used against a party “in any court of the United States in any criminal proceeding,” applies only to criminal proceedings in federal courts.
    3. The proviso in clause 9 of sec. 7 of the federal bankruptcy act of 1898, to the effect that no testimony given by a party in bankruptcy proceedings shall be offered in evidence against him in any criminal proceeding, applies only to testimony given by the bankrupt upon his examination, and not to the schedules referred to in the earlier parts of the section.
    4. In the absence of statutory regulation of the subject testimony and written statements voluntarily given or made by a party or witness in a judicial proceeding are as admissions and confessions competent against him on the trial of any issue in a criminal case to which they are pertinent; and schedules and books offered by a bankrupt under the provisions of the federal act are to be considered as voluntarily offered.
    5. An order of reference under the seal of the United States district court and forwarded by the clerk to the referee in bankruptcy is admissible in a criminal proceeding in a state court, if there is no other objection to it except that it was a “piece of testimony growing out of the bankruptcy proceedings.”
    Argued April 12, 1909.
    Appeal, No. 162, April T., 1909, by William A. Ensign, from judgment of Q. S. Erie Co., S.ept. T., 1908, No. 39, on verdict of guilty in case of Commonwealth v. William A. Ensign and Charles A. Ensign.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.

      Indictment for receiving bank deposits when the banker is insolvent. Before Walling, P. J.
    At the trial the court admitted under objection and exception schedules in bankruptcy signed by the defendants in involuntary bankruptcy proceedings. [1]
    The court also admitted in evidence under objection and exceptions statements and compilations made by an accountant from the private banking books of the defendants which had been turned over to the trustee in the involuntary bankruptcy proceedings and produced in court by the trustee. [2]
    The court admitted in evidence under objection and exceptions a copy of order of reference in the bankruptcy proceeding. It was “objected to as incompetent and that it was another piece of testimony growing out of the bankruptcy proceedings.” [3]
    Verdict of guilty, upon which the prisoner was sentenced to pay a fine of $2,000 and undergo one year's imprisonment in the penitentiary.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions.

      John B. Brooks, with him Paul A. Benson, for appellants.
    If a man has been declared an involuntary bankrupt he is not going to turn over books and papers to be used as evidence against him in a subsequent criminal prosecution, and unless he does do these things the national bankruptcy law will become a farce, and its more beneficent provisions will be made inoperative: United States v. Marsh Chambers, 13 Am. Bankr. Rep. 708; Brown v. Walker, 161 U. S. 591; Boyd v. United States, 116 U. S. 616; Bonesteel v. Sullivan, 104 Pa. 9.

      W. Pitt Gifford, district attorney, for appellee.
    The answers and other testimony which are voluntarily given by a witness in any case or proceeding, civil or criminal, as before a commissioner in bankruptcy, a committee of the legislature, a committing magistrate, a grand jury, a coroner, a fire inquest, or any court in an ordinary lawsuit, are as admissions or confessions competent against Mm on any issue in a criminal case to which they are pertinent: Williams v. Com., 29 Pa. 102; Hendrickson v. People, 10 N. Y. 13; Com. v. Reynolds, 122 Mass. 454; Vermont v. Duncan, 4 Lawyers’ Rep. Ann. (N. S.) 1144, note; People v. Wieger, 100 Cal. 352; People v. Arnold, 40 Mich. 710; Fellerman’s Case, 17 Am. Bankr. Rep. 785.
    The United States supreme court, in Counselman v. Hitchcock, 142 U. S. 547, in construing a clause, in the interstate commerce act, which was in the following language, precisely similar to sec. 7a, clause 9, of the bankruptcy act: “But such evidence or testimony shall not be used against such person on the trial of any criminal proceeding,” held that such provision did not grant immunity from prosecution, and hence, did not take away the privilege of the witness to refuse to answer questions which might incriminate him.
    Following this ruling of the United States supreme court, the federal court, in In re Nachman, 8 Am. Bankr. Rep. 180, held that the bankrupt, when under examination before a referee in bankruptcy, cannot be compelled to answer a question, the answer to which he claims will tend to incriminate him. Similar rulings are to be found in In re Feldstein, 4 Am. Bankr. Rep. 321; In re Walsh, 4 Am. Bankr. Rep. 693; In re Henschel, 7 Am. Bankr. Rep. 207; In re Shera, 7 Am. Bankr. Rep. 552; In re Smith, 7 Am. Bankr. Rep. 213.
    The fatal weakness of appellants’ position is that they filed their schedules in bankruptcy and turned over their books of account to their trustee in bankruptcy, when they might have objected, on the ground that this would incriminate them, but this they failed to do. In the face of all the authorities, this rendered their statements thus made voluntary: McElree v. Darlington, 187 Pa. 593; In re Nachman, 8 Am. Bankr. Rep. 180.
    It was upon this very explicit act of Congress, applying only to the courts of the United States, and not upon any provisions of the bankruptcy act, or general orders in bankruptcy, or constitutional provision, that the United States courts based their refusal to admit the schedules in bankruptcy in the cases referred to by appellant.

      July 14, 1909:
   Opinion by

Rice, P. J.,

The principal question for decision is, whether upon the trial of an indictment, drawn under the Act of May 9, 1889, P. L. 145, charging the receiving of deposits by an insolvent banker, with knowledge that he is at the time insolvent, schedules filed by the defendant in involuntary bankruptcy, and testimony of an expert accountant based upon an examination of his banking books that he had turned over to the trustee in bankruptcy, are admissible against him. What we shall say regarding the evidence furnished by the schedules will apply with equal force to the objection that the evidence furnished by the books could not be used against the defendant.

1. Section 860 of the revised statutes of the United States is as follows: “No pleading of a party, nor any discovery or evidence, obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture ; provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.” The terms “any court of the United States” obviously mean any federal court, and therefore this section of the revised statutes and the decisions under it may be dismissed as inapplicable to the present case.

2. Clause 8 of sec 7. of the bankruptcy act of 1898 provides that the bankrupt, whether voluntary or involuntary, shall prepare, make oath to, and file in court a schedule of his property, showing certain facts in detail. Clause 9 of the same section provides that when present at the first meeting of his creditors, and at such other times as the court shall order, he shall submit to an examination of his bankruptcy, his dealings with his creditors and other persons, the amount, kind and whereabouts of his property, and in addition, all matters which may affect the administration and settlement of his estate. Immediately following these provisions relating to the examination of the bankrupt and forming part of the same clause is the proviso, “but no testimony given by him shall be offered in evidence against him in any criminal proceeding.” In a well-considered opinion overruling the defendant’s motion for new trial and in arrest of judgment the learned trial judge likened the schedule to a statement of claim, a bill of particulars, or an affidavit of defense, which are not ordinarily part of the testimony.in a case unless offered as such, and upon consideration of the immediate context held, that the proviso above quoted refers to the testimony given by the bankrupt upon his examination and not to the matters set out in the earlier parts of the section. We concur in this conclusion.

3. Counsel contend that the use of the schedules and the books in this trial was in violation of the defendant’s rights under the provision of the federal constitution, that no person “shall be compelled in any criminal case to be a witness against himself,” and* the provision of the state constitution that in criminal prosecutions the accused “cannot be compelled to give evidence against himself.” It is to be observed that the commonwealth did not obtain these documents by any compulsion exerted by it upon the defendant. But it is said the schedules were filed and the books were delivered to the trustee by compulsion of the provisions of the bankruptcy law and of the general orders in bankruptcy, and therefore they could not be used in any criminal prosecution of the defendants either in the state courts or in the United States courts. It is to be observed in this connection, (1) that the bankruptcy act attaches no penalty to the bankrupt’s failure to file the schedule; (2) that the schedules involved in the present case were not filed under compulsion of any special decree or order of court or of any attachment or proceeding for attachment; (3) that the defendants did not object to filing them upon the ground that thereby they would furnish evidence that might criminate them; (4) that they did not file them under the inducement of any provision of any act of congress or of the state legislature prohibiting them from being used against them in any criminal prosecution in the state courts; (5) that it does not appear that at the time they filed them they were under arrest or had been charged with a criminal offense or were under any sort of duress. Generally speaking, and in the absence of statutory regulation of the subject, testimony and written statements voluntarily given or made by a party or witness in a judicial proceeding, are as admissions and confessions competent'against him on the trial of any issue in a criminal case to which they are pertinent, and, according to the great weight of authority such statements and testimony are considered voluntary when given or made under the circumstances above enumerated: Wharton, Crim. Ev., sec. 664; 1 Roscoe, Crim. Ev. (8th ed.), pp. 82, 245; 1 Greenleaf on Ev., sec. 225; Williams v. Com., 29 Pa. 102; Hendrickson v. People, 10 N. Y. 13; Com. v. Reynolds, 122 Mass. 454; Vermont v. Duncan, 4 L. R. A. (N. S.) 1144 note; People v. Wieger, 100 Cal. 352. In addition to these we may mention Abbott v. People, 75 N. Y. 602; Com. v. Doughty, 139 Pa. 383; Com. v. House, 6 Pa. Superior Ct. 92. It follows that the court did not commit error in admitting the p'apers and testimony referred to in the first two assignments of error.

The order of reference quoted in the third assignment of error was under the seal of the United States district court for the proper district, was forwarded by the clerk of said court to the referee in bankruptcy, and was produced and identified by him who was the legal custodian of the document. The objection made to its admission does not satisfactorily show that it was objected to on the ground that it was not properly executed or proven. But the objection seems to have been based on the ground “that it is another piece of testimony growing out of the bankruptcy proceedings.” Under the circumstances, no error was committed in admitting the paper.

All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court of quarter sessions of Erie county to the end that the sentence be fully carried into effect.


author: Ricb, P. J.,

text:
    Commonwealth v. Ensign, Appellant
    (No. 2).
    Argued April 12, 1909.
    Appeal, No. 163, April T., 1909, by Charles A. Ensign, from judgment of Q. S. Erie Co., Sept. T., 1908, No. 39, on verdict of guilty in case in Commonwealth v. William A. Ensign and Charles A. Ensign.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    July 14, 1909:
   Opinion by

Ricb, P. J.,

The defendant was tried jointly with William A. Ensign, in whose case we herewith file an opinion, ante, p. 157, covering all of the questions involved in this appeal. The judgment is affirmed and the record is remitted to the court of quarter sessions of Erie county to the end that the sentence be fully carried into effect.


author: Orlady, J.,

text:
    Kiser v. H. S. Kerbaugh, Incorporated, Appellant.

      Nuisance — Dynamite—Evidence—Negligence—Case for jury.

    1. While certain pursuits may be prima facie lawful, because not necessarily attended with dangerous results, and must be shown to be conducted in a careless manner, so as to become nuisances, the character of the business, the manner in which it is conducted, its .location, are all to b.e considered in determining the question of nuisance or no nuisance, and where the facts are at all in dispute, the proper tribunal to pass upon them is the jury.
    2. Where a person stores dynamite in a small building within a few inches of a red hot stove, with percussion caps lying on the floor, he will be liable for injuries to neighboring property caused by the explosion of the dynamite.
    Argued April 22, 1909.
    Appeal, No. 88, April T., 1909, by defendant, from judgment of C. P. Westmoreland Co., May T., 1905, No. 150, on verdict for plaintiff in case of G. W. Kiser v. H. S. Kerbaugh, Incorporated.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a building caused by the explosion of dynamite. Before Van Swearingen, J., specially presiding.
    The court charged in part as follows:
    [Several grounds of recovery are laid in the plaintiff’s declaration, but the case has resolved itself into a question as to whether these dynamite and powder magazines constituted a private nuisance. You are asked to say that they did, and it is upon this ground that we submit the case for your consideration.
    A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. Any unwarrantable, unreasonable or unlawful use by a person of his own property to the injury of another comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use. The rule is of universal application that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of a lawful trade. A nuisance has also been defined as that which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupancy physically uncomfortable to him. And if you find from the evidence in this case that these dynamite and powder magazines constituted a nuisance, then the defendant is liable for the injury suffered by plaintiff. In determining whether or not -the magazines constituted a nuisance, you should take into consideration the location of the magazines; the quantities of dynamite and powder kept therein; the proximity of other buildings and dwelling houses; the explosive and dangerous qualities of dynamite and powder; the character and needs of the defendant’s business; the density of the population of the neighboring territory and all the surrounding circumstances of the case.
    If, after taking all these matters into consideration, you should determine that these magazines did not constitute a nuisance at the time of the explosion, then you should return a verdict for defendant. But if you find that the maintaining of the magazines did constitute a nuisance, then you should ascertain the amount of the injuries suffered by plaintiff and return a verdict in his favor for that amount.
    ■ You are not to take into consideration the method used by defendant in preparing the dynamite for use. You are not to determine whether there was negligence on the part of the defendant in its treatment and handling of the dynamite. We submit the case to you simply for your determination of the one fact as to whether the mere maintenance of these dynamite and powder magazines under all the circumstances of this case, constituted a nuisance.] [1]
    Defendant presented these points:
    1. That the defendant was engaged in a lawful business and in carrying on that work was in the rightful possession of explosives, to wit: dynamite and powder in quantities sufficient for the current needs of the work in which the defendant was engaged, one-half mile from plaintiff’s residence, and that their possession at the place shown by the testimony of such quantities as have been testified to .was not unlawful, and the defendant cannot be held responsible in this action, unless the plaintiff affirmatively shows negligence on the part of the defendant. Answer: This point is refused. [3]
    2. That the dynamite and powder magazines of defendant were located one-half mile or more from the dwelling house of plaintiff which was alleged to have been injured, and that their location as described by the testimony was not a violation of the law and was not a nuisance in that this plaintiff can recover by merely showing the explosion without affirmatively proving negligence of duty on the part of the defendant which caused the explosion. Answer: That point is refused. [4]
    Verdict and judgment for plaintiff for $615. Defendant appealed.

      Errors assigned amongst others were (3,4) above instructions, quoting them.

      John E. Kunkle, with him Edward E. Bobbins, for appellant.
    The latest case upon this point, we have discovered, and which is on all fours with the case at bar, is the case of Sowers v. McManus, 214 Pa. 244.

      In the case of Tuckachinsky v. Coal Co., 199 Pa. 515, we find the facts on all fours with the present case.
    A party charging negligence as a ground of action must prove it. He must show that the defendant by his act or by his omission has violated some duty incumbent upon him which has caused the injury complained of: Parrot v. Wells, Fargo & Co., 82 U. S. 524; Lodge v. United Gas Imp. Co., 209 Pa. 553; Baran v. Iron Co., 202 Pa. 274; Bannon v. R. R. Co., 29 Pa. Superior Ct. 231; Zahniser v. Penna. Torpedo Co., 190 Pa. 350.
    Damages from the explosion from a dynamite magazine is actionable only when negligence is shown: Steere v. Oakley, 5 Pa. Superior Ct. 46; Sofield v. Sommers, 9 Ben. (U. S.) 526; Kinney v. Koopman, 116 Ala. 310 (22 So. Repr. 593); Cosulich v. Standard Oil Co., 122 N. Y. 118 (25 N. E. Repr. 259); Reiss v. New York Steam Co., 128 N. Y. 103 (28 N. E. Repr. 24); Zahniser v. Penna. Torpedo Co., 190 Pa. 350; Schuylkill Co. Imp. Co. v. Munson, 81 U. S. 442; Pleasants v. Fant, 89 U. S. 116; Holland v. Kindregan, 155 Pa. 156; Sowers v. McManus, 214 Pa. 244.

      Curtis H. Gregg, with him Silas A. Kline, G. Plumer Kline and Sidney J. Potts, for appellee.
    We contend that, under the testimony submitted, and under the circumstances of this case, the question as to whether the facts proven constituted a private nuisance was one peculiarly for the jury: Wietr’s App., 74 Pa. 230; Derry Coal & Coke Co. v. Kerbaugh, 222 Pa. 448; McAndrews v. Collerd, 36 Am. Rep. 508; Heeg v. Licht, 80 N. Y. 579.
    June 14, 1909:
   Opinion by

Orlady, J.,

The plaintiff brought this action of trespass to recover damages caused by the defendant in negligently and carelessly storing large quantities of dynamite and blasting powder within a short distance of the plaintiff's residence, and in not properly caring for and protecting the said explosives, so that they exploded and destroyed his dwelling house, household goods, etc. A verdict of $615 was recovered and the defendant brings this appeal.

The defendant was engaged in straightening the tracks of the Pennsylvania Railroad Company, the work consisting of making extensive excavations through rock and earth, and it was necessary to use dynamite and blasting powder in the management of this enterprise. For the purpose of storing large quantities of these explosives, the defendant company erected a magazine for dynamite, and another for powder about 600 feet from the heaviest portion of the work. These consisted of frame buildings about fourteen by sixteen feet square, seven feet in height, and were located within 200 feet of each other and each was covered with a tar paper roof. These storage magazines were located about one-quarter of a mile from the village of Bradenville, which has a population of from 1,200 to 1,500 people, and approximately one-half mile distant from the dwelling house of the plaintiff. On March 5, 1904, about five o’clock in the evening, both magazines exploded, and nothing remained upon the site where the buildings had been erected except some refuse of the powder house. From 10,000 to 20,000 pounds of dynamite were usually kept in the one building, and an average of from 5,000 to 7,500 pounds of powder were kept in the other. The dynamite house was heated with an egg stove, which was described by plaintiff’s witness as being about four and one-half feet high, and having a capacity of about two bushels of coal. In order to have the dynamite at about thirty-five degrees temperature, in condition for use, wooden boxes containing it were stacked around the stove, as stated by different witnesses, at ten, twelve, eighteen or twenty-four inches distant from it.

Plaintiff’s witnesses testified to having seen this stove when it was hot, red hot, and very red, so that the wooden boxes were made brown with heat and at times were smoking. To explode the dynamite, cartridges, caps or exploders were used by the workmen, and it was testified, that a number of these appliances were lying around on the floor of the dynamite house. Some were wrapped in packages and others were lying around loose and “a blow from a hammer or from a foot on these would put them off.” The first explosion occurred in the dynamite house, and one witness testified that a few minutes before this happened, he saw a walking boss for the defendant, running across the fields, throw up his hands and then everybody started to run away. The plaintiff adduced proof to show that it was much safer to have the dynamite stored in a building specially designed for the purpose, and heated with hot air, steam or water, or, when no heat was used to keep the dynamite in workable condition, then, to have the necessary amount of dynamite removed and thawed in hot water if necessary, and two of the principal witnesses for the defendant who were familiar with using and storing dynamite, on being examined as to the proper care it should receive when stored, were asked the question, “Would you advise piling dynamite on racks from eighteen to twenty-four inches away from a red hot stove in such a house, containing at least 100 boxes of dynamite? and each replied, that it would not be safe to have a red hot stove in it.

It is admitted that the defendant is engaged in a lawful business, but it is urged, that to erect and maintain such a manifestly dangerous establishment as the defendant conducted at this place was a nuisance, and that the cause of the explosion was the careless management and care of the dynamite house. As to whether it was a nuisance the court could not do otherwise than to submit that question under the evidence, to the jury, and it is not material so far as this case is concerned whether it was a nuisance per se or not. Whether it was a nuisance at all depended wholly on the proof, and whether the plaintiff's evidence established that fact, could not be determined as a matter of law by the court, but was properly submitted to the jury: Gavigan v. Refining Co., 186 Pa. 604.

The difference between a nuisance per se, and where a lawful business is carried on so as to become a nuisance, is not in the remedy but only in proof of it. In the one case the wrong is established by proof of the mere act; in the other by proof of the act and its consequences: Dennis v. Eckhardt, 3 Grant, 390.

The common experiences of mankind teaches us that in certain localities and surroundings certain pursuits are universally injurious to health and to property, no matter how carefully conducted. And while they may be prima facie lawful, because not necessarily attended with dangerous results, and must be shown to be conducted in a careless manner, so as to become nuisances, the character of the business, the manner in which it is conducted, its location, are all to be considered in determining the question of nuisance or no nuisance, and where the facts are at all in dispute, the proper tribunal to pass upon them is the jury: Evans v. Fertilizing Co., 160 Pa. 209.

The burden rested upon the plaintiff to satisfy the jury on the question of nuisance as complained of, and the evidence furnished abundant support for the verdict. It is not an answer to the plaintiff’s claim, to state that the defendant was engaged in the prosecution of a business useful to the public, and that the plaintiff’s rights are subordinate to the larger interests of the defendant and the public. The defendant chose to locate its dynamite and powder house in proximity to the plaintiff’s property, and to manage and care for it in a way that the jury has decided in this case, to be negligent and harmful. Neither the magnitude nor importance of its business permitted an invasion in the rights of another. See Green v. Sun Co., 32 Pa. Superior Ct. 521; Sigman v. Powder & Oil Co., 39 Pa. Superior Ct. 559.

The testimony in this case is substantially the same as in Derry Coal and Coke Co. v. Kerbaugh, 222 Pa. 448, in which case the exact cause of the explosion was not shown, and while the exact cause is not determined in this case by the testimony of an eyewitness, yet, a jury would be fully warranted in concluding that it was caused by a superheated stove, or by friction of the percussion caps which were lying around on the floor in the dynamite house, and as in the case just cited, the jury was not left to find negligence from the mere fact of the explosion. A condition entirely under the control of the defendant was shown, to which the producing cause of the explosion might be attributed. The presence of a red hot stove in a small building, and within a few inches of the dynamite, and the explosive caps on the floor, was, under the testimony an unsafe condition from which the explosion might result. In the recent case of Sowers v. McManus, 214 Pa. 244, it was stated, while the possession of dynamite to be used for a lawful purpose is neither unlawful nor negligent, the person in possession of it, is as to third parties, bound to the highest degree of care, and a failure to take every reasonable precaution to prevent explosion of it while in storage, is negligence. No explanation of the cause of the explosion was furnished by the defendant, and it was left to the jury to accept the theory of the plaintiff, based on affirmative evidence of negligent acts, or of an unaccountable accident advanced by the defendant.

In Kerbaugh v. Caldwell, 151 Fed. Repr. 194, a case growing out of the same accident, it was held, “The mere possession of explosives by a person who is using them in his business is not unlawful, but no person can store them in large quantities so near a dwelling house as to endanger it or its occupants, without being guilty of maintaining a nuisance, public or private.” What constitutes a nuisance is usually a question of fact to be determined by the jury. Whether the act of so storing these explosives constituted a nuisance was a question that could not be properly withdrawn from the jury in view of the first count in the plaintiff’s statement, charging the defendant with maintaining a private nuisance. The jury found, without doubt, that the storing of such a large quantity of explosives in the neighborhood was a nuisance, and having so found, the defendant became liable for all damages resulting therefrom to the plaintiff.

A rehearing of that case was refused; the authorities which are cited by the appellant in this case were there considered, and the court concluded in view of the very large quantity of explosives kept by the plaintiff, in its magazines, that the case was distinguished'from the line of cases in which it has been held, that damages resulting from concussion, following explosion of dynamite or powder used in a lawful business, and with care and skill are damnum absque injuria. The points represented by the third, fourth and fifth assignments of error were rightly refused. The plaintiff assumed the burden of affirmatively showing negligence in the care of these warehouses and adduced sufficient proof to warrant the jury in accepting his theory. The judgment is affirmed.