text:
    Shambach, Appellant, v. Middlecreek Electric Company.

      Negligence—Death—Widow—Compromise of suit by widow—Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 809.

    A widow with minor children, who has brought an action in her own name for the benefit of herself and her children who are named in the statement of claim, has a right to compromise and settle the case for a valuable consideration when she does so in good faith, and is not overreached or defrauded, and this she may do without consent of a guardian of the children. After such a settlement the children have no standing further to prosecute the suit.
    Argued Oct. 17, 1910.
    Appeal, No. 23, March T., 1910, by plaintiff, from judgment of C. P. Snyder Co., Oct. T., 1907, No. 59, for defendant non obstante veredicto in case of Ida Shambach v. Middlecreek Electric Company.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before McClure, P. J.
    The case turned on the question whether the widow had the right to settle the suit.
    At the trial the jury returned a verdict for plaintiff for $1,320.80.
   On a motion for defendant non obstante veredicto McClure, P. J., filed an opinion the material portion of which was as follows:

Another question embraced in the reservation is, Did the -release executed by the plaintiff, the widow of Shambach, bar the children’s right to recover damages caused by the death of their father? While one of the objections to the admission of the release in evidence was that it did not pretend to release the rights of the children to damages, it was not dwelt upon at the argument, and the case was rested upon the want of power in the widow to compromise the claims of the children and release their rights.

Counsel for plaintiff’s position is, that where widow and children survive, the right of the children to sue for and recover the pecuniary value of their father’s life is vested property right, precisely defined by the act of 1855, as real and substantial as the right of the widow to recover the value of the life of her husband; and, although required to be ascertained in a single action, the rights of the one are not superior to those of the other, but are wholly independent of each other. Hence, the widow is without power to waive or destroy the children’s rights without their consent.

The fallacy of this argument lies in the assumption that the children have a right to sue for and recover the pecuniary value of their father’s life. They have no such right, where, as here, a widow survives. By the express terms of the act of 1851, the widow, and the widow alone, is empowered to bring suit, and the object of the act of 1855 was not to take away her right of action; on the contrary, it recognizes her right and provides how the damages are to be distributed: Huntingdon & Broad Top Railroad Co. v. Decker, 84 Pa. 419. And on ample authority a demurrer was sustained to the statement in an action by the children, where the deceased left a widow and children surviving: Snyder v. Railway Co., 9 Pa. Dist. Rep. 3. The court said, "The children have no right of action except that by the mother for her benefit and theirs.” There has been a confusion of the legal and equitable rights of the children. Undoubtedly they have an equitable right or title to their shares of the damages recovered by the widow, who, if hot recognizing their rights, will be declared a trustee of the fund upon application to a court of equity having jurisdiction of the parties. This was the remedy adopted in Allison v. Powers, 179 Pa. 531, and it was approved in Lewis v. Turnpike Co., 203 Pa. 511.

The widow is not a mere figurehead like the commonwealth in an action on an official bond, exercising no powers or discretion in the management and conduct of the action. She is not only the legal plaintiff, but is an equitable plaintiff and trustee of the children’s interests as well, with irksome duties to perform and with grave responsibilities resting upon her. The trust is an active one. She presents the claim, employs counsel and pays, or contracts to pay them for conducting the litigation; subpoenas and pays the witnesses, attends the trial and decides whether to abide by the verdict and judgment, or to appeal to a higher court. She is the only person whom the defendant meets as an adversary from the beginning of the litigation to its end. Why then may he not go to her as he would to any other trustee, purchase his peace and take her acquittance for the damages sustained? She is the only party to the record, and she alone can satisfy the judgment. How could she be asked or compelled to enter satisfaction upon the record of a judgment standing in her name if part of the money was paid to another as trustee or guardian of the minor children? The judgment under our statute is a writ in favor of the plaintiff as it is in every action brought by a trustee, and not, as it is under the Texas statute, and others copied from it, in favor of each beneficiary in the proportions determined by the verdict of the jury.

If the rights of the children are entirely independent of the widow, as argued, then she is without power to employ counsel to prosecute their claims or to bind them by a divisional or other contract for fees. Conclusions which are not in accordance with the common understanding of the profession, and which we apprehend would not meet with the hearty approval of those of its members who are specializing for personal injury cases.

The Tennessee statute provides that the right of action for injuries negligently inflicted upon a man’s person “shall pass to his widow, and in case there is no widow, to his children, or to his personal, representatives for the benefit of his widow or next of kin.” The supreme court of that state has held that the widow has the first right of suit, and the power to compromise her suit brought for the benefit of herself and children over the objection of the children and without let or hindrance from anyone: Greenlee v. Railroad Co., 73 Tenn. 418; Stephens v. Ry. Co., 78 Tenn. 448; Webb v. Railway Co., 88 Tenn. 119 (12 S. W. Repr. 428). And in Holder v. Railroad, 92 Tenn. 141 (20 S. W. Repr. 537), it was held that the widow could compromise the right of action before suit brought, and a demurrer to the bill filed by the children, in which it was sought to hold the railroad company accountable for their shares of the money paid the widow in compromise of the right of action, was sustained.

In Rhode Island where an action was brought by the widow for herself and children to recover damages caused by the death of her husband, a release given by her as executrix was held to be a bar, because the right of action was by the law of that state in her as executrix. If suit was brought upon the claim it was her suit, and she might discontinue, compromise or settle it at her pleasure, and having such power she also had the power to compromise the claim without bringing suit: Parker v. Providence, etc., S. Co., 17 R. I., 376 (22 Atl. Repr. 284).

In Foot v. Great Northern Ry. Co., 81 Minn. 493 (84 N. W. Repr. 342), the same question arose, viz.: whether a compromise and settlement with release of damages made by the widow, who was the administratrix of her deceased husband’s estate, barred the right of the children to recover damages for the loss of their father. By the statute of Minnesota the right of action is given to the personal representative of the deceased, for the exclusive benefit of the widow and next of kin. The contention there was that the settlement and compromise was made without the consent or knowledge of the children who were of age, and as it is here, without the consent or knowledge of the court, having care over the rights of the minor children. The court said, “If the personal representative is the trustee of the parties to be benefited, for the purpose of commencing the suit, it must follow that he is their trustee for all purposes in connection with the action.” And it was held that the release of the administratrix was binding upon the children, and barred their right to recover.

In Natchez Cotton Mills Co. v. Mullins, 7 So. Repr. 542, the widow in whom the right of action is vested by the code of Mississippi, pending an appeal by the defendant, accepted a certain sum in satisfaction of the judgment. This compromise was held to be binding upon the infant children. The court said, “the widow alone had the right of action, and she had the right to accept satisfaction and discharge the defendant. Rev. Code Miss. 1880, sec. 1510. Her children must look to her and not to the defendant. A mother’s love is a sufficient safeguard against improperly acquitting a defendant from liability, and the law in such cases as this has committed the interests of the children to the mother. To her is committed the right of action and she alone may control it.

So also in Toole v. Jones, 32 Pitts. L. J. 387, the court expressed the opinion that “The statute having invested the widow with the power to bring suit for herself and children, she could compromise and settle the claim without suit, when it is done fairly. In which case she would be accountable to the children for two-thirds of the amount received, just as though she had recovered at the end of a suit.”

Much can be said on the other side of the question as to the inexpediency of allowing the widow to compromise the rights of the children, and there is respectable authority for the position that no such power is invested in her. Judge Simonton in Styles v. Penna. Steel Co., 2 Dauphin Co. Rep. 257, held that the widow could not discontinue an action brought for the use of herself and children without their consent. And the supreme court of Texas has decided that the widow had no power under the statute of that state to compromise or release the rights of her minor children. Under a similar statute of the territory of Arizona, it was held that the widow could not remit any portion of a verdict in favor of the other beneficiaries: Southern Pacific Co. v. Tomlinson, 163 U. S. 369 (16 Sup. Ct. Repr. 1171). But under these statutes, as we have said, there is a specific finding by the jury in favor of each beneficiary, and not as with us a general verdict for the plaintiff.

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

Grant Herring, with him F. S. Wagenseller, for appellant.

A widow cannot, under the Act of April 26, 1855, P. L. 309, compromise and release the rights of children, without their knowledge or consent after suit brought: Lewis v. Turnpike Co., 203 Pa. 511; Lehigh Iron Co. v. Rupp, 100 Pa. 95; Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419; Lewis v. Turnpike Co., 203 Pa. 511; Stahler v. Reading Ry. Co., 199 Pa. 383; Styles v. Steel Co., 2 Dauphin Co. Rep. 257; McClaughry v. McClaughry, 121 Pa. 477; Bentley v. Reading, 22 W. N. C. 60; Eastman v. Wright, 23 Mass. 316; Brazier v. Tarver, 4 Ala. 569; Peterson v. Lothrop, 34 Pa. 223; Mella v. Northern Steamship Co., 127 Fed. Repr. 416; Galveston, Harrisburg & San Antonio Railroad Co. v. LeGierse, 51 Texas, 189; Southern Pacific Co. v. Tomlinson, 163 U. S. 369; Burt v. McBain, 29 Mich. 261; Turner v. Patridge, 3 P. & W. 172; Kings-bury v. Buckner, 134 U. S. 650 (10 Sup. Ct. Repr. 638) ; O’Donnell v. Broad, 2 Pa. Dist. Rep. 84; Toole v. Jones, 32 Pitts. L. J. 387; Bentley et al. v. Reading, 22 W. N. C. 60; Borough of So. Easton v. Reinhart, 13 W. N. C. 389.

That injustice may sometimes be done the children through mistake in accepting in compromise a smaller sum of money than could be recovered from the defendant, or by the appropriation of the entire fund by the widow to her own use, is no doubt true, but those are perils common to all trusts, and the interests of children could not, as a rule, be committed to a more careful and faithful trustee than their mother. If, as claimed, it is fraught with evil and liable to abuse, the remedy is in the legislature, not in the courts.

And now, to wit, November 15, 1909, judgment is directed to be entered for the defendant non obstante veredicto.

Clarence E. Sprout, with him John E. Cupp, and Charles P. Ulrich, for appellee.

Under the acts the widow is the required and absolutely essential plaintiff, when living, and upon her devolves the duty of prosecuting or settling the action: Marsh v. R. R. Co., 204 Pa. 229; Allison v. Powers, 179 Pa. 531; Lewis v. Turnpike Co., 203 Pa. 511.

While the question raised in this case, as was stated in the preceding part of this argument, has never been passed upon by the appellate courts of this state, yet questions of like import have been passed upon by the appellate courts of other states, in considering statutes worded practically as the Pennsylvania statutes are worded: Foot v. Great Northern Ry. Co., 81 Minn. 493 (84 N. W. Repr. 342); Parker v. Providence, etc., S. S. Co., 17 R. I. 376 (22 Atl. Repr. 284); Holder v. R. R. Co., 92 Tenn. 141 (20 S. W. Repr. 537).

March 3, 1911:

Opinion by

Morrison, J.,

This is an action of trespass based on the death of Henry Shambach, caused, as alleged, by the negligence of the defendant. The verdict of the jury has settled the question of the defendant’s negligence and the lack of contributory negligence by the deceased, and these questions are not raised in this appeal.

The deceased was survived by his widow, Ida Shambach, and nine children, named in the declaration, all, or nearly all, of them minors. By the Act of April 15, 1851, P. L. 669 (see sec. 19, p. 674), an action is given for the death of a person when caused by unlawful violence or negligence; and by the Act of April 26, 1855, P. L. 309, the persons entitled to recover are the husband, widow, .children or parents of the deceased, the sum recovered going to them in the proportion they would take the per-

sonal estate of the deceased in the case of his or her intestacy. These acts determine the right to recover, which does not exist at common law and has no existence outside of them. It has been decided that these acts are in pari materia. And it is conclusively established by a line of decisions of our Supreme Court that when there is a husband or widow, children are not only not necessary, but not even proper parties, but it is necessary to name them in the declaration: Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419; Haughey v. Pittsburg Rys. Co., No. 2, 210 Pa. 367; Black v. B. & O. R. R. Co., 224 Pa. 519. The right of action cannot be assigned by the widow to a child, so as to enable suit to be brought in her name for its benefit: Marsh v. Western New York & Penna. R. R. Co., 204 Pa. 229, and by the plain terms of the act of 1855 the children cannot bring suit for themselves in their own names while the widow is living.

In the present case, after the widow had brought the action to recover damages for herself and the nine children of the deceased, and had named the latter in the declaration, as required by the act of 1855, she, on December 10, 1907, in consideration of $750 paid to her by the defendant, executed and delivered, under her hand and seal, a release and discharge of the defendant from all claims and demands of any kind for or by reason of, or in any way growing out of the accident, or death of said Henry Shambach. Thereafter it was sought at the trial of the case to recover, notwithstanding this release, the proportion of the damages claimed by the children, to wit, two-thirds of such sum as might be allowed by the jury. It is conceded that the widow favored such recovery. The defendant’s counsel offered said release in evidence and claimed that it ended the suit; in substance, that the widow having the statutory right to bring and carry on the suit, and recover the damages allowed by the court and jury, necessarily had the right to compromise and settle the suit for a good and valuable consideratiqn. The trial judge admitted the release in evidence, notwithstanding the objection of plaintiff’s counsel, and noted an exception and sealed a bill for plaintiff, reserving the question of the effect of the release, and submitted the case to the jury, and the result was a verdict in favor of plaintiff for 11,320.80 for the use of the children. Thereupon defendant’s counsel moved the court for judgmént non obstante veredicto,- and upon argument and consideration, the court subsequently granted such judgment for the defendant. To this judgment the plaintiff excepted and the court sealed a bill of exceptions as required by the Act of April 22, 1905, P. L. 286.

We do not understand that any question is raised as to the sufficiency of the release to end the case, provided, the widow, plaintiff, had the power to compromise the claims of the children and release their rights. It thus appears that the single question now raised for decision is, Was the court right in holding that the widow, plaintiff, had the power to compromise and settle the case without ■the consent of a guardian of the minor children, and without the approval of the court whose wards the said minors were? It is conceded that this exact question has not been decided by either of the appellate courts of this state. At the argument and on first consideration of this question we were inclined to think the court erred in granting judgment for the defendant non obstante vere-. dicto. But on more careful consideration of the acts of assembly, the authorities, the opinion of the court, and the arguments of the able counsel representing both sides of the case, we are forced to the conclusion that the judgment is right. It having authoritatively been decided in many cases by our Supreme Court that the widow is the proper party to sue in her own name and carry the suit to judgment and collection, it is difficult to see why she may not compromise and settle the case for a valuable consideration when she is not overreached or defrauded.

The able counsel for plaintiff cites and relies with much apparent confidence on the following cited and other cases: Lewis v. Turnpike Co., 203 Pa. 511, where Mr. Justice Mitchell said: “The act first gives the right of action and then prescribes the mode of distribution of the sum recovered, but that necessarily means distribution among those entitled to sue. It would be absurd to suppose that in the same sentence the statute meant to give part of the damages to those to whom it had denied the right of action.” We think the counsel draws an erroneous conclusion from this language. It refers mainly to the question of distribution and what is said about the right to sue refers to these who under certain conditions have that right. If the widow be dead, the children have a right to sue. A portion of the damages belongs to them and they are interested in the distribution. But the language of Mr. Justice Mitchell does not mean that the children are parties to the suit of the widow except that they are to be named in the declaration for the purpose of distribution.

We also think the language of Mr. Justice Sterrett, in Birch et al., v. Ry. Co., 165 Pa. 339, does not bear the construction put upon it by plaintiff’s counsel. Counsel argues from that authority that even where the widow survives, the children have the right to maintain an action. This view is in conflict with the act of 1855 and with the adjudicated cases thereon. The children do not have the right to sue and carry on an action while the widow is alive. Counsel also cites Lehigh Iron Co. v. Rupp, 100 Pa. 95, but we do not think that case sustains plaintiff’s contention. On page 99, Mr. Justice Trunkey, speaking for the Supreme Court, said: “When a husband or wife recovers damages, and there are children of the deceased, the provisions of the statute for distribution under the intestate law applies, and strictly accords with the main object of the statute, which is a remedy for the loss to the family.” That case concedes that the suit is to be brought and carried on by the husband or wife but that the children are interested in the distribution, and it does not sustain the proposition that the children are necessary parties to the action. The learned counsel also cite a number of cases where the widow and children were joined as plaintiffs, but they must and do concede that the authoritative decisions of the Supreme Court are that the suit should be brought in the name of the widow while she survives. Counsel cite and urge upon our consideration a decision by the late Judge Simonton in Styles v. Steel Co., 2 Dauphin County, 257; 7 Del. County, 456. That case is not binding upon us although we entertain great respect for a decision of that able judge. The case is not well reported, but it seems to have been an attempt on the part of the widow to discontinue an action brought to recover damages caused by the death of the husband and father. What Judge Simonton really decided was that the widow could not discontinue the suit. It must be borne in mind that when an action is pending it is always within the discretion of the court whether or not the plaintiff shall be allowed to discontinue it. There may have been strong reasons why that case was not allowed to be discontinued. The widow might have been moved by improper motives. It must be and is conceded that the children have an equitable right or title to their shares of the damages recovered by the widow and if she does not recognize their rights, she will be declared a trustee of the fund upon a proper application to a court of equity having jurisdiction of the parties: Allison et al. v. Powers, 179 Pa. 531; Lewis v. Turnpike Co., 203 Pa. 511.

In support of the judgment of the court below we do not see that much can be added, with profit, to the lucid opinion of Judge McClure in support of his decision.' In that opinion he refers to and cites a large number of cases from courts of other states arising under statutes more or less similar to ours. The great weight of those authorities in Tennessee, Rhode Island, Minnesota, Mississippi, etc., is in support of the conclusion that the widow in the present case had the power to make the compromise' and settlement in question. As showing the view of another common pleas judge the case of Toole v. Jones, 32 Pitts. L. J. 387, is cited. In that case the court said: “The statute having invested the widow with the power to bring suit for herself and children, she could compromise and settle the claim without suit when it is done fairly. In which case she would be accountable to the children for two-thirds of the amount received just as though she had recovered at the end of a suit. Much importance is attached by appellant’s counsel to some cases decided by the supreme court of Texas and also cases under a similar statute of the territory of Arizona. These cases hold that the widow could not remit any portion of a verdict in favor of the beneficiaries: Southern Pacific Co. v. Tomlinson, 163 U. S. 369. The Texas cases holding that the widow had no power under the statute of that state to compromise or release the rights of her minor children. As we understand the statutes referred to, they require a specific finding by the jury in favor of each beneficiary, and that distinguishes them from our statutes which authorize a general verdict for the widow or husband plaintiff.

We have been referred to an interesting opinion by District Judge Akchbald in Paolo v. Laquin Lumber Company, in the circuit court of the United States for the middle district of Pennsylvania. That was an action to. recover damages under our acts of 1851 and 1855 and we are much impressed with the reasoning of that able judge, and he reaches a conclusion, expressed as follows: “The right to compensation for the death of a person rises no higher than that of the one who is authorized to sue for it; and the right to sue being given by the statute to the widow who is living, no other is qualified. The children have no interest except in the damages which she recovers, and only after she has recovered them. There is no severable share which entitles either of them by himself, as here, to a direct and separate cause of action. It is true that in Toole v. Jones, 32 Pitts. Leg. Journ. 387, a suit was sustained in the name of the wife for the use of the children, after she had settled and released her individual damages, but if that is to be taken as opposed to the views which are here expressed, it is contrary to what was decided in Marsh v. Western New York & Penna. R. R. Co., 204 Pa. 229, and is therefore of no authority. In the Marsh case also, the widow refused to prosecute, which would seem to present as strong a ground for allowing the child to sue for itself, as where she herself is disqualified; and yet it was held insufficient to do so.”

District Judge Hand in the circuit court of the United States for the southern district of New York, in the case of Conover v. Penna. R. R. Co., 176 Fed. Repr. 638, held as follows: “It is quite clear under the law of Pennsylvania that the widow alone is the person in whom the right of action is vested. [Citing several Pennsylvania authorities.] All the proceeds she holds in trust for herself and children; but there is no provision anywhere in the statute by which the interest of the children may be apportioned in the action, and the proceeds are to be turned over to her for distribution. I think that payment to her, or settlement with her, was an effective bar, just as it is in the case of any other trustee, and that the person who deals with her need not follow the application of the proceeds.” The judge then refers to the case of Southern Pacific Co. v. Tomlinson, 163 U. S. 369, and points out why that decision does not apply under the Pennsylvania statutes. “In the first place they were all parties to the record, a procedure which was permitted by the statute. The widow was, therefore, in the position of trying to compromise the interests of other parties to the record than herself. In addition, as permitted by the statute, the jury had assessed separately the recoveries for each of the parties plaintiff, and it is obvious that the widow, being only one of the parties plaintiff, had no right to interfere with the rights of any other than herself. In view of the fact that the Pennsylvania courts do not admit the children as parties plaintiff at all, that case has no bearing upon the Pennsylvania statute.”

It is argued with much earnestness that the view taken by the court below upholding the right of the widow to compromise and settle the claim might result in the children losing their two-thirds of the recovery. This is true. But it is a legislative rather than a judicial question. Under the act of 1855, as construed by our Supreme Court, the children are not parties to the suit, but are only required to be named in the declaration for distributive purposes. It does seem that the statutes which allow the person who is only entitled to one-third of the recovery, to settle and adjust the claims of those entitled to the other two-thirds, is faulty, but this can only be remedied by the legislature.

Notwithstanding the very able and earnest argument and reargument of this case on the part of the counsel for the appellant, we are not convinced that the court below erred in entering judgment for the defendant non obstante veredicto.

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

Henderson, Orlady and Beaver, JJ., dissent.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Central Trust Company v. Fidelity Mutual Life Insurance Company, Appellant.

      Insurance—Life insurance—Incontestability clause—Statement as to age—Act of June 88,1885, P. L. 184-

    1. A provision in a policy of life insurance that if the policy shall have been in continuous force for three years it shall be incontestable except for nonpayment of premiums, is a reasonable and proper provision, and is not against public policy.
    2. Where such a policy contains a table of insurance showing the amount payable in the event of death during any policy year specified, and there is a covenant to pay the sum of money “mentioned in, and in accordance with the table of insurance,” and there is also a clause providing that the policy shall be construed according to the laws of Pennsylvania, the insurance company cannot contest in the fourth policy year the payment of the policy on the ground of misstatement of age in the application. In such a case the company will be required to pay the amount mentioned in the table of insurance, and is not entitled to the benefit of sec. 2 of the Act of June 23, 1885, P. L. 134, which provides that, “Whenever it shall be made to appear that a wrong age has been given in good faith in any application for a policy of life insurance, the company shall not be required to pay the face value of the policy, but such sum as the premium paid would have purchased at the applicant’s real age at the time of effecting the insurance.”
    Argued Oct. 14, 1910.
    Appeal, No. 114, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 4,145, on verdict for plaintiff in case of Central Trust Company, Trustee, v. Fidelity Mutual Life Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance. Before Kinsey, J.
    The opinion of the Superior Court states the case.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $445.30. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Ira Jewell Williams, with him F. H. Calkins and Simpson & Brown, for appellant.
    If the contract was actually formed in Pennsylvania, its laws would become part of the contract so far as respects the nature and extent of its obligation: Sea Grove Bldg. & Loan Assn. v. Stockton, 148 Pa. 146; Newman v. R. R. Co., 15 Pa. C. C. Rep. 625.
    When the policy provides that it shall “be incontestable after two years for the sum payable hereunder,” it means the adjusted amount and not the face of the policy: Doll v. Insurance Co., 21 Pa. Superior Ct. 434.

      Frederick J. Shoyer, with him Henry Arronson, for appellee.
    The appellant is precluded by the terms of the policy from setting up any alleged misstatement of the insured, as to her age, as a basis for altering the sum of money mentioned in the policy. The defense that a policy was obtained by fraud or false statements of the assured cannot be made in an action on a policy containing an incontestable clause, unless such a defense is expressly excepted from the operation of such clause by the terms of the policy: Mass. Benefit Life Association v. Robinson, 42 L. R. A. 261; Wright v. Mutual Benefit Life Assn., 43 Hun, 61; Teeter v. Ins. Assn., 11 N. Y. App. Div. 259; Brady v. Ins. Co., 168 Pa. 645.
    It must be noted here that the policy in question does not have the clause that there was in the case of Doll v. Prudential Insurance Co., 21 Pa. Superior Ct. 434. In the Doll case the agreement was to pay “sum insured on the above terms and subject to correction for misstatement of age, $110.”
    March 3, 1911:
   Opinion by

Rice, P. J.,

In her application, which was made part of the policy and a copy of which was attached thereto, the insured stipulated that the truthfulness of each statement therein was material to the risk, and warranted each and every statement to be full, complete and true. One of the statements was that she was born on June 4, 1847. It appears by the proofs of death, which the defendant offered in evidence generally, and the defendant also offered to prove otherwise, that the insured was born on June 4, 1844. Both of these offers were objected to and rejected on the ground that the incontestability clause of the policy precluded an inquiry into the truthfulness of the insured’s statement as to the date of her birth. The clause provides that “if this policy shall have been in continuous force after two years from the date hereof, it shall, in the event of the death of the insured, be incontestable for the sum payable hereunder, except for nonpayment of premium.” The words of the application upon the same subject are: “Provided always that if the necessary payments be made to keep said policy in force it shall, in the event of my death, be incontestable after two years for the sum payable hereunder.” There is on the second page of the policy a table of insurance showing the amount payable in the event of death during any policy year specified, and the express agreement of the company, as stated in the first lines of the policy, is "to pay the sum of money mentioned in, and in accordance with, the Table of Insurance on the second page hereof.” As the fourth year of the policy had been entered on at the death of the insured and the premiums, excepting for that year, had been paid, the incontestability clause had come into operation. The propriety of the rejection of the defendant’s offers of evidence depends upon the true construction of that clause and particularly the words "the sum payable hereunder.” In tbe absence of any provision of the contract qualifying them, they would plainly mean the sum mentioned in the table of insurance. There is such qualifying provision in one of the conditions of the policy, which entitles the company to deduct from the sum payable thereunder the unpaid portion of the year’s premium, and it is argued by appellant’s counsel that there is another in that clause of the application which reads: "The contract contained in such policy and in this application shall be subject to and be construed according to the laws of the state of Pennsylvania.” If this clause be construed as importing into the contract all of the laws of Pennsylvania applicable to all policies based upon applications containing misstatements 'as to age, it would enable the insurer to successfully defend against any recovery whatever by proof that the misstatement as to age was not made in good faith, and to defend, pro tanto, even though the plaintiff showed that it was made in good faith. A com struction which would render the incontestability clause nugatory is not to be adopted unless imperatively re~' quired by the language of some other clause of the policy. It is plainly not required. The clause relative to the applicability of the laws of Pennsylvania in the construction of the contract plainly means the whole policy with the incontestability clause in it, not the policy independently of that clause. In other words, the law of Pennsylvania governing the construction of the policy is the law of that state governing the construction of policies containing such clause. But it is contended that the parties had in mind sec. 2 of the Act of June 23, 1885, P. L. 134, and. intended to make it a part of the policy as fully as if it had been written into the contract. The section reads as follows: “Whenever it shall be made to appear that a wrong age has been given in good faith in any application for a policy of life insurance, the company shall not be required to pay the face value of the policy, but such sum as the premium paid would have purchased at the applicant’s real age at the time of effecting the insurance.” It will be observed that the language of the section confines it to cases in which a wrong age has been given in good faith. But it can scarcely be supposed that the parties intended that if the jury should determine that the misstatement was made in good faith the sum payable under the -policy should be determined by the act of 1885, and if they should determine that it was made in bad faith the sum payable under the policy should be determined by the table of insurance. The unreasonableness of the conclusion to which such a construction would lead is a weighty argument against its adoption. A further argument against it is found in the well-understood purpose, ,of the incontestability clause. Its purpose is not to preclude inquiry into the truthfulness or good faith of the' statements made in the application, but to fix a time withm which such inquiry shall be made. This is unquestionably a matter concerning which the parties mav contract, .and such contracts have been upheld as reasonable and proper, and not against public policy! The principle involvedis thus expressed in Wright v. Mutual Benefit Life Association of America, 118 N. Y. 237; 6 L. R. A. 731: “No doubt. the defendant held it out as an inducement to insurance by removing the hesitation in the minds of many prudent men against paying ill afforded premiums for a series of years; and m the end, and after the payment of premiums, the death of the insured, and the loss of his and the testimony of others, the claimant, instead of receiving the promised insurance, is met by an expensive lawsuit to determine that the insurance which the deceased has been paying for through many years has not, and never had, an existence except in name. While fraud is obnoxious, and should justly vitiate all contracts, the courts should ex-e7ase~caiNtliarTfaud and imposition should not be successful in annulling an agreement to the effect that if cause be not found and charged within a reasonable and specific time establishing the invalidity of the contract of insurance, it should thereafter be treated as valid.” In Murray v. State Mutual Life Insurance Co., 22 R. I. 524; 53 L. R. A, 742, it was said that the insertion of such a provision in the policy is virtually saying to the insured, “We will take two years m which to ascertain whether your representations are false or not, and whether you have been guilty of any fraud in obtaining the policy; and ih within that penodTwe cannot detect any such falsity or fraud, we will obligate ourselves to make no further inquiry, and to make no defense on account of them.” Again, in Reagan v. Union Mutual Life Ins. Co., 189 Mass. 555; 2 L. R. A. (N. S.) 821, it is said, citing many cases: “Such a provision is reasonable and proper, as it gives the insured a guaranty against possible expensive litigation to defeat his claim after the lapse of many years and at the same time gives the company time and an opportunity for investigation to ascertamwhether the contract should remain in force. It is not against public policy as tending to put fraud on a par with honesty.” The construction given by these and many other cases to the clause is recognized in our own decisions. In a case where the clause was “if the insured shall die three or more years after the date hereof, and after all due premiums shall have been received by the company, the policy shall be incontestable,” our Supreme Court, through Mr. Justice Williams, said: “In considering this question, it is important to remember that the application for insurance and the acceptance of it by the company, which is evidenced by the policy, constitute, when taken together, the contract. If the representations as to age, state of health, or general physical condition, on which the policy was issued, turn out to be untrue, the right of his representative to recover may be contested for that reason and the company may deny its liability under a policy so obtained. The twelfth clause puts a limit upon the time when such objections may be made. If the insured lives for three years and pays all moneys due from him in the meantime, then the statements made in the application are taken to be true. They are no longer contestable. The policy is to be held to be a good and valid contract binding upon the company according to its terms. In case of death happening after three years, the policy, if suit be brought upon it, is not to be defeated by inquiry into representations on which it was based, but the company must be held to performance:” Brady v. Prudential Ins. Co., 168 Pa. 645. Another well-settled principle of construction is to be noticed. _If a policy is so drawn as to require interpretation and to be fairly susceptible of two different constructions, the one will be adopted which is most favorable to the insured. Prima facie, the covenant to pay the sum mentioned in the table of insurance controls, and an exception which would take the case out of the operation of the covenant ought not to be made unless that was the clear intent of the parties. Applying the principle here, it certainly cannot be said with any degree of certainty that the clause relating to the applicability of the laws of Pennsylvania was intended to modify or qualify the general covenant stated at the outset of the policy.

The ease of Doll v. Prudential Ins. Co. of America, 21 Pa. Superior Ct. 434, is not in conflict but in entire accord with the foregoing conclusions. There the policy covenanted to pay a certain sum as provided in a designated schedule, and the schedule provided as follows: “Sum insured on the above terms and subject to correction for misstatement of age, $110.” It is thus seen that the covenant itself fixed the amount of recovery according to the age of the insured at the date of the policy, and, therefore, the incontestability clause did not preclude inquiry as to that question of fact.

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


author: Morrison, J.,

text:
    Burt v. North Philadelphia Trust Company, Appellant.

      Res adjudicata—Banks and banking—Assumpsit for deposit-Trespass for dishonoring a check—Actions.

    Where a depositor sues a bank in assumpsit for his money on deposit, and recovers a final judgment for the same with interest as damages for its detention, he cannot thereafter maintain an action of trespass to recover damages for injuries, to his credit caused by the refusal of the bank to pay on his orders and demand the same money.
    Argued Oct. 13, 1910.
    Appeal, No. 118, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1905, No. 3,856, on verdict for plaintiff in case of John E. Burt v. North Philadelphia Trust Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for dishonoring a check. Before Brégy, J.
    At the trial the jury returned a verdict for plaintiff for $483.50. Subsequently the court entered judgment on the verdict dismissing defendant’s motion for judgment non obstante veredicto.

      Error assigned was in dismissing defendant’s motion for judgment non obstante veredicto.

      F. L. Clark, of Peck, Shields & Clark, for appellant.—
    The legal principle involved is that a plaintiff cannot bring two separate suits for one cause of action: Hyde v. Kiehl, 183 Pa. 414.
    A depositor can sue in assumpsit or he can sue in trespass: First Nat. Bank of Tamaqua v. Shoemaker, 117 Pa. 94; Citizens’ Nat. Bank v. Bank, 119 N. Y. 195 (23 N. E. Repr. 540); Burroughs v. Tradesmen’s Nat. Bank, 87 Hun, 6; Marzetti v. Williams, 1 Barn. & Adol. 415; Rolin v. Steward, 14 C. B. 595; Hopkinson v. Forster, L. R. 19 Eq. 74; Larios v. Gurety, L. R. 5 P. C. 346.
    Having chosen the form of remedy and pursued it to judgment no further action will lie: Kilheffer v. Herr, 17 S. & R. 319; Marsh v. Pier, 4 Rawle, 273; Gilchrist v. Bale, 8 Watts, 355; Man v. Drexel, 2 Pa. 202; Carvill v. Garrigues, 5 Pa. 152; Miller v. Wilson, 24 Pa. 114; Simes v. Zane, 24 Pa. 242; Corbet v. Evans, 25 Pa. 310; Logan v. Caffrey, 30 Pa. 196; Alcott v. Hugus, 105 Pa. 350; Head v. Meloney, 111 Pa. 99; Buck v. Wilson, 113 Pa. 423; Hill v. Joy, 149 Pa. 243; Bendernagle v. Cocks, 19 Wend. 207; Pennock v. Kennedy, 153 Pa. 579; Schwan v. Kelly, 173 Pa. 65; Eisenhower v. School Dist., 13 Pa. Superior Ct. 51; Raisig v. Graf, 17 Pa. Superior Ct. 509; Jenkins v. Scranton, 205 Pa. 598; Roney v. Westlake, 216 Pa. 374; Griffin v. R. R. Co., 102 N. Y. 449 (7 N. E. Repr. 735); Norton v. Doherty, 69 Mass. 372; Trask v. R. R. Co., 84 Mass. 331.
    The operation of the rule is independent of the form of action: Finley v. Hanbest, 30 Pa. 190.
    The evidence in the. second suit would have been equally available in the first suit: Raisig v. Graf, 17 Pa. Superior Ct. 509.

      Oliver E. Shannon, with him Wendell P. Bowman, for appellee,
    cited: Stradley v. Cement Co., 19 Pa. Dist. Rep. 45; Patterson v. Marine Nat. Bank, 130 Pa. 419; Rolin v. Steward, 14 C. B. 595; Birchall v. Third Nat. Bank, 15 W. N. C. 174.

      March 3, 1911:
   Opinion by

Morrison, J.,

This is an action of trespass brought to recover damages for the refusal of the defendant company to pay checks drawn by the plaintiff against his deposit with it, and for paying the money by the defendant to another party.

On July 14, 1904, the plaintiff was a depositor in the defendant company. A dispute arose as to the amount and ownership of his deposit. Afterwards he drew several checks against his deposit, payment of which were refused. A year after payment of the last check was refused he sued the defendant in assumpsit and declared for the amount of his deposit, with interest. That suit was begun on August 31, 1905, and final judgment was entered therein on October 9, 1905, for $474.67, being the amount of the plaintiff’s claim with interest, and this judgment and costs were paid by the defendant.

On November 13, 1905, the plaintiff began a suit in trespass for damages alleged to have been caused by the refusal of the defendant company, to pay on demand the same money recovered in the above action of assumpsit. This latter suit was tried in common pleas No. 1 of Philadelphia county, and on February 17, 1910, a verdict rendered in favor of the plaintiff for $483.50. Before verdict defendant’s counsel moved the court to instruct the jury that, “Under all the evidence the verdict must be for the defendant.” This point was refused and the case went to the jury. After verdict defendant moved for judgment non obstante veredicto upon the whole record. The court dismissed this motion and judgment was entered for the plaintiff upon the verdict. To this action of the court a bill of exceptions was sealed at request of defendant’s counsel, and the defendant appealed.

• The trial and final judgment in the assumpsit case settled the question that the defendant was in the wrong in refusing to pay plaintiff’s checks and in paying over his deposits to another party, and we do not propose to discuss the merits of that case. That judgment established the fact that the defendant had money of the plaintiff which it refused to pay on his orders and demand and that he was entitled at least to recover damages equal to the amount of his money and interest thereon and he might have recovered in that suit any damages he may have suffered by reason of the breach of duty by the defendant company. At the trial of the trespass case both plaintiff and defendant put in evidence the full record of the trial and judgment in assumpsit between the present plaintiff and defendant, in common pleas of Philadelphia county at No. 5147, June Term, 1905. The declaration, in the latter case claimed the money deposited with the defendant company by the plaintiff and interest thereon, and the result was a judgment for the plaintiff for $474.67. The declaration contained no count for damages other than the amount of money on deposit and interest thereon from July 28, 1904. At the trial and here it was conceded that the said assumpsit suit and the present trespass case are between the same parties, and that the cause of action in both cases grew out of the refusal of the defendant company to pay the same money on deposit with it on plaintiff’s demand.

The single assignment of error is: “The Court below erred in dismissing the defendant’s motion for judgment non obstante veredicto upon the whole record, as follows,” etc., quoting the motion.

The single question raised for our decision is, Could the plaintiff sue in assumpsit for his money on deposit with the defendant company and recover a final judgment for the same, with interest as damages for its detention, and thereafter sue and recover in this action of trespass damages to his credit, or otherwise, for the refusal of the defendant to pay on his orders and demand the same money? We are without doubt that this question must be answered in the negative, and our purpose here will be to demonstrate as briefly as may be, from the text-writers and decided cases running back nearly to the Revolution, that the first judgment when put in evidence in the present case was a complete bar and the court should have directed a verdict in favor of the defendant, and failing to do this, the court ought to have entered judgment for the defendant non obstante veredicto.

The principle here involved is that a plaintiff cannot bring two separate suits for one cause of action and carry both suits to final judgments. Decisions in all jurisdictions establish the principle that a plaintiff cannot try his suit in parts. There is no doubt about this rule. The principle has been stated in the text-books thus: “A controversy once determined, resulting in a final judgment upon the merits, by a tribunal having jurisdiction of the person and the subject-matter of the action, is conclusive of the cause of action and all the essential facts in said action against the parties, their personal representatives, assignees and privies in every other tribunal, and not only concludes such parties and their privies in a subsequent action based upon the same cause or causes, but in any action that may be instituted between them and their privies: ” 1 Herman on Estoppel, sec. 133.

“A judgment decides every matter which pertains to the cause of action or the defense set up, or which is involved in the measure of relief'to which the cause of action or defense entitles the party, even though such matter may not be set forth in the pleadings, so as to admit proof and call for an actual decision upon it. Whenever a matter is adjudicated and fully determined by a competent tribunal, it is considered forever at rest:” 1 Herman on Estoppel, sec. 125.

“Rejecting, therefore, all those portions of the pleading which describe the remedy or the relief demanded, the inquiry should be directed exclusively to the allegations of fact which set forth the primary right of the plaintiff and the wrong done by the defendant. If one such right alone, however comprehensive, is asserted, and if one such wrong alone, however complex, is complained of, but one cause of action is alleged:” Pomeroy’s .Code Remedies (4th ed.), sec. 351. When the plaintiff deposited his money with the defendant company and the latter refused to pay the- same on demand, this constituted the breach of the depositor’s primary right, and was the “cause of action” on which the plaintiff’s remedial right is based. When this breach occurred the plaintiff’s remedial right resulted and the law gave him a remedy and it was one of two possible kinds of remedies. The relation between banker and depositor results in an implied contract between them. When that contract is broken the law provides a remedy for the breach. That remedy may be by an action in assumpsit or under our procedure an action of trespass. In any event, the remedy is by a suit against the bank. ■

The plaintiff’s cause of action was damages resulting from the refusal of the defendant company to pay his money on deposit with it on demand, and the plaintiff was bound to recover all of the damages he suffered thereby in one suit. Whether that suit should be in assumpsit or trespass on the case was at the option of the plaintiff. We think the authorities are uniform on this point. In First Nat. Bank of Tamaqua v. Shoemaker, 117 Pa. 94, the Supreme Court held: “That a depositor could sue the bank to recover damages for dishonoring his check, or he could bring an action in assumpsit to recover the amount of his deposit as for money had and received; .... that he may sue the bank in tort for the wrong done, or in assumpsit for the breach of the implied contract to honor promptly the customer’s checks. In such action nominal damages may-be recovered though no actual damages be shown.” That case alone decides that the plaintiff was bound to declare for and recover his damages in the action of assumpsit.

In Citizens’ Nat. Bank v. Bank, 119 N. Y. 195, it was decided that a failure of a bank to obey an order for the payment of money standing to the credit of the drawer of the check was a breach of the defendant bank’s duty and contract, for which it is legally liable either in tort, or upon the contract. To the same effect is Burroughs v. Tradesmen’s Nat. Bank, 87 Hun, 6. In England the law is the same. In Marzetti v. Williams, 1 Barn. & Adol. 415, the action was for nonpayment of a check and the declaration sounded in tort. Tenderden, Chief Justice, delivering the opinion, said: “Now this action is, in fact, founded on a contract, for the banker does contract with his customer that he will pay checks drawn by him, provided he, the banker, has money in his hands belonging to that customer. ... It is immaterial in such a case whether the action in form be in tort or in assumpsit. It is substantially founded on a contract; and the plaintiff, though he may not have sustained a damage in fact is entitled to recover nominal damages.” Parke, J., concurring said: “This action being substantially founded on a contract I think it can make no difference whether it is in form tort or assumpsit.” The principle is affirmed again in Hopkinson v. Forster, L. R. 19 Eq. 74. It will be noticed that all of the cases agree that a depositor may sue the bank in tort for the wrong done or in assumpsit for the breach of the implied contract; that a bank is legally liable either in tort or upon the contract. But none of the cases hold that the bank is liable to the depositor in an action of tort and of assumpsit.

The important fact for consideration in the present case is that there is one wrong and only one when a bank refuses to pay a deposit on a depositor’s order. The law often gives a choice of remedies but never did allow a man to have two civil remedies for the same wrong, and permit him to pursue one and then the other. A double civil satisfaction for the same wrong is unknown to the law. It is clear that the right of action which the plaintiff had when the defendant company refused to pay his deposit resulted from the relation between banker and depositor. The refusal of the bank to pay was the cause of action, and from this his remedy sprung.

On August 31, 1905, plaintiff sued in assumpsit. He could at that time have done one of three things—First: He could have sued in assumpsit and claimed not only his deposit and interest thereon, but damages for breach of the implied contract and any special injury resulting therefrom. This is clear from the authorities already cited. But in Zell v. Dunkle, 156 Pa. 353, the Supreme Court, in an opinion by Mr. Justice Williams, expressly decided that damages for negligence can be obtained in an action of assumpsit. In Larios v. Gurety, L. R. 5 P. C. 346, it was argued that the cause of action being merely the breach of an agreement to pay money, no damages could be recovered except the principal and interest. But the court held that the plaintiff was entitled to “general and substantial damages,” to which should be added the balance on deposit. Second: He could have sued in trespass. This is clear and appears from the authorities already cited. Third: He could have sued in assumpsit and claimed simply his deposit and interest. Of the three possible remedies which the law gave him he chose the latter, and by that choice he is bound. This principle is as old as the law itself. It is embodied in the maxim “Nemo debet bis vexari pro eadem causa.” This principle is set forth by text-writers and by courts in many forms and in many cases. One statement of the rule is: “In all personal actions concerning goods, chattels and debt, a recovery in one action is a bar in another, and there is an end of the controversy; the judgment which is the fruit of the action, concludes the existence of the right:” 2 Troubat & Iialy’s Prac. (5th ed.), sec. 1615. This principle is recognized in Kilheffer v. Herr, 17 S. & R. 319, also in Marsh v. Pier, 4 Rawle, 273. In Gilchrist v. Bale, 8 Watts, 355, the plaintiff sued in trespass on the case for enticing away his wife. The defendant offered in evidence in bar a former suit by the plaintiff for assaulting and debauching his wife. The lower court rejected the evidence, and on appeal the judgment was reversed by the Supreme Court. To the same effect is Man v. Drexel, 2 Pa. 202. In Carvill v. Garrigues, 5 Pa. 152, the Supreme Court said: “No principle is clearer or better settled, than that a party cannot separate one entire cause of action into parts and sue for one on one occasion, and for the other at another.” In Miller v. Wilson, 24 Pa. 114, Black, Chief Justice, said: “But on a tort, or on a duty or promise, which has already been violated as grossly as it ever can be, there is but one action, and in that the injured party must have full justice.” Simes v. Zane, 24 Pa. 242, is to the same effect. In that case the Supreme Court said: “The right which Zane had to elect one out of several forms of action, is not a right to split up his claim into several actions, or to supplement an incomplete remedy which he may have chosen, by giving him another in addition. . . . But the rule that prevents him from splitting up his cause of action into several fragments, takes away his right of action for the residue en-, tirely. Having once claimed by action or defense a part of an undivided subject-matter, the law allows him no remedy for the other part, else there could be no limit to litigation. Corbet v. Evans, 25. Pa. 310, is to the same effect.

In Logan v. Caffrey, 30 Pa. 196, there was an action for wages and some of the items were withdrawn for want of evidence. Judgment was entered for the balance. Then the plaintiff brought action for the items withdrawn in the first suit. The defendant offered in evidence the record of the former suit. There was a verdict for the plaintiff but the Supreme Court reversed the judgment thereon. In that case, among other things, the Supreme Court said: “So where a tort consists in wrongfully taking several chattels, a plaintiff is not at liberty to split up his cause of action into as many parts as there are chattels; but if he recovers in an action for part, it concludes him as to the whole.” Alcott v. Hugus, 105 Pa. 350, is another case to the same effect; see also Head v. Meloney, 111 Pa. 99; Buck v. Wilson, 113 Pa. 423.

Another important case is Hill v. Joy, 149 Pa. 243. The plaintiff had leased oil lands to the defendant, and was to receive a portion of t&e oil. He sued the defendant and recovered a verdict for royalties due him for oil taken out of the land. He then sued again, claiming damages for the defendant’s failure to operate for oil on the whole of the land leased. The court held the first suit barred the second, and entered judgment for the defendant. See also Pennock v. Kennedy, 153 Pa. 579; Schwan v. Kelly, 173 Pa. 65; Eisenhower v. School Dist., 13 Pa. Superior Ct. 51; Raisig v. Graf, 17 Pa. Superior Ct. 509.

In Bendernagle v. Cocks, 19 Wendell, 207, the court held: “All damages accruing from a single wrong, though at different times, make but one cause of action; and all debts or demands already due by the same contract make one entire cause of action. Each comes under the familiar rule, that if a party will sue and recover for a portion, he shall be barred of the residue.” Griffin v. Long Island R. R. Co., 102 N. Y. 449, contains a clear and concise statement of the law on this question.

The operation of the rule we have been discussing is independent of the form of action, This was expressly decided in Finley v. Hanbest, 30 Pa. 190, where Mr. Justice Woodward, speaking for the Supreme Court, said: “It is not material, I agree, that the former suit was in tort, and this one in contract; for where the same matter has been previously adjusted, the .effect of the adjudication is not dependent upon the form of action.”

The court below- and the counsel for appellee seem to rely entirely upon the two cases of Patterson v. Marine Nat. Bank, 130 Pa. 419. Those cases are well reported and they grew out of a transaction quite similar to the one giving rise to the present suit and the former action of assumpsit to which we have referred. On December 31, 1887, to No. 508, January Term, 1888, in the court below, the plaintiff brought assumpsit against the Marine National Bank of Pittsburg to recover a balance alleged to be due the plaintiff upon a deposit account opened by him with the defendant bank. Issue. On the same day, to No. 509 of the same term, an action in case, ■ between the same plaintiff and defendant, was brought to recover damages for a refusal by said bank to honor a check drawn by the plaintiff upon his said account. Issue. The two cases were tried together on February 11, 1889, before the court and the same jury and a verdict and judgment thereon was recovered in each case. It does not appear that the court below made any order requiring the cases to be tried together, and the inference is irresistible that the counsel representing the respective parties must have agreed to so try the cases. The verdicts and judgments were rendered and entered at the same time. It does not appear in the report of the cases that any question was raised in the court below as to the right of the plaintiff to bring and carry on the two suits to judgment. In fact the cases were tried substantially as if one suit had been brought and the plaintiff had declared for the money on deposit and interest thereon, and for the damages he sustained by reason of the bank refusing to honor his checks and to pay the money on demand. Another thing to be noticed is that the cases being tried together neither one could have been offered as a bar to the other since no final judgment was obtained in one before the other. The cases were appealed to the Supreme Court and the assignments of error there raised no question as to the right of the plaintiff to maintain and recover in the two suits. Of course the Supreme Court would not raise and decide any questions that were not raised in the court below and the disposition of them assigned for error. We therefore consider those cases as having no bearing whatever upon the present ease. The counsel for the respective parties saw fit in those cases to try them both together upon their merits without raising any question as to the method of procedure, and the Supreme Court simply determined that there was. no reversible error raised by the assignments of error. In disposing of the present case the court below said that he was controlled by Patterson v. Marine Nat. Bank, 130 Pa. 419, and added: “In that case it is true that the two suits were tried together and the point now raised was not there brought to the attention of the court.”

Doubtless the method of trying the cases resulted in the plaintiff recovering double damages, but that was no fault of the court. The defendant’s counsel could have avoided that result by asking the court to compel the plaintiff to elect upon which case he would go to trial and staying proceedings in the other case until final judgment was reached in the case elected to be tried. Then if the plaintiff moved for trial in the remaining case, the former one could have been pleaded and put in evidence in bar of the latter. By the method pursued in trying both cases together it is highly probable that the jury practically allowed the plaintiff damages equal to the amount of his money and interest in each suit, but if the cause of action had been tried in one suit, the plaintiff might not have recovered more than nominal damages in excess of his money and interest thereon.

It is idle to contend that the Supreme Court,- in the brief opinion filed, intended Patterson v. Marine Nat. Bank, 130 Pa. 419, to overrule the long line of cases upon the subject involved in the present controversy, running from the organization of our courts down to the present time.

There is an additional reason why the action in assumpsit was a bar to the present suit and that is that the evidence in the second suit would have been equally available in the first suit. In Raisig v. Graf, 17 Pa. Superior Ct. 509, we said: “When the evidence in the second suit would have been equally available in the first suit, then the verdict and judgment in the first suit is an absolute bar to any recovery in the second.” The foregoing rule is supported by many Supreme Court cases. It requires no argument to demonstrate that the evidence competent to sustain the plaintiff’s claim in the second suit would have been competent and pertinent in the action of assumpsit.

The assignment of error is sustained, and we now direct the court below to enter judgment on the whole record in favor of the appellant non obstante veredicto, with all costs, including those of this appeal.


author: Oready, J.,

text:
    Yetter v. Yetter, Appellant.

      Husband and wife—Bill in equity for support—Act of May 28, 1907, P. L. 227.

    A bill in equity under the Act of May 23, 1907, P. L. 227, by a wife against her husband who had separated from her, to compel him to support herself and infant child, will be dismissed where the husband shows that he had separated from her because of her numerous acts of personal violence and unjustifiable cruelty and abuse, and also shows that he had made four offers in good faith to resume life with her, all of which she had refused, and renews such offers in apparent good faith at the trial, although at first declining to do so.
    Argued Oct. 18, 1910.
    Appeal, No. 121, Oct. T., 1910, by defendant, from decree of C. P. Wyoming Co., Equity Book 3, p. 301, on bill in equity in case of Ann Henwood Yetter v. Alfred E. Yetter.
    Before Rice, P. J., Henderson, Morrison, Oriady, Head, Beaver and Porter, JJ.
    Reversed.
    Bill in equity to compel a husband to support his wife. Before Terry, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court entered a decree directing the defendant to pay $400, and thereafter the sum of $50.00 per month.

      Error assigned was the decree of the court.

      B. H. Holgate, with him Fred Heeler, and John P. Kelly, for appellant.
    Separation is not desertion: Middleton v. Middleton, 187 Pa. 612; Chambers v. Chambers, 20 Pa. C. C. Rep. 41; Ingersoll v. Ingersoll, 49 Pa. 249; Bauder’s App., 115 Pa. 480; Rosenberry v. Rosenberry, 180 Pa. 221; Whelan v. Whelan, 183 Pa. 293.
    Reasonable cause which will justify either spouse in abandoning the other, is such as would entitle the party so abandoning to a divorce: Butler v. Butler, 1 Pars. 329; Doan v. Doan, 3 Clark, 7; Cattison v. Cattison, 22 Pa. 275; May v. May, 62 Pa. 206.

      W._ W. Watson of Watson, Diehl & Watson, with him H. S. Harding, for appellee.
    March 3, 1911:
   Opinion by

Oready, J.,

This record disclosed a condition of marital infelicity, the real merits of which can be best determined by the parties most affected by this action, but when they make resort to a court of equity for its adjustment, the merits of the case must be gauged by rules that have been made to preserve rather than to sever marriage bonds.

The wife filed this bill under the Act of May 23, 1907, P. L. 227, alleging that her husband, without reasonable cause, had separated himself from her, and neglects and refuses to provide suitable maintenance for her and their infant child, and prayed that he be required to provide and furnish suitable support, etc. An answer was filed in which the separation was admitted, but it was denied that it was without reasonable cause, and that he was obliged to separate himself and remove from the residence of his wife on account of the cruel and barbarous treatment which he had received at her hands, and which rendered his condition intolerable and life burdensome, etc.

The case was heard on bill, answer and proof before the court, and' a voluminous amount of evidence was taken, represented by 175 pages of printed record, the greater part of which is entirely irrelevant or is a repetition of facts that were not controverted. The course of the trial on both sides tended to make it difficult to effect a reconciliation rather than to encourage such a conclusion.

At the time of their marriage, October 17, 1906, the husband was aged twenty-nine years and the wife twenty-one years. He was a college, and she a normal school graduate. Soon after the marriage, controversies arose, many of them in regard to trivial matters, but a recurrence of these and others of more importance culminated in his withdrawing from their home on August 29, 1908, and taking with him a baby boy who had been born on October 19, 1907. The child was soon thereafter restored to the mother through habeas corpus proceedings, and was with her at the time of the hearing.

This act of assembly provides, that if any man shall separate himself from his wife without reasonable cause, and being of sufficient ability, shall neglect or refuse to provide suitable maintenance for his said wife, such wife shall be, and is hereby empowered to bring her action at law or in equity against such husband for maintenance, in the court of common pleas of the county where the desertion occurred, or where she is domiciled, and the said court shall have power to entertain a bill in equity in such action, and shall make and enforce such orders and decrees as the equities of the case demand.

The foundation of her right, is to show that the husband did not have reasonable cause to separate himself from her and their child, and that he had not made a good faith offer to again accept her as his wife in his home, and there maintain her. The controlling facts are not seriously in dispute. The actual separation had been preceded by a series of acts on the part of the wife, which are not challenged by her, and were so important a part of their everyday life that they may be considered as continuing and cumulative. She admits that she used profane language to him; grabbed him by the hair with both hands and pulled hard; struck him in the face a number of times; threw articles of table furnishings at him, a cake turner, a napkin ring, etc.; called him a damn fool; said she did not give a damn for him and frequently said that she hated him and would not live with him; was disagreeable to his friends when in his home, and other acts of similar gravity.

Two days prior to his leaving, while they were at table she threw at him a lot of knives, forks, spoons and table silver which barely missed the baby. On August 29, while the wife was away from the house, he wrote and left for her a letter stating: “This is to inform you that the end has come. I cannot and will not endure any longer the life I have had for nearly two years. ... I will look out for your support until you are in a position to support yourself, etc,” and left the house with all the furniture remaining in it. The same day he wrote to his wife's father narrating his grievances against his wife and to each he stated “just how much is to be made public depends upon my wife.” On the other hand, there is but very slight evidence of any impropriety on the part of the husband except that they differed in regard to marital relations and that on one occasion he slapped his wife with an open hand on the face at a time she knocked some medicine out of his hand when he was attempting to give it to their sick babe, and several times he retorted angrily to her when they disputed about household affairs. No gauge has yet been set by which the patience or endurance of a man or woman can be measured under such trying conditions. Each case must in some degree be determined by its own environment, but we doubt if there are many men who would patiently endure such persistent and continuous humiliation. Had this been an action for divorce the foregoing and other like testimony would have been sufficient to have justified the court in finding that he had reasonable cause for separating himself from his wife, and if a jury had resolved the facts in his favor we would have affirmed the judgment as being founded on sufficient evidence to dissolve the marital relation. We said in Russell v. Russell, 37 Pa. Superior Ct. 348, “it has always been the rule in Pennsylvania, that any unjustifiable conduct on the part of the husband or wife which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as seriously to impair the bodily health or endanger the life of the other, or which destroys the legitimate ends and objects of matrimony constitute cruelty, although no physical or personal violence may be inflicted or even threatened or reasonably apprehended: May v. May, 62 Pa. 206; Jones v. Jones, 66 Pa. 494; McMahen v. McMahen, 186 Pa. 485; Howe v. Howe, 16 Pa. Superior Ct. 193; Schulze v. Schulze, 33 Pa. Superior Ct. 325; Fay v. Fay, 27 Pa. Superior Ct. 328; Barnsdall v. Barnsdall, 171 Pa. 625.

But conceding that on that branch of the case the evi-. dence may be insufficient to justify a divorce, on the other ground, whether he has in good faith requested his wife to return to him and resume their marital relations, there is in our minds no doubt. On September 24, 1908, the defendant addressed a letter to his wife, viz.:“ Dear Anne, I have considered all our troubles and am sorry that things have been as they have. I feel that for all concerned we should again try to live together as man and wife are supposed to, and make the proper kind of a home for our boy and ourselves. I therefore ask you to come back to me as my wife, and I agree and ask you to agree, to make a-good effort to forgive and try to forget all the past. I make this request sincerely, with the intention of doing all I can towards living happily together hereafter. I also feel that if we are again to live together, we should immediately decide to do so. Kindly give me an answer at an early date. This agreement upon condition that you willingly agree to the same efforts, etc. Yours most sincerely, Alfred.” On September 26, she replied, declining the proffer for the reason that she “did not have perfect respect and confidence in him,” and concluded “am sorry that I cannot give your desired definite answer”—signed, .“Most sincerely, Anne.” He again wrote on September 28, renewing his offer which, on September 30, she declined, stating, “we are both well and happy, so we had better stay here.” She admits that he had offered several times to take her back and make a home for her and the child, which she as often refused. It is uncontradicted that in October, 1908, he advertised the household goods for sale at private sale; after selling a few articles the sale was adjourned, and the wife was requested to return. After another advertisement she was again requested, the night before the sale, to return and refused.

The court below say that before she could reasonably be required to repose confidence in her husband and intrust herself and child to him, it’was incumbent upon him to make manifest his sincerity in asking a resumption of the marital relation, and bases his conclusion that the offer was not made in good faith, on account of an answer made by the defendant when examined in court, viz.:

“Q. Have you any affection now for your wife? A. At the time I asked her to return, I did have affection for her, and now as the mother of my child I do. There have been too many things happen after I made those offers for me to have the same affection I did once. When I married her I loved her with all my heart, I expected to have a happy life. I reasoned with her many times and tried to have her control her temper, etc. . . . she shook her fist in my face, called me a damn fool in the presence of her mother and the child, after that I thought it was up to her if she cared to come back.” But a few sentences in advance of the above, he states, “When I asked her to come back I was perfectly sincere, I said I would do right. I would make a home for her and Boyd.” And later he testified, and the case in the mind of the court, hinged on the following:

“Q. Do you now offer in good faith and because you love your wife, to take her back to you? A. At the present time I cannot, no. Not after what has transpired, and again while she a few moments ago said she would not return to me. She had declined to do so.”

This examination was conducted under most harrowing conditions, but so far as words can indicate the intention and purpose of the witness, he endeavored to answer truthfully and fairly. Counsel were dealing with psychological processes that had nothing to do with the case, if he meant in good faith to receive his wife as such. That he did so intend is fairly shown by the following examination:

“Q. I think you said this morning you thought you were not prepared to live with your wife, did you? A. Yes, I did. Q. Have you thought over the matter since? A. Yes, I have. Q. Why? A. Well it seems pretty hard to go right on the way this matter has been carried on in fighting, and be refused permission to enter the house and see the child, and again be without a home. It makes it quite lonely, and I am again willing in spite of what I have said, to give her another chance. Q. Are you willing to take this woman back and provide her a suitable place according to your station in life, and treat her with the respect due a wife? A. I am. Q. Do you make this offer in all sincerity and with the intention of carrying it out? A. Yes, sir. Q. And you will do so? A. Yes, to the best of my ability.”

Thirty-eight pages of cross-examination by the plaintiff’s counsel and the court follow this clear and explicit promise, and not a question is asked the defendant as to his good faith in maldng it. It is hard for us to understand what further was expected of him, or how he could have couched a good faith promise in more pertinent terms. True we did not see the witness, but this oral testimony is in exact conformity with his written offers. In all the writings of the wife and in her examination in court there is not an intimation on her part of her willingness to return. This proceeding is in equity; every essential averment in the bill is specifically denied in the answer and proof, and in a large measure, the causes for his leaving the home, and her refusal to return to it are admitted by the wife.

The court could have put the defendant to the test of his good faith by continuing the case for a reasonable time, but this was not done. The defendant promptly attempted a reconciliation with his wife. There was nothing inconsistent in his attitude toward her. He tried to save the home furniture and sold it only after the wife had four times refused to return to him. He was not shown to be of evil or dissolute habits or that he was actuated by any other than a proper motive in resuming his home relation with his wife and baby. He was engaged in honorable employment at fair wages and could readily perform his undertaking, and so far as this record shows he was entitled to have his promise made under oath taken at its face value. How else could he make manifest his sincerity and good faith? Being the plaintiff in such a proceeding, equity expects of her that she shall at least meet her husband halfway. This she has persistently refused to do, and is not entitled to the relief furnished by the act under which she has proceeded.

The decree is reversed, and the bill is dismissed.


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    Commonwealth ex rel. v. Dilks, Appellant.

      Husband, and wife—Desertion—Order for support—Appeals—Certiorari.

    An appeal from an order of the court of quarter sessions requiring a husband to pay a weekly sum for the support of his wife is in the nature of a common-law certiorari, and on it the appellate court can only determine whether or not the record and proceedings are regular in form. On such an appeal the evidence given on the hearing, although printed in the paper-book, cannot be resorted to to determine questions of fact, nor can the facts recited in the opinion of the lower court be examined or looked into.
    Argued Oct. 19, 1910.
    Appeal, No. 125, Oct. T., 1910, from order of Q. S. Phila. Co., for support in the case of Commonwealth ex rel. Charlotte Dilks v. Park B. Dilks.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Return of proceedings in desertion.
    The opinion of the Superior Court states the case.

      Error assigned was the order for support.

      Walter Biddle Saul, for appellant.
    There was no conviction of desertion.—In the cases generally, it is recognized that desertion is necessary before an order can be made, although there has been no case where the point has been directly raised: Philadelphia v. Bailey, 8 Phila. 485; Barnes v. Com., 11 W. N. C. 375; Com. v. Smith, 200 Pa. 363; Com. v. James, 142 Pa. 32; Carey v. Carey, 25 Pa. Superior Ct. 223.
    The trial judge abused the discretion vested in him: Keller v. Com., 71 Pa. 413; Demott v. Com., 64 Pa. 302; Com. v. Tragle, 4 Pa. Superior Ct. 159.

      William I. Connor, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
    The effect of an appeal in such a proceeding is merely that of a common law certiorari, and on it nothing is to be determined other than whether the record and proceedings are regular in form: Com. v. James, 142 Pa. 32; Com. v. Smith, 200 Pa. 363; Com. v. Mills, 26 Pa. Superior Ct. 549; Com. v. Isaacman, 33 Pa. Superior Ct. 384; Com. v. Brownell, 35 Pa. Superior Ct. 249.
    March 3, 1911:
   Opinion by

Morrison, J.,

The defendant was arrested on a warrant charging him with desertion and nonsupport of his wife, under the provisions of the Act of April 13, 1867, P. L. 78. The title of the act is, “For relief of widows and children, deserted by their husbands and fathers, within this commonwealth.” The record proper shows that the defendant was charged with wife desertion before a magistrate; that the case was regularly returned to the quarter sessions; that a hearing was had in open court and a final,order made requiring the defendant to pay the sum of $5.00 per week for the support of his wife, Charlotte Dilks, from March 1, 1910, and give security to the commonwealth in the sum of $500 for the faithful performance of this order, pay the costs and stand committed till the order is complied with. This is all regular and in accordance with the statute and the adjudicated cases.

Counsel for appellant makes an elaborate argument based on the proposition that, “There was no conviction of desertion.” The burden of his argument is that under the title the act will not support an order for the maintenance of the wife, except a case of desertion is charged and made out. Granting, arguendo, that this is so, then how does the case stand? The charge of record is wife desertion and neglect to support his wife. The court on hearing made an order for the support of the wife and it is to be presumed in this appeal that he heard evidence and found that the defendant was guilty of desertion.

The effect of an appeal in such a proceeding is merely that of a common-law certiorari, and on it nothing is to be determined other than whether or not the record and proceeding are regular in form: Com. v. James, 142 Pa. 32; Com. v. Smith, 200 Pa. 363; Com. v. Mills, 26 Pa. Superior Ct. 549; Com. v. Isaacman, 33 Pa. Superior Ct. 384; Com. v. Brownell, 35 Pa. Superior Ct. 249.

In Com. v. Smith, 200 Pa. 363, the Supreme Court said: “If the record shows that the husband was charged with desertion, upon the oath of his wife, a hearing, conviction and appropriate sentence, there is nothing for us to do but to approve the judgment.” In Com. v. Brownell, 35 Pa. Superior Ct. 249; it was objected that the record was defective because it did not state that the order had been made after hearing. This court, by President Judge Rice, said: “Although the record of the court below does not state the order was made after hearing, that is to be presumed.” In many of the reviewed and decided cases the record did not affirmatively show that the defendant was convicted of desertion, except as implied from the charge, hearing, and the order for support.

In Com. v. Isaacman, 33 Pa. Superior Ct. 384; we held that neither the finding of the court from the evidence nor the agreement of the counsel as to the facts can be reviewed by the appellate court.

In Com. v. Brownell, 35 Pa. Superior Ct. 249; President Judge Rice, speaking for the court, said: “It is apparent from this general statement of the defendant’s contention that it involves questions of fact which cannot be determined by inspection of the record; and it is needless to say that the evidence given on the hearing, although printed in the paper-book, cannot be resorted to for that purpose. It is equally well settled that the recital of facts in the opinion -filed by the court of quarter sessions in a desertion proceeding does not bring them upon the record for purposes of review.”

The question raised by the learned counsel for appellant in this appeal is, first, one of law as to the meaning of the record in respect of the conviction. This we have determined against his contention. Second, we are asked to find from a recital of facts in the discussion by the court below that there was in fact no desertion.

It is well settled by the above and many other cases that the facts recited in- the opinion filed by the lower court cannot be examined or looked into upon this appeal. What then is the position of the appellant’s counsel? The record does not show that the defendant was not convicted of desertion, but the presumption from it is strong that he was so convicted. Next we are asked to find as a fact that there was no desertion although the learned counsel did not even print the evidence in his paper-book. However, in this he was right, because the law provides no method, in this class of cases, of having the evidence made a part of the record so that an appellate court can review it.

We do not feel called upon to decide the constitutional question discussed by the appellant’s counsel, to wit, that the words of the act of 1867, “Or shall neglect to maintain his wife, or children,” are unconstitutional. It is not clear to us that the quoted words are not a part of the subject indicated by the title. And they seem to be germane to that subject; In Carey v. Carey, 25 Pa. Superior Ct. 223, in an opinion by our Brother Portee we find the following: “The facts upon which the exercise of this jurisdiction is, by the statute, made dependent are, that the husband, 'shall separate himself from his wife, or from his children, without reasonable cause, or shall neglect to maintain his wife or children.’ There must necessarily arise under this statute two classes of cases, one in which the husband separates himself from his wife, deserting her and taking up his own abode elsewhere, and second, the other where the husband neglects to maintain his wife, although he may still continue to reside under the same roof with her. A husband possessed of property, or having the opportunity and ability to work, who neglects to maintain his wife and children, is liable to prosecution under this statute, although he may never have withdrawn from the common home. Maintenance is the sole object of the act: Keller v. Com., 71 Pa. 413; Com. v. Tragle, 4 Pa. Superior Ct. 159.”

The above indicates that neither Judge Porter nor any member of this court believed that the words of the Act “or shall neglect to maintain his wife, or children,” are unconstitutional. Of course it is true that the constitutional question was not raised in that case and we do not now decide it.

Order affirmed and appeal dismissed at costs of appellant.


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    Korson, Appellant, v. Nixon.

      Landlord and tenant—Bent—Distress—Moving picture parlor—Films and generator.

    Where a tenant in the course of his business is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property, although on the demised premises, is not hable to distress for rent; but this rule does not apply to picture films and a motion generator used by a tenant in carrying on the business of a moving picture parlor.
    Argued Oct. 20, 1910.
    Appeal, No. 119, Oct. T., 1910, from judgment of C. P. No. 4, Phila. Co., June T., 1909, No. 2,820, sustaining demurrer to statement of claim in case of Louis Korson et al., trading as Philadelphia Film Exchange, v. James H. Nixon, and George B. Wilson, landlord.
    Before Rice, P. J., Hendeeson, Moeeison, Oelady, Head, Beayee and Poetee, JJ.
    Affirmed.
    Replevin for goods seized under a distress warrant.
    Demurrer to statement of claim.
    From the record it appeared that the plaintiff leased films and generators to the Empire Amusement Company, a tenant of George B. Wilson at 1111 Market street, Philadelphia. The amusement company being in default for rent, certain films and generators found on the premises were seized by James H. Nixon, a constable, under a landlord’s warrant. Subsequently the plaintiff issued a writ of replevin for the property seized under the warrant.
    The court sustained the demurrer to the statement of claim in the replevin suit.

      Error assigned was in sustaining the demurrer.

      Charles J. Weiss, for appellants.
    Where the tenant in the course of his business is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property, although on the demised premises, is not liable to distress for rent due thereon from the tenant: Brown v. Sims, 17 S. & R. 138; Riddle v. Welden, 5 Whart. 9; Cadwalader v. Tindall, 20 Pa. 422; Bevan v. Crooks, 7 W. & S. 452; Briggs v. Large, 30 Pa. 287; Karns v. McKinney, 74 Pa. 387; Howe Sewing Machine Co. v. Sloan, 87 Pa. 438; Clothier v. Braithwaite, 22 Pa. Superior Ct. 521; Wanamaker & Brown v. Carter, 22 Pa. Superior Ct. 625.

      Maurice Bower Saul, with him John G. Johnson, for appellees.
    The appellants rely upon a misapprehension of the exception, that all goods necessary for the conduct,, of the business leased from strangers are goods of which the tenant is necessarily put in possession in the course of his business. The exception to the general rule was for the benefit of trade, and has reference to the nature of the business conducted by the tenant: Brown v. Sims, 17 S. & R. 138; Cadwalader v. Tindall, 20 Pa. 422; Jones v. Goldbeck, 8 W. N. C. 533; Page v. Middleton, 118 Pa. 546; Myers v. Esery, 134 Pa. 177; Pickering v. Breen, 31 Pa. Superior Ct. 280; Tufts v. Park, 194 Pa. 79; Walsh v. The Bourse, 15 Pa. Superior Ct. 219; Price v. McCallister, 3 Grant, 248; Whiting v. Lake, 91 Pa. 349; American Pig Iron Storage Warrant Co. v. Coal Co., 205 Pa. 403; Wetherill v. Gallagher, 217 Pa. 635.
    March 3, 1911:
   Opinion by

Rice, P. J.,

One exception to the common-law rule, that whatever goods and chattels the landlord finds upon the demised premises, whether they in fact belong to the tenant or a stranger, are distrainable by him for rent, is thus stated in Karns v. McKinney, 74 Pa. 387, which statement has been approved in many cases since: “Where the tenant in the course of his business is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property, although on the demised premises, is not liable to distress for rent due thereon from the tenant.” The true nature of the exception is seen by reference to some of the subjects to which it has been applied. They include, for example, goods of a third person, placed in the way of trade or storage in the warehouse of one who receives goods on storage; the goods of a guest at an inn, or of a boarder in a boarding house; grain sent to a miller to be ground; a horse left at a blacksmith shop to be shod; cattle intrusted to a farmer to agist; cloth left at a tailor’s to be made into clothing. In such and like cases the nature of the business of the tenant requires that he be put in possession of the goods of his employer or customer. But it would be an unwarranted extension of the exception, and of any authoritative statement of the principle upon which it rests, to hold that, if the landlord when leasing the premises knows the business the tenant intends to carry on therein, he must be presumed to consent that whatever it is necessary for the tenant to have in the conduct of the business he may bring on the premises under a contract of hiring and hold it free from distress. For example; the business of an innkeeper cannot be carried on without furniture; nor that of a blacksmith, or of á tailor, or of a miller, or of a warehouseman, or of selling soda water, or of keeping a place for playing billiards, without buying or renting for hire many chattels. So, in the same sense, it was necessary for the tenant in the present instance, in carrying on the business of a moving-picture parlor, to have picture films and a motion generator for the purpose of showing them. The same might be said, with equal truth, of accessories for the accommodation of the patrons of the place, as, for example, chairs or benches. But it is not that sort of necessity which is contemplated in the statement of the exception above quoted. To hold that it is, would be, in effect, to abrogate the rule itself, so far, at least, as it is applicable to premises in which a business is carried on by the tenant. We think the court was right in refusing to liken the case to that of a tenant taking the goods of a customer to be stored, improved, or used for the benefit of the owner.

The judgment is affirmed.