text:
    Davis v. Southwest Pennyslvania Pipe Lines, Appellant.

      Pipe lines — Construction of lines — Trespass—Failure to condemn— Equity — Injunction—Finding of fact.

    A pipe line company which constructs pipe lines upon land without complying with the conditions precedent to the exercise of the power of eminent domain, and without the plaintiff’s consent, either express or to be implied from knowledge and failure to object, may be enjoined from operating the lines, unless within a period fixed, it proceeds to the condemnation of the land and the assessment of damages.
    In such a case a finding of fact by the court that the owner had no knowledge of the construction of the line, will not be set aside on appeal, where it appears that the finding involved a consideration of the credibility of witnesses, and there was no manifest error.
    An action of trespass against a pipe line company which has illegally,1 and without consent, laid a pipe line across the plaintiff’s land, is not res ad judicata to a subsequent bill in equity by the owner to restrain the operation of the line, where it appears that the trespass suit was brought merely to establish plaintiff’s right, and that the recovery therein was for nominal damages only.
    Argued May 10, 1907.
    Appeal, No. 183, April T., 1907, by defendant, from decree of C. P., No. 1, Allegheny Co., Sept. T., 1906, No. 599, on bill in equity in case of Henry A. Davis v. The Southwest Pennsylvania Pipe Lines.
    Before Rice, P. J., Henderson, Orlady and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Over, orphans’ court judge, specially presiding, filed the following opinion:
    The purpose of this bill is to compel the defendant to remove two pipe lines located by the defendant on his land in the 18th ward, Pittsburg.
    FINDINGS OF FACT.
    1. The defendant is a coi’poration chartered under the Act of assembly approved June 2, 1883, P. L. 61, having the right of eminent domain, and is engaged in the business of storing petroleum and transporting it from place to' place through pipes.
    2. The plaintiff is the owner of the land described in the bill.
    3. The defendant company on or before August 1, 1896, without permission of the plaintiff and without any authority of law, entered upon said piece of land and laid upon and across it, extending the entire length thereof, one pipe three and one-half inches in diameter and one four and one-half inches in diameter, for the purpose of carrying petroleum, and from that time until the present has forcibly kept and maintained said pipe lines and used the same for transporting petroleum and now so uses them, and continues to enter upon said land to maintain and keep in repair said pipe lines. One of said lines being located between high and low water mark of the Allegheny river, and the other within the right of way of the Allegheny Valley Railroad Company, over said land.
    4. The plaintiff at No. 101, December Term, 1902, of this court, brought against said defendant an action of trespass to recover damages for said trespass upon his said land by the laying and maintaining of said pipe lines thereon, and on November 17, 1905, recovered a verdict against said defendant for six and one-fourth cents damages and costs, upon which verdict on September 5, 1905, judgment was entered, and was satisfied on the same day.
    5. That since said verdict and judgment the defendant continues to maintain said pipe lines upon said premises and to transport oil through the same.
    DISCUSSION.
    It is contended by defendant’s counsel that the judgment in the action of trespass brought by the plaintiff was for all the damages sustained by him by reason of the location, construction and maintenance of and permanent occupancy of his land by the defendant’s pipe lines, and that on the payment thereof the defendant had the right to maintain the lines without any other compensation to the plaintiff, and cites: Hankey v. The Philadelphia Company, 5 Pa. Superior Ct. 148, to sustain this contention. That case was an action of trespass against the Philadelphia company, and Judge Wickham; in his opinion said: “In the summer of 1895, the defendant, a corporation entitled to exercise the right of eminent domain, laid an eight-inch gas pipe in and on a public road passing through the plaintiff’s farm, and also constructed a telephone line along the same highway. No bond was tendered the plaintiff, nor was any attempt made to agree with him as to the damages; he was fully aware of what was being done by the defendant and made no active attempt to stay the work by bill in equity or otherwise. He is, therefore, estopped from depriving the defendant of the easement it acquired; but is clearly entitled to compensation through a common-law action for all injuries he has sustained, including those resulting from the permanent occupanc)' of his land;” and it was held that the measure of damages was the difference between the market value of the land immediately before the defendant’s entry and immediately after, as affected by said entry,"acts and occupation.
    We think the case at bar is clearly distinguishable from that case. Here there is no estoppel, the lines having been laid without the consent or knowledge of plaintiff, on his land, and not on the public road, and the action of trespass was brought to recover damages for a continuing trespass, and not for the permanent occupancy of the land. No evidence was offered to prove the amount of damages for the permanent occupancy, and no allowance was made therefor in the verdict of the jury.
    CONCLUSIONS OF LAW.
    It having been established by a verdict of a jury that the defendant committed a trespass on plaintiff’s land by laying and maintaining two pipe lines for the transportation of oil thereon, and it appearing that the defendant continues to maintain them, the plaintiff is entitled to a decree for their removal; the costs to be paid by the defendant.
    The court entered the following final decree :
    And now, to wit: February 13, 1907, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows:
    That the exceptions of defendant be and are hereby dismissed, and that a writ of injunction issue under the seal of this court perpetually restraining and enjoining the defendant, its agents and servants, from trespassing upon the plaintiff’s lands, situate in the Eighteenth ward of the city of Pittsburg, and fully described in the bill of complaint, and from transporting oil through the pipe lines, or any of them, upon said lands, and that said defendant shall within sixty days from this date take up and remove from said land, all lines of pipe thereon which are owned or operated b3r defendant, with stay of execution on this decree for a period of sixty days to enable the defendant company to proceed under the statute and procure the condemnation of the land and the assessment of damages.
    October 7, 1907 :

      Hrror assigned was the decree of the court.

      W. A. Stone, of Stone £ Stone, for appellant.
    These cases turn on the authority of Hankey v. Philadelphia Company, 5 Pa. Superior Ct. 148.
    Where the landowner fails to object to the entry upon his land, he practically consents to the occupancy thereof, but he does not lose his right to compensation: Oliver v. Pittsburg, Virginia, etc., Ry. Co., 181 Pa. 408.
    Where tbe question has been determined by the court, the same questions involved therein cannot be raised in a new action, because of the rule of res adjudicata : Megahey v. Farmers’, etc., Savings Fund & Loan Assn., 215 Pa. 351.

      O. C. Diclcey, with him J. Charles DicJcen and Henry A. Davis, for appellees.
    The fact of the company having the right of eminent domain, however, does not make it any the less a trespasser if it chooses not to exercise that right and accept its consequences in the manner prescribed by law, and the property owner elects to treat it as a trespasser as soon as he knows' of the trespass rather than acquiesce in the trespass : Philadelphia, Newton & N. Y. Railroad Co. et al. v. Cooper, 105 Pa.-239.
   Opinion by

Rice, P. J.,

This controversy arose out of the location and maintenance of two pipe lines for the transportation of petroleum across the plaintiff’s land. A concise and connected statement of the facts necessary to a proper understanding of the questions involved is contained in the findings and opinion filed by the learned judge specially presiding below. The defendant takes the position, if we have not misapprehended the argument of its learned counsel, that the plaintiff is not only estopped from questioning the companj^s right to maintain the pipe lines upon his land, but is also estopped from claiming further damages beyond the nominal sum awarded in the trespass case brought in 1902. We are unable to adopt this conclusion, principally because we cannot take the same view that counsel take of the evidence relative to the question of the plaintiff’s knowledge of, and failure to object to, the concededly unauthorized construction of the pipe lines.

One of the court’s findings of fact is, that the defendant entered upon the plaintiff’s land and laid the two pipe lines in controversy “ without the permission of the plaintiff and without any authority of law.” This findingof faetwasnot excepted to ; but exception was taken to the refusal of the defendant’s fifth request for finding of fact, that the plaintiff had knowledge, through his agent and attornejq that the land was being so occupied “about the time of the location of the pipelines, or soon thereafter.” It is not perceived how a finding so indefinite as to the time of entry as that requested by the defendant could affect the question of the plaintiff’s right to treat the defendant’s entry and occupancy of his land as a trespass. And if it could not affect that question, the refusal of the request did not harm the defendant. But assuming that the point called for a finding upon the question of fact, whether the plaintiff, through his agent and attorney, had knowledge of the construction of the pipe lines upon his land in time to prevent or to protest against it, the evidence warranted the court in determining that question in the negative. The plaintiff and Mr. Diclcen, the agent or attorney referred to in the point, deny such knowledge, and the circumstances from which it is argued that they must have had knowledge are not so conclusive as to warrant an appellate court in overturning the finding of the trial court upon the question of fact. The findings of the court upon a trial under the equity rules of 1894, especially if the credibility of witnesses be involved, will not be set aside on appeal, unless there be manifest error: Commonwealth ex rel. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371; Steinmeyer v. Siebert, 190 Pa. 471; Dilworth v. Kennedy, 201 Pa. 388; Mackintyre v. Jones, 9 Pa. Superior Ct. 543, Hunter v. Bilheimer, 22 Pa. Superior Ct. 622 ; Obney v. Obney, 26 Pa. Superior Ct. 116; Wentzel’s Estate, 30 Pa. Superior Ct. 628. Adopting any statement of the rule that can be found in any of the foregoing eases, and applying it to the evidence in this case, it must be accepted as a fact, on this appeal, that the defendant constructed the pipe lines in question upon the plaintiff’s land without complying with the conditions precedent to the exercise of the power of eminent domain, and without the plaintiff's consent, either express, or to be implied from knowledge and failure to object. If, therefore, this were an action at law — and the same must be true in equity — the controlling principle that was held applicable to the facts of Hankey v. Philadelphia Company, 5 Pa. Superior Ct. 148, upon which the appellant’s counsel rely, would be inapplicable. The plaintiff in that case, as stated by Judge Wickham, “was fully aware of what was being done by the defendant and made no active attempt to stay the work by bill in equity or otherwise.” Not only so, but, according to his own admission, he actually assisted in the work. While the plaintiff’s acts were not such as to debar him of his constitutional right to compensation, it was held that they did estop him “ from depriving the defendant of the easement it acquired.” So, where an owner was “ passively derelict in knowingly permitting ” a railroad company to put its improvements on his land, it was held that it would be inequitable to allow the judgment in ejectment he obtained to work a forfeiture of those improvements ; accordingly, execution was stayed upon the judgment to enable the company to proceed under the statute and have the damages assessed: Allegheny Valley R. R. Co. v. Colwell, 2 Mona. 300. In the case cited by the appellant’s counsel — Oliver v. Pittsb., Va. & Charleston Ry. Co., 131 Pa. 408 — it is very clearly stated: that if a corporation having the power of eminent domain enters without compliance with the law, or treaty with the owner, it acquires no title, but is a trespasser and liable to action of trespass or ejectment, at the election of the owner; but if he consents to the entry by the corporation and sees the expenditure of large sums of money, while this will not debar him of the right to compensation, he ought not to be allowed to treat its entry as a trespass. In this case, there are no facts, such as express or implied consent, or “passive dereliction,” which upon equitable grounds estopped the plaintiff from treating the construction of the pipe lines as a trespass, or precluded him from suing in that form of action and recovering such damages as he had sustained up to the time of bringing suit, and then bringing successive actions until the cessation of the injurious acts, or the defendant should acquire the right to continue them by proper proceedings in the exercise of. its power of eminent domain. He was not bound to have, his damages assessed upon the same basis as if the defendant’s pipe lines had been constructed in the lawful exercise of that power.

But assuming for the purpose of this discussion that he could have elected to have the damages assessed upon that basis (as the plaintiff did in the frequently cited case of Thompson v. Citizens’ Traction Co., 181 Pa. 131), does the record of the trespass case show that he so elected ? We think it clearly shows the contrary. The gravamen of the complaint, as to damages, in that case is set forth in this clause of the statement : “ That by the construction and maintenance of said pipe lines by the defendant company in manner stated on and across plaintiff’s said premises, said plaintiff has not had the free and uninterrupted use of his said property, but lias been annoyed and put to inconvenience by defendant’s trespass and occupancy, and plaintiff has been prevented thereby from making sale of his said property, as he was desirous of doing, whereby he (plaintiff) has been specially damaged and has sustained pecuniary loss in a large sum of money.” Here was a distinct setting forth of an interference with the plaintiff’s use and enjoyment of his premises as the ground of his complaint. The evidence given on the trial, so far as any evidence was given .relating to the measure of damages, was consistent with that view of the plaintiff’s claim. Moreover, during the progress of the trial the counsel for plaintiff said : “ This action is not brought expecting to recover more than nominal damages. We wish to bring this suit to establish our right at law, and the dead line cuts very little figure.” No evidence was given on either side relative to the difference in the value of the land before and after the construction of the pipe lines, and at the conclusion of the trial the judge charged the jury that the plaintiff was entitled to recover nominal damages only. We cannot agree with the appellant’s counsel in their contention expressed in their sixth point of law that the verdict in that case must be presumed in law “ to be compensation for the injury suffered, or for the difference in the value of the land immediately before the occupancy by the defendant company and after the occupancy by the defendant company.” The verdict and judgment in that case established the plaintiff’s right and the tortiousness of the defendant’s act in constructing the pipe lines. Maintaining them on the plaintiff’s land thereafter was, under the circumstances, a trespass from day to day, for which successive actions would lie: Holmes v. Wilson, 10 Ad. & E. 503; Dill v. McCloskey, 9 Phila. 76; Pollock on Torts, 813.

The foregoing conclusions involve no hardship. to the defendant company of which it can justly complain, for, as stated by the appellee’s counsel, there is now and always has been a method whereby the right of way needed by the defendant can be acquired upon payment of proper compensation or giving security therefor as the statute prescribes.

The decree is affirmed at the costs of the appellant; the period of stay mentioned therein to be computed from the date of the decree of this court.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Dicken v. Southwest Pennsylvania Pipe Lines, Appellant.
    October 7, 1907:
    Argued May 10, 1907.
    Appeal, No. 184, April T., 1907, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 600, on bill in equity in case of J. Charles Dicken v. The Southwest Pennsylvania Pipe Lines.
    Before Rice, P. J., Henderson, O ready and Beaver, J J.
    Affirmed.
   Opinion by

Rice, P. J.,

For the reasons given in case of Henry A. Davis against this defendant the decree is affirmed at the costs of the appellant; the period of stay therein mentioned to be computed from the date of the decree of this court,


text:
    Sawyer v. Southwest Pennsylvania Pipe Lines, Appellant.
    October 7, 1907 :
    Argued May 10, 1907.
    Appeal, No. 185, April T., 1907, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 750, oh bill in equity in case of John H. Sawyer v. The Southwest Pennsylvania Pipe-Lines.
    Before Rice, P. J., Henderson, Orlady and Beaver, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

For the reasons given in case of Henry A. Davis against this defendant, ante, p. 438, the decree is affirmed at the costs of the appellant; the period of stay therein mentioned to be computed from the date of the decree of this court.


author: Head, J.,

text:
    El Dorado Jewelry Company, Appellant, v. Hopkins.

      Contract — Evidence—Parol contract — Inducement—Fraud—Written instrument.

    When a party is inveigled into signing a -written contract upon the faith of a contemporaneous agreement which is violated as soon as it has accomplished its purpose in securing the execution of the paper, such oral agreement may always be shown when the enforcement of the paper is attempted.
    In an action for goods sold and delivered under an alleged written contract, an affidavit of defense is sufficient which avers that at the time the writing was signed defendant refused to buy the goods, that plaintiff’s agent thereupon falsely and fraudulently represented to defendant that the writing would be held merely as a memorandum of goods to be placed on sale in defendant’s store to be sold by him as an agent, and that it would not be enforced according to its terms, and which further avers that defendant would not have signed the paper except upon the inducement of the parol agreement.
    Argued May 7, 1907.
    Appeal, No. 88, April T., 1907, by defendants, from order of C. P. Jefferson Co., Aug. T., 1905, No. 313, discharging rule for judgment for want of a sufficient affidavit of defense in case of El Dorado Jewelry Co. v. Jacoby Hopkins.
    Before Rice, P. J., Porter, Henderson, Morrison, Oriady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    The affidavit of defense was as follows :
    1. On August 13, 1904, the plaintiff company by its agent, F. J. Bunnell, called upon deponent at his place of business at Knoxdale, Jefferson county, Pa., and then and there endeavored to persuade deponent to purchase and order from plaintiff the jewelry mentioned in the “ two hundred dollar order,” a copy of which plaintiff has filed in this case, upon the terms and conditions printed in said order ; the deponent informed the plaintiff’s agent, then and there, that he would not purchase said jewelry upon the terms and conditions set forth in the said “ order; ” that he (deponent) could not sell such jewelry in that community, and that he did not desire to purchase what he could not sell. The plaintiff, by and through its agent, in order to induce deponent to sign said order, made the following proposition, viz.: That the plaintiff company should forward to deponent the jewelry mentioned in the printed order; that deponent should sell such of it as he could; that plaintiff’s agent should call upon deponent at his place of business, three or four times a year, collect the amount of sales, less 33 j- per cent commission, exchange such goods as did not prove salable, and at the end of the year take away all jewelry then remaining on hand and unsold, or, at deponent’s option, sell him such goods as might remain at a discount of 33J- per cent off the list price.
    Even then the deponent objected to signing the order mentioned, but the plaintiff, by its agent, assured him that the signing of the order was merely a formality, and that the contract would be carried out by plaintiff in accordance with the parol agreement above mentioned, whereupon deponent, being induced thereto by the parol promises, undertakings and agreements above set forth, signed said order.
    Deponent further declares that he would not, under any circumstances, have signed said order or purchased or received said jewelry, save and except upon the conditions mentioned in the parol undertakings and agreements made % plaintiff company at the time of the signing said order.
    The deponent further says that he received the jewelry mentioned, made sales of a part thereof, and was, and is, ready and willing to account for the proceeds of said sales, less 331- per cent, whenever the plaintiff company will call upon him at his place of business, at Knoxdale, Pa., and is ready and willing, and was ready and willing at the expiration of the year mentioned in said parol agreement, to turn over to the plaintiff all jewelry remaining unsold; the deponent further declares that he has, in all respects, performed his part of the said agreement, but declares that the plaintiff has failed, neglected and refused to perform and keep its part thereof, in that it did not call upon deponent at the times mentioned for payment; that it did not take away unsalable jewelry and replace the same with articles readily salable; that it did not take away the jewelry remaining unsold at the end of the year, but on the contrary has violated its part of said contract in the particulars above mentioned.
    Wherefore 'deponent says that he owes plaintiff nothing, save as set forth above, and that plaintiff is not entitled to recover its said claim, or any part thereof, 'in this action.

      Error assigned was the order of the court.
    IF. W Conrad, for appellant.
    The affidavit was insufficient: Blue Label Safety Squib Co. v. Marsh, 15 Pa. Dist. Rep. 95; Thomas v. Loose, 114 Pa. 35 ; Appleby v. Barrett, 28 Pa. Superior Ct. 349; Clarke v. Allen, 132 Pa. 40 ; Krueger v. Nicola, 205 Pa. 38 ; Wodock v. Robinson, 148 Pa. 503 ; Cullmans v. Lindsay, 114 Pa. 166 ; Juniata Bldg. & Loan Assn. v. Hetzel, 103 Pa. 507; Fidelity & Casualty Co. v. Harder, 212 Pa. 96.

      C. Z. Gordon, for appellee.
    Parol evidence is admissible to show a verbal contemporaneous agreement, which induced the execution of the written agreement, though it may have the effect of varying or changing the terms of the written contract : Bown v. Morange, 108 Pa. 69 ; Miller v. Henderson, 10 S. & R. 290 5 Greenawalt v. Kohne, 85 Pa. 369; Barclay v. Wainwright, 86 Pa. 191; Whitney v. Shippen, 89 Pa. 22; Hoopes v. Beale, 90 Pa. 82; Keough v. Leslie, 92 Pa. 424; Hartley’s Appeal, 103 Pa. 23 ; Juniata Bldg. & Loan Assn. v. Hetzel, 103 Pa. 507.
    October 7, 1907:
   Opinion by

Head, J.,

As our courts have, from the earliest days, administered relief, equitable in character, in our common-law forms of action, it is not surprising that we have long lines of decisions defining the conditions under which parol evidence may be offered, to attack a written instrument and the standards, as to quantity and quality, to which that evidence must measure up if the attack is to be successful. Nor is it strange that, in a commercial age, when the number of our business transactions is equalled only by their variety, complexity and magnitude, fraud and covin, the parasites peculiar to such conditions, should assume forms as varying as the affairs out of which they develop. Hence we may agree with the learned court below, that it is sometimes difficult to so interpret the many precedents and apply them to the facts of each new case as it arises, as to preserve that harmony which contributes so greatly to precision and accuracy of judgment.

But the correct solution of the narrow question now before us does not, in our opinion, demand any extensive review of the cases or discussion of troublesome problems because it can be reached by the application of a few principles, the controlling force of which can hardly be gainsaid.

This appeal comes from the order of the court below discharging a rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit for the price of goods alleged to have been sold and delivered by the plaintiff to the defendant. The action is founded on a written or printed order signed by the defendant and accepted by the plaintiff, according to the terms of which the price therein named had become due and payable before the suit was brought. The defendant, not denying that he signed'the paper, avers that he never entered or intended to.enter into the contract therein shown. That he positively refused to buy the plaintiff’s goods, but did agree to accept an agency for their sale on the terms and conditions he sets up. That the plaintiff’s agent secured his signature to the order by falsely and fraudulently representing that it would be received and held merely as a memorandum of goods to be placed on sale in his store and that no attempt would be made to use it to enforce payment in accordance with its terms. In other words, the affidavit sets up that the execution of the alleged written contract was procured by a fraud and that the use now sought to be made of it is in flat violation of the plaintiff’s promise to the contrary upon the faith of which the defendant attached his signature to the paper.

At this stage of the case all of these averments of fact must be regarded as having been conclusively established by abundant and satisfactory testimony. We are thus relieved of any consideration of the many cases cited in appellant’s brief which deal with the nature and extent of the evidence that must be produced in order to affect or modify a written contract by a contemporaneous one in parol. Can there be any doubt then that a party should be heard in defending against the enforcement of a written contract when it is established that its execution was procured by false representations and that such use of it was in violation of a promise to the contrary on the faith of which it was signed ? The answer to this question is clearly stated by Porter, J., in American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451, in this language: “ When a party is thus inveigled into signing a written contract upon the faith of a contemporaneous agreement, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, that oral agreement may always be shown when the enforcement of the paper is attempted.”

As the authorities supporting the principle thus stated are collated and cited in that case, and as it is practically “ on all fours ” with the present one, further comment here would be useless.

Appeal dismissed at the costs of the plaintiff, but without prejudice, etc.


author: Henderson, J.,

text:
    Commonwealth v. Martin, Appellant.

      Criminal law — Charge of court — Contradiction of testimony — Effect of plea of “not guilty” — Act of May 23,1887, P. L. 158, sec. 10.
    On the trial of a criminal case, where the defendant offered no evidence, except as to good character, the court cannot be charged with error in commenting upon the testimony of one of the commonwealth’s witnesses as to facts, as being uncontradicted, unchallenged, and undisputed. In such a case the plea of “not guilty” is not testimony in the case, nor is the evidence of good character contradictory of the testimony of the witness as to facts; nor can it be successfully claimed that the court in making such comment violated the Act of May 23, 1887, P. L. 158, sec. 10, forbidding an adverse reference to the failure of the defendant to testify in his own behalf.

      Criminal law — Inquiry of juror as to penalty — Charge of court.

    In a criminal case the trial judge cannot be charged with error, where in answer to a question by a juryman as to the penalty, he promptly tells the jury that they have nothing to do with the penalty, that that is a matter for the court exclusively, and that they should not consider it, or enter into any discussion about it, but that any recommendation of mercy or severity would be considered.
    The court may in a criminal case express its opinion respecting the evidence, where this is done without misleading or controlling the jury in the disposition of the case.

      Criminal law — Charge of court — Failure to agree.

    The time when the court will discharge the jury for failure to agree is ordinarily a matter of discretion with the trial judge. He may not impose penalties, nor should he subject to undue physical discomfort, but a failure to discharge the jury on request does not amount to coercion.
    Where in a criminal case the evidence against the defendant is positive, clear and not contradicted, the court commits no impropriety in impressing upon the minds of the jury the importance of arriving at a verdict.

      Criminal law — Charge of court — Review of the evidence.

    On the trial of a criminal case where all the evidence of facts is developed in the testimony offered by the commonwealth, the court cannot be charged with error and unfairness, because much of the charge is devoted to the commonwealth’s side.
    Argued May 9, 1907.
    Appeal, No. 195, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 586, on verdict of guilty in case of Commonwealth v. W. A. Martin.
    Before Rice, P. J., Henderson, Oelady, Head and Beavee, JJ.
    Affirmed.
    Indictment for bribery.
    Evans, J., charged as follows :
    The defendant is indicted under the Act of assembly of May 23, 1874, P. L. 230, which provides that certain acts therein described, by certain persons mentioned, shall be indictable. The section of this act applying to this case has been read by counsel, but in order that it may be impressed more fully upon your minds, I will read it again.
    Section 8. “ A member of Council who shall solicit, demand or receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward, thing of value or enjoyment, or of personal advantage, or promise thereof, for his vote or official influence, or for withholding the same, or with the understanding, expressed or implied, that his vote or official action shall be in any way influenced thereby, or who shall solicit or demand any such money or other advantage, matter or thing aforesaid, for another, as the consideration of his vote or official influence, or for withholding the same, or shall give or withhold his vote or influence in consideration of the payment or promise of such money, advantage, matter or thing to another, shall be guilty of bribery.”
    In the first clause I ask your special attention to the terms used so far as they affect the action of the member of council “who shall solicit, demand, receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward or promise thereof” to influence his public act. The defendant has been since the first Monday of April a member of the common council of this city, and the act of assembly under which this defendant is indicted, applies to the common councilmen of this city. Therefore, you start with a proposition that this defendant is subject to the provisions of this act. There was before the councils of this city, as shown by the records thereof offered by the commonwealth, in this case, an ordinance granting certain rights and franchises to the Pittsburg and Tube City Railroad, and the evidence on the part of the commonwealth is that the president of the railroad, and the person who actively represented it in negotiating for the passage of that ordinance through councils, was one C. S. Cameron; that the engineer of that railroad, who had prepared its plans and made its surveys, was Milholland; that Cameron had an office in the Arrott building in this city, at the corner of Wood street and Fourth avenue, and that Milholland had an office in the Victory building, on Fourth avenue, above Smithfield street. There is not, so far as I have heard from the evidence or from the remarks of counsel, any contention that these facts as I have related to you are not true. This ordinance had passed select council and had been sent through in the regular course of eouncilmanic business, to common council, and on motion of this defendant, Martin, the rules were suspended, and the ordinance was passed second reading. Millholland, the engineer of the Pittsburg and Tube City Railroad, was called upon the stand to testify to certain transactions, and did testify to certain transactions between himself, C. S. Cameron and the defendant. I do not propose going over in detail all the testimony, but you will remember that he testified to first receiving a check, which he saw lying on the table in the presence of Cameron and Martin, with instructions for him to take it and put it in a safe deposit vault, which he had already rented at the suggestion of Cameron, and to hold the check subject to the order of Martin and Cameron ; that he subsequently returned that to Cameron on the order of Martin; that at different times he received packages purporting to contain $60,000 and $70,000, which he would receive in the presence of Cameron and Martin, with instructions to put them in his safe deposit vault, and keep them safe and hold them subject to the order of Cameron and Martin, as he put it; that he returned them when ordered to Cameron and Martin, each of which packages he subsequently returned to Cameron on the order of Martin, and on one or two occasions Martin stating that “ It’s all off.” That he received the keys under similar circumstances, to be put in safe deposit vaults, which he was to hold subject to the order of Cameron and Martin.

      The csommonwealth has produced upon the witness stand a trian by the name of Richardson, who testified as to his providing the $60,000, and on two or three occasions, I have forgotten Which, $70,000, at the request of Cameron, and of delivering it to Cameton in the presence of Martin, and of his getting it back again under an arrangement with Cameron. Milholland testified that his understanding of this transaction, so far as the handling of this money was concerned, was that the $60,000, 'that the $70,000 was used, or to be used, for the furtherance of the Tube city ordinance through councils and over the mayor’s veto. He testified that he got his information from Martin and from Cameron both. Now, there has been considerable said upon the subject of Milholland’s character and acts in this connection. It has been stated that Milholland is in the employ of some persons interested in the defeat of the Tube city ordinance, and that his testimony here on the witness stand was in furtherance of that conspiracy. I have said to you, gentlemen, several times during this case, cautioned you that you should try this case in accordance with the evidence as it comes from the witnesses. There is no evidence here that Milholland is in the employ of or the employment of anybody except the Tube city railroad. There is no evidence here that anybody was interested in the defeat of the Tube city ordinance. The evidence as it appears here is the testimony upon which you will try this case, and not remarks upon the part of counsel, or what may possibly be the case where there is no evidence to justify. [Milholland is not on trial here except so far as his credibility is on trial as to the weight which you will give the testimony that he presents to you on the witness stand, and in passing upon his credibility you will consider the fact that he was engaged in the same business, which his testimony will tend to show. In other words, to a certain extent at least, if Martin is guilty, he was an accomplice. But on the other hand, in passing upon his credibility you must consider the fact that every statement he gave upon the witness stand goes unchallenged; he is not contradicted by any testimony offered upon the witness stand. His various statements as to what was done with the keys, money and checks are uncontradicted. His statement that this money was to be used for the passage of the Tube city ordinance is uucontradicted. His statement that he got that information from Cameron and Martin is uncontradicted, and in passing upon his credibility it is important for you to consider that. The evidence as shown, as I have stated, on the part of the commonwealth, that evidence was uncontradicted that there was some dealing between this defendant and Cameron, wherein $60,000 figured, and then $70,000, or what ivas supposed to be $70,000 and $60,000. [And if you find from the evidence that that course of dealings did take place as related here by Milholland, Flaherty and by Richardson, as to whether that was an honest transaction, or whether it was a.dishonest transaction, such as the charge as made against the defendant here, in'addition to the undisputed testimony of the witness that it was understood and stated by the two other parties in the case that it was to be used for the passage of the ordinance through councils; in addition to that you take into consideration the acts of the parties as to whether it was an honest above-hoard transaction, or whether it was a dishonest transaction, one necessaiy to do in secret, one that the public should not be informed of.] [1-3] And in passing upon that question you must line it up with the ordinary conduct of individuals; whether $70,000 is ordinarily paid in cash; whether it is placed in safe deposit vaults subject to the order of the two persons who are dealing; whether this defendant, in the two times which his name appears in connection with the transaction, when he gives the name of the person renting the box, did not give his own, and in one case not his own address, but in one case gave William Martin instead of William A. Martin, and in the other W. J. Martin, all these things you must consider. In pointing them out to you I am not stating to you what value you ought to give them, but I say they are evidence in this case for your consideration in passing upon the question, which is the question in this case, was this an honest transaction? Was it a transaction that could be enforced in the court if either side broke his agreement, or was it a transaction that the law did not countenance, which the parties knew they had to enforce themselves, and that neither could enforce in court? That is an important fact in this case. In this case if you find from the evidence that the defendant did solicit money or other valuable things, for his vote or influence in the councils of this city, or if you find that he did not solicit, but agreed to accept it, then it does not make any difference if by a sleight-of-hand performance he was deprived of the possession of this money. If he was promised, and agreed to act upon that promise, and they had arranged that he would not get the money, that would not affect his guilt or innocence in this case. The facts in this case are for your determination. I have instructed you as to what may constitute in law the offense of which this defendant is charged. Whether or not the evidence produced here justifies his conviction is for you determine. I have gone over the facts in the case, and pointed out to you the evidence produced on the question of the guilt or innocence of the defendant. It is for you to apply them. The burden is on the commonwealth to satisfy you beyond a reasonable doubt of the guilt of the defendant. A reasonable doubt is a doubt which arises out of the evidence, which arises in your mind out of the evidence produced in this case. If that evidence raises a doubt of the guilt of this defendant, then it is your duty to acquit him, but that doubt must be a reasonable one, not the mere fancied possible one. The defendant has offered you evidence of good reputation. The law has said that evidence of reputation is evidence substantive of his character; that it is not mere makeweight, but evidence for your consideration in passing upon the guilt or innocence of the defendant. It is evidence which may raise that reasonable doubt. That court says the evidence may raise that doubt if the evidence of good reputation is proven, and if you, in consideration of all the evidence in this case, the evidence of good reputation included, have a reasonable doubt, then it is your duty to acquit the defendant; but if in the consideration of evidence of good reputation with the evidence of guilt, if in the consideration of it altogether you fail to find a reasonable doubt, then it is just as much your duty to convict. I am instructed by the counsel for the commonwealth, and I say to you I have not examined it, and am not in a position to say, that this a misdemeanor*. Being that, in case you acquit, you must dispose of the costs, but if you convict, you have nothing to do with the costs.
    Counsel for defendant asks for a general exception to the charge, and a special exception to that part of the charge relating to the undisputed testimony of the witness Milholland.

      Exceptions allowed.
    Additional instructions given to the jury on Wednesday, January 9, 1907, at 3: 45 P. M.
    PRESENT:
    For the commonwealth: H. L. Goehring, Esq., district attorney.
    For the defendant: Rody P. Marshall, Esq.
    The Court: Gentlemen, I have a communication from your foreman stating that you desire additional instructions. Is that correct?
    Mr. Ayres, a juror: Your honor, there are those of the jury—
    The Court: Just before you make any remark let me state that I do not want to know, nor want you to state, what the result so far has been. I don’t want to know what the result of your ballots has been, or anything of that kind.
    Mr. Ayres: Your honor, there are those of the jury that would like to have the point defined with reference to the gravity of the charge in the indictment, it being a misdemeanor, and it having been referred to as bribery. We would like to have the difference defined between the charge of bribery and what is meant to convey in the indictment and a misdemeanor.
    The Court: The offense charged, gentlemen, is bribery. Bribery is a misdemeanor. The indictment may state on its back, “ Misdemeanor; ” the offense charged is bribery. Misdemeanor is the name of a class of offenses. It is not the name of any particular offense. Offenses are divided in this state into felonies and misdemeanors. The offense charged here is bribery and I defined to you what bribery is, and I suppose you understand it from that definition or'the act of assembly which I read in your presence. The word misdemeanor has no special significance with regard to the nature or character of this crime except that it is one of two classes of crimes, namely, felony and misdemeanor; and this is a misdemeanor. Is that satisfactory to all of you ? Is that what you mean by the question ?■
    Mr. Ayres: It was also suggested that some of them would like to know regarding the penalty.
    [The Court: The penalty you have nothing to do with.. That is for the court entirely. The court has absolute control over that. Any recommendation which you may make we will consider. Nothing outside of that has this jury anything to do with, and they should not consider it, and it should not enter into your discussion any further than a recommendation of mercy or severity, as you may see fit.] [4]
    To which additional instructions counsel for defendant requested an exception. Exception allowed and bill sealed.
    Supplemental instructions to the jury in the above-entitled case, Thursday, January 10, 1907, at 3 :30 P. M.
    Gentlemen of the jury : I have a communication from your foreman that you have not been as yet able to agree. Is there any further ins [ruction that I can give you that would aid you in coming to a verdict ?
    The foreman: I don’t believe there is ; you might send us back again.
    The Court: This is a case of considerable importance, gentlemen. [The evidence, in my judgment, is not complicated. I do not want to force any man’s judgment or conscience in the matter, but it does seem to me that in this case this jury ought to have been able to arrive at a verdict.] [5] Unless somebody here is suffering from the confinement, I do not feel inclined to discharge you yet..
    The foreman: I ask to be sent back to the room.
    The Court: I would suggest you return and make further effort to agree in this case.
    On Friday, January 11, 1907, at 3:40 p. m:., the jury again returned to the court room and the following colloquy took place :
    The Court: Well, gentlemen, you do not appear to be very much the worse for having stayed out so long. I will ask'you again if anybody is suffering seriously from this confinement?
    The foreman: No, we are not.
    [The Court: I have received your communication again today asking that you be discharged. I have given this question considerable consideration and I do not.think this is a case where there ought to be a disagreement. In a case where the testimony was as clear as it was in this case, I do not think it would be my duty to discharge you now. I ask you to return to your jury room and make an effort to agree upon a verdict in tins ease.] [6]
    Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      Rody P. Marshall, for appellant.
    Where the most essential facts of the commonwealth’s case consist of the testimony of a discredited witness, which it does not appear to be in the power of the defendant to oppose by direct testimony without talcing the stand himself, and the defendant by counsel strenuously contests the case against him, producing in his own behalf evidence, though only of good character, it is error for the court in charging the jury to comment upon the statements of such witness as “ unchallenged,” “ uncontradicted,” “ undisputed : ” Schultz v. Schultz, 118 Mich. 502 (71 N. W. Repr. 854) ; Com. v. Pipes, 158 Pa. 25.
    It is error for the court in its charge to discuss before the jury the probable consequences of a conviction: Com. v. Switzer, 134 Pa. 383.
    In additional instructions, after a jury has deliberated for a long time (in this case for two and three days), with a view to reaching a verdict, it is exerting an improper influence amounting to coercion to tell them that they ought already to have reached a verdict, because the evidence is not complicated, and that because the evidence is plain, their request to be discharged is refused: Frandsen v. Chicago, etc., R. R. Co., 36 Iowa, 372; Jackson v. State, 91 Wis. 253 (64 N. W. Repr. 838) ; Odette v. State, 90 Wis. 258 (62 N. W. Repr. 1054).
    The court’s charge as a whole was biased and unfair to the defendant.

      John Marrón, with him H. L. G-oehring, district attorney, for appellee.
    The instruction as to the commonwealth’s testimony being uncontradicted was proper: Johnston v. Com., 85 Pa. 54; Com. v. Furman, 22 Lanc. L. Rev. 225 ; Frazier v. State, 135 Ind. 38 (34 N. E. Repr. 817) ; State v. Seely, 92 Iowa, 488 (61 N. W. Repr. 184); State v. Ward, 17 Atl. Repr. 483; People v. McGrath, 5 Utah, 525 (17 Pac. Repr. 116).
    • The comment of the court on the subject of punishment was made-in answer to the question of the jury, and instead of 'offending against the principle of Commonwealth v. Switzer, 134 Pa. 383, made it certain to the jury that the question'of punishment was not “a subject for their consideration,” and guarded the jury against the error committed by the court in Commonwealth v. Switzer.
    October 7, 1907 :
    The court may advise the jury of the necessity of finding a verdict: Aharn v. Mann, 60 N. H. 472; Johnson v. State, 60 Ark. 45 (28 S. W. Repr. 792) ; White v. Calder, 35 N. Y. 183; Miller v. Miller, 187 Pa. 572; Johnston v. Com., 85 Pa. 54; Kilpatrick v. Com., 31 Pa. 198; Fredericks v. Northern Central R. R. Co., 157 Pa. 103.
   Opinion by

Henderson, J.,

All of the assignments of error relate to the charge of the court the objections to which may be briefly stated as follows: (1) The trial judge commented upon the testimony of one of the witnesses for the commonwealth as being “ unchallenged,” “ uncontradicted,” “ undisputed ; ” (2) ' the probable consequences of a conviction were discussed; (3) the supplementary instructions to the jury amounted to coercion; (4) the charge as a whole was biased and unfair to the defendant. One of the principal witnesses for the commonwealth was Milholland. It would appear from the charge of the court that an attempt had been made to show, by argument of counsel or by suggestion in the course of the trial, that this witness represented interests antagonistic to the railroad company which ivas seeking a franchise from the city councils and with reference to this subject the court instructed the jury that Milholland was not on trial except so far as his credibility was involved; that in determining the weight to be given to his evidence they should consider the fact that he was engaged in the same business of which the defendant was accused — in other words, that to a certain extent he was an accomplice. In that connection the court said that in passing on his credibility they should consider the fact that every statement he gave as a witness was unchallenged; that he was not contradicted by any testimony offered upon the witness stand. The words, “unchallenged,” “ uncontradicted ” and “ undisputed ” were used in the same sense and indicated that no one had been called who contradicted the testimony of the witness. His evidence was strongly corroborated in its material parts and the commomwealth’s case did not wholly depend upon his testimony. After directing the attention of the jury to the allegations of the witnesses in support of the commonwealth’s case the judge said: “ I am not stating to you what value you ought to give them” (the statements of the witnesses), “but I say that they are evidence in this case for your consideration in passing upon the question, which is the question in this case, was this an honest transaction?” The court further said: “The facts in this case are for your determination. I have instructed you as to what may constitute in law the offense of which this defendant is charged. Whether or not the evidence produced here justifies his conviction is for you to determine.” As there were no witnesses called for the defendant to testify in regard to the acts of the defendant out of which the accusation grew the learned trial judge did not exceed his duty in the language of the charge complained of. The evidence of the commonwealth’s witnesses was uncontradicted, unchallenged and undisputed by any witness called for the defendant and an examination of the charge will show that that is what the court said. The plea of “ not guilty ” was not testimony in the case, nor was the evidence of good character contradictory of the testimony of the witnesses who narrated the various transactions proved by the commonwealth in support of the indictment. All of the evidence in the case bearing upon the guilt or innocence of the defendant, except that presented' in support of his good character, was offered by the commonwealth. The trial judge was within the limits of propriety, therefore, when he used the language attributed to him and the jury could not have had any other understanding of this part of the charge than that no witnesses had been called by the defendant to controvert what the commonwealth’s witnesses had said on the stand. Similar language was used in Johnston v. Com., 85 Pa. 54. It is claimed that the court violated sec.10 of the Act of May 23, 1887, P. L. 158, in referring to the evidence as uncontradicted. We are unable to find in theicharge any language equivalent to an “adverse reference ” $0 the failure of the defendant to testify in his own behalf. Several persons participated in the acts which it was claimed by the commonwealth amounted to a conspiracy to bribe and any of these might have been called by the defendant if he had desired so to do. The fact that they were called by the commonwealth did not preclude the defendant from using the same witnesses. His relation to the transaction apparently made it inexpedient for him to call as witnesses the persons with whom he had been acting, and it was the privilege of the court to call the attention of the jury to the fact that the commonwealth’s witness had not been opposed by the testimony of any witnesses called for the defense. No reference was made to the failure of the defendant to testify and it was certainly not the purpose of the statute to restrict discussion in the trial of a case beyond the manifest purpose indicated by its language.

We do not find anything in the charge to justify the criticism that it discussed the probable consequences of a conviction. The remarks of the court were in response to a suggestion of one of the members of the jury that some of them would like to know regarding the penalty.” The jurors were promptly informed that they had nothing to do with the penalty; that that was a matter for the court exclusively; that they should not consider it or enter into a discussion on that subject, but that any recommendation of mercy or severity would be considered. Com. v. Switzer, 134 Pa. 383, cited by the appellant, is very different in its facts from the case under consideration. The court there informed the jury what the sentence would probably be in case of a conviction and it was this putting before the jury of the probable action of the court which was said by the Supreme Court to be unfortunate.

The light of the court to express its opinion respecting the evidence where this is done without misleading or controlling the jury in the disposition of the ease is shown by many cases. In Johnston v. Com., 85 Pa. 54, there was a strong expression of opinion of the guilt of the defendant. In Kilpatrick v. Com., 31 Pa. 198, it was said: “ A judge may rightfully express his opinion respecting the evidence and it may sometimes be his duty to do so, yet not so as to withdraw it from the consideration and decision of the jury.” To the same effect are : Leibig v. Steiner, 94 Pa. 466; Spear v. R. R. Co., 119 Pa. 61; Baltimore & Potomac R. R. v. Fifth Baptist Church, 137 U. S. 568 ; Simmons v. U. S., 142 U. S. 148; Doyle v. Ry. Co., 147 U. S. 413. There was here, however, no expression of opinion as to the guilt or innocence of the defendant. That question was wholly committed to the jury. The authority of a judge to adopt reasonable methods to bring about a verdict cannot be doubted if the verdict be based upon conscientious convictions and to that end a judge may impress upon the jury the importance of reaching such a verdict: Miller v. Miller, 187 Pa. 572. Nothing more than that was done in this.case. The time when the court will discharge a jury for failure to agree is ordinarily a matter of discretion with the trial judge. He may not impose penalties, nor should he subject to undue physical discomfort, but a failure to discharge the jury on request does not amount to coercion. There was no request to be discharged by this jury until they came in the third time and then in reply to an inquiry whether they were suffering seriously from their confinement the foreman replied that they were not. They were asked to return to the jury room and make an effort to agree on a verdict in the case. Ahearn v. Mann, 60 N. H. 472; Erwin v. Hamilton, 50 Howard’s Prac. Rep. 32, and White v. Calder, 35 N. Y. 183, are cases in which the court urged upon the jury the importance of arriving at a verdict in terms as strong or stronger than are complained of here and these cases are cited with approval in Miller v. Miller, 187 Pa. 572. When we consider that the evidence was positive, clear and not contradicted, the propriety of the action of the court in impressing upon the minds of the jury the importance of arriving at a verdict cannot be questioned.

The charge does not appear to us to be obnoxious to the criticism of unfairness. That it dealt largely with the evidence for the commonwealth was a result of the fact that all of the evidence of facts bearing on the charge against the defendant was offered by the commonwealth. If the trial judge reviewed the evidence at all he necessarily devoted his attention principally to the commonwealth’s side. The attention of the jury was called, however, to the evidence offered for the defense and its relevancy and importance was clearly stated. Taking the whole evidence into consideration the defendant has no just cause to allege that the case was not fairly presented to the jury.

The assignments of error are overruled, the judgment is affirmed and the record remitted to tlie court below to the end that the sentence may be carried into execution.


text:
    Warmcastle, Appellant, v. Castner.

      Promissory notes — Consideration—Decedents’ estates — Evidence.
    In an action against a decedent’s estate, the defendant offered as a set-off a promissory note executed by the plaintiff which had been in possession of the decedent for four years before he died. The plaintiff admitted the execution of the note, but averred a want of consideration, alleging that it had been given by him to the decedent in order to be delivered by the latter to another person in renewal of a note held by such person against the plaintiff. There was no direct evidence to support the plaintiff’s claim, but it was shown that on the day on which the note offered as a set-off was given, the person holding plaintiff’s old note had indorsed thereon a money payment which was the difference between the old note and the note which the plaintiff claimed was to be a renewal note. It appeared that -the old note remained in the hands of its holder, and that plaintiff made no effort to have the renewal note- substituted in its place. Held,, that as there was no sufficient evidence to submit to the jury on the question of lack- of consideration, it was not error for the court to give binding instructions for defendant.
    Argued May 10, 1907.
    Appeal, No. 89, April T., 1907, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. Term, 1904, No. 388, on certificate for defendant in case of C. A. Warmcastle v. Elizabeth H. Castner, Executrix of L. C. Castner, deceased.
    Before Rice, P. J., Henderson, Ordadv and Beaver, JJ.
    Affirmed.
    Assumpsit on-a promissory note. Before McClung, J.
    The facts appear by the opinion of the Superior Court.
    Certificate for defendant for $500. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      J. E, Sterrett, of Patterson, Sterret Aeheson, for appellant.
    That where there is any evidence from which an inference of the fact in controversy may be drawn it must be submitted to the jury: Howard Express Co. v. Wile, 64 Pa. 201.
    Where testimony, though uncontradicted, is not admitted by the opposite party, the credibility of the witness is for the jury: Madara v. Eversole, 62 Pa. 160; Lautner v. Kami, 184 Pa. 334 ; Harlow v. Homestead Borough, 194 Pa. 57.
    October 7, 1907:

      0. 0. Dickey, of Shiras Dickey, for appellee,
    cited: Battles & Webster v. Laudenslager, 84 Pa. 446.
   Opinion by

Henderson, J.,

The appellant complains that the court gave binding instructions for the defendant and the question which we are to consider is whether there is any evidence of a disputed fact which should have been submitted to the jury. On October 25, 1897, the plaintiff gave his promissory note to Kate Castner for the sum of $3,000 payable sixty days after date, and the same day L. C. Castner, the decedent, gave his promissory note to the plaintiff for $1,500 payable sixty days after date. On January 24, 1898, a credit of $1,000 was indorsed by Kate Castner on the $3,000 note. Among the assets of the decedent's estate was a promissory note for $2,000 dated January 24,1898, drawn by the plaintiff in favor of L. C. Castner payable three months after date. To the action brought by the plaintiff to recover the amount of his note for $1,500 dated October 25, 1897, the defendant pleaded a set-off alleging an indebtedness by the plaintiff to the defendant on account of the $2,000 note referred to. A replication to the plea admitted the execution of this note but averred a want of consideration, the plaintiff alleging that it was given by him to L. C. Castner to be delivered to Kate Castner in renewal' of the $3,000 note above recited when the payment of $1,000 was made on that note, and this $2,000 note, as stated in the replication, was refused by Kate Castner and remained in the possession of L. C. Castner. The execution of the note was admitted by the plaintiff and the issue imposed upon him the burden of proving the averments of the replication. The plaintiff’s evidence tended to show that the note for $3,000 was given by the plaintiff to Miss Cast* •ner for $3,000 to be used by him and L. C. Castner in a mining, venture and that L. C. Castner gave the $1,500 note to secure the plaintiff for the former’s share of the1 indebtedness. No witness was called who was present when the arrangement between the plaintiff and L. C. Castner was carried out, but W. A. Desborough whose deposition was offered in evidence testified that the arrangement was that the plaintiff should borrow $3,000 and that L. C. Castner should give to the plaintiff his note for one-half of that amount. The witness further testified that Castner told him that everything had been arranged to make the investment. No evidence was offered, however, that accounted for the $2,000 note, nor to show that it had any connection with the mining enterprise in which the parties engaged in October of the preceding year. The plaintiff’s obligation for $3,000 was given directly to Kate Castner and he, of course, understood that his indebtedness was to her. The $2,000 note was given to L. C. Castner. It was dated, it is true, on the same day on which a credit of $1,000 was indorsed by Kate Castner on her note, but this coincidence is not a fact showing or tending to show that the $2,000 note was to be indorsed by L. C. Castner and by him delivered to Kate Castner to secure the balance due on the $3,000 note. This circumstance affords a basis for conjecture, but cannot be regarded as evidence of the fact sought to be established. The inference is so purely speculative and vague as to have no tendency to sustain the plaintiff’s allegation. A large latitude is allowable in the introduction of circumstantial evidence, but only where it has a reasonable and logical tendency to prove that which it is offered to establish. The note was in L. C. Castner’s possession more than four years before he died and the $3,000 note remained in Kate Castner’s possession. If the $2,000 note were given to renew the balance of the $3,000 note the plaintiff had ample time to have learned that such renewal had not taken place and to recall the note or secure its acceptance by Kate Castner. This was not done, nor does it appear -that any effort in that direction was made by the plaintiff nor is any explanation given of his omission so to do. We think the learned trial judge was clearly right in holding that the plaintiff had failed to show that the note was given without consideration. It is contended that the case should have been submitted to the jury, however, on the credibility of the defendant, Mrs. Elizabeth Castner, who was called by the -plaintiff as for cross-examination. The answer to this is that Mrs. Castner did not -testify to anything which affected the merits of the case. -She 'knew nothing abqut the-histpry -of -.the note nor had she had .anymon,versation with her husband with reference thereto. He left no memorandum of his assets, nor was there anything found among his papers throwing light on the subject. The plaintiff’s case would not have been helped, therefore, if the jury-had discredited the defendant, for her testimony did not aid her case and there was no other evidence supporting his claim. The instruction to the jury was, therefore,, supported by the record.

The judgment'is affirmed.


author: Beaver, J.,

text:
    Beaver Borough, Appellant.
    October 7, 1907:

      Boroughs — Annexation of territory — Townships—Practice, Q. S.— Appeals.

    An appeal from the decision of the action of borough authorities annexing the territory adjacent, as outlined in a plot or plan filed in the court of quarter sessions, is not subject to appeal so as to enable the court under the provisions of the Act of April 22, 1903, P. L. 247, to inquire into the validity of the proceedings themselves, or to review the judgment of the borough authorities in relation thereto.
    Argued May 13, 1907.
    Appeal, No. 39, April T., 1907, by J. A. Sutherland et al., from order of Q. S. Beaver Co., Dec. Term, 1905, No. 29, dismissing petition for appeal in the matter of annexing territory to Beaver Borough.
    Before Rice, P. J., Henderson, Orlady and Beaver, JJ.
    Affirmed.
    Petition for appeal. Before O’Connor, P. J., specially presiding.

      JError assigned was the order of the court.

      D. A. Nelson, for appellant.

      J. L. Holmes, with him W. S. Moore, for appellee.
   Opinion by

Beaver, J.,

Tin's case does not differ in any essential respect from Donora Borough’s Appeal, 26 Pa. Superior Ct. 300, and Washington Borough’s Extension, 26 Pa. Superior Ct. 296, and Clairton Borough Annexation, in which latter case an opinion has this day been filed.

What is said in Clairton Borough Annexation applies here. What we decided there and what we decide here is that the court of quarter sessions has no authority, upon appeal, such as we have here, to inquire into the regularity of the steps taken by the borough authorities looking toward annexation, nor with the conclusion reached by them in the exercise of their discretion, as embodied in the ordinance providing therefor.

The Act of J.une 2, 1871, P. L. 283, expressly allowed such an appeal, but this act, as we have held, was repealed by the Act of April 22,1903, P. L. 247, under which these proceedings were held. Although the constitutionality of the latter act was not distinctly raised in any of the cases referred to, we have no doubt whatever in regard thereto. The fact that the municipal authorities may do an unwise thing under the provisions of an act of assembly is not an argument against its constitu tionality.

The court below did not hold, or even intimate, that the appellants were without remedy. What was held, and as we think rightly held, was that an appeal from the decision of the action of the municipal authorities, annexing the territory adjacent to the borough of Beaver, as outlined in the plot or plan filed in the court of quarter sessions, was not subject to appeal, so as to enable the court to inquire into the validity of the proceedings themselves, or to review the judgment of the municipal authorities in relation thereto. As pointed out in the Clairton Borough case, persons aggrieved by the action of the municipal authorities may, by bill in equity, as in Devore’s Appeal, 56 Pa. 163, inquire, through the court of common pleas, as to the authority for, and the regularity of, the proceedings under which the annexation took place.

It is not necessary to recapitulate what has been said in the preceding cases. We think that what has been said therein fully covers all the questions presented for our consideration herein, except that of the constitutionality of the act, as to which, as already intimated, we have no doubt.

Decree affirmed and appeal dismissed at the costs of the appellants.


text:
    Brezger’s License.
    October 7, 1907 :

      Liquor law — Oral hearing — Practice, Q. S.

    Where the court of quarter sessions at the beginning of the hearings of applications for liquor license makes an announcement which an applicant for a wholesale license might fairly interpret as relieving him from the production of oral testimony, at least upon the question of necessity for the license, and subsequently the court makes an order refusing the license, but thereafter on the same day rescinds the order, and appoints a subsequent day for the hearing of the applicant, the latter after denying the power of the court to make the special order, cannot complain of the refusal of the court to grant the license for adequate legal reasons set forth in the opinion.
    Argued May 14, 1907.
    Appeal, No. 211, April T., 1907, by John Brezger, from order of Q. S. Beaver Co., refusing a liquor license.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Application for a -wholesale liquor license. Before Holt, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Frank 3. Laird, for appellant.
    We contend that the license, in this case, was refused arbitrarily and willfully; that there was not that exercise of a judicial discretion that the law requires: McCrory’s License, 31 Pa. Superior Ct. 192; Schlaudecker v. Marshall, 62 Pa. 200; Cross’s License, 161 Pa. 344; Carlson’s License, 127 Pa. 330; Holland v. White, 120 Pa. 228.
   Per Curiam,

This is a peculiar case. The appellant filed his application for a wholesale liquor license in due time and form. It appears from the record proper, as well as from the judge’s opinion, that at the beginning of the hearings of such applications the court made an announcement which the appellant was fairly warranted in interpreting as relieving him from the production of oral testimony, at least upon the question of necessity for the license. When it came to make the formal orders upon the several applications the court made this order upon his application : “ March 16,1907, the license refused. See paper filed assigning reasons for refusal.” As the matter then stood, the appellant’s application had been inadvertently refused without such a hearing as he was entitled to. But later in the day the court recalled to mind the oral announcement it had made at the outset of the hearings, revoked the order above quoted, and fixed a time a few days later for a hearing in this case. At this time the appellant had full opportunity to be heard, but, instead of availing himself of it filed a paper denying the power of the court to fix said hearing by special order, and concluded with a motion “ upon the whole record to grant the license prayed for.” The court denied the motion, and, for adequate legal reasons set forth in an opinion filed, refused the license. The sum and substance of the matter is that the license was refused on March 16 without such hearing as the appellant was entitled to. This was an error which, if the facts had appeared of record, would have entitled the appellant to have the order reversed on appeal and the case sent back that his application might be heard and decided as the law directs : Gross’s License, 161 Pa. 344. But the court of its own volition immediately corrected the error, and thereby put the appellant in the same position as if he had had the error corrected by appeal to this court, but without the expense and delay incident to such appeal. We cannot see that he has any just ground to complain or to insist that the only way in which the court could correct the error was by granting the license.

The assignments of error are overruled, and the order of March 25, 1907, refusing the license, is affirmed.


author: Orlady, J.,

text:
    Tenth National Bank of Philadelphia v. Smith Construction Company
    (No. 1).
    October 7, 1907 :

      Mechanics’ liens — Claim against public improvement — Notice to owner —Subcontractor.

    A subcontractor who furnishes material for a city improvement, in availing himself of the provisions of sec. 6 of the Act, of June 4, 1901, P. L. 431, to establish a claim against a public improvement, must give the preliminary notice of an intention to file a lien as required to be given under sec. 8 of the act to establish a lien against the property of a private owner.
    Argued March 13, 1907.
    Appeal, No. 23, March T., 1907, by William H. Grothe, from decree of C. P. York Co., April Term, 1905, No. 1, sustaining exceptions to auditor’s report in case of The Tenth National Bank of Philadelphia v. The Smith Construction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to auditor’s report.
    For the facts see Tenth National Bank of Philadelphia v. Smith Construction Company (No. 1), 218 Pa. 581.

      Charles A. Hawkins, with him Jere S. Black, for appellant.

      Henry C. Niles, with him George E. Neff, for appellee.
   Opinion by

Orlady, J.,

In The Tenth National Bank of Philadelphia (Fourth Street National Bank of Philadelphia, Appellant) v. The Smith Construction Company, 218 Pa. 581, decided by the Supreme Court on June 3, 1907, the same question as is presented for our consideration in this appeal was disposed of, and following that decision for the reasons therein stated, the same order is made. The decree in this case is reversed and the report of the auditor absolutely confirmed, the costs on this appeal to be paid by the appellee.


text:
    Tenth National Bank of Philadelphia v. Smith Construction Company
    October 7, 1907 :
    (No. 2).
    Argued March 13, 1907.
    Appeal, No. 24, March T., 1907, by
    David F. Stauffer, from decree of C. P. York Co., April T., 1905, No. 1, sustaining exceptions to auditor’s report in case of The Tenth National Bank of Philadelphia v. The Smith Construction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
   Opinion by

Orlady, J.,

In The Tenth National Bank of Philadelphia (Fourth Street National Bank of Philadelphia, Appellant) v. The Smith Construction Company, 218 Pa. 581, decided by the Supreme Court on June 3,1907, the same question as is presented for our consideration in this appeal was disposed of, and following that decision for the reasons therein stated, the same order is made. The decree in this ease is reversed and the report of the auditor absolutely confirmed, the costs on this appeal to be paid by the appellee.


text:
    Wilkinson v. Evans, Appellant.

      Practice, C. P. — Parties—Trespass—Negligence—Corporations.
    Where an action of trespass is brought to hold an employer, a limited joint-stock company, responsible for death, and it appears that the praecipe and declaration named the stockholders of the company as defendants, but the declaration shows that the proceeding was against the company, and not against the individuals, and it also appears that the company itself was served, and appeared and defended the action, and it was understood that the proceeding was not against the individuals, the names of the shareholders may be treated as surplusage, and a verdict and judgment against the company will be sustained.
    It is not the policy of the law to encourage technical objection to pleadings, which do not tend to promote the logical and expeditious administration of justice.

      Negligence — Master and servant — Dangerous tool — Defective machinery —Duty of inspection.

    It is not only the duty of the employer to furnish his employees with a reasonably safe place in which to work and with reasonably safe: machinery, but also to use care to keep the place of work and the-machinery in a reasonably safe condition. This is a continuing obligation and calls for proper and timely inspection to discover defects.
    In an action to recover damages for the death of an employee of a. foundry company, it appeared that tfie deceased was an unskilled! laborer known as a “handyman” or “-roustabout.” Among his duties! was to assist in shifting casting molds. In the performance of this work a hook of a sling broke and the deceased was killed. The hook had a. crack in it, but the defect was not apparent. It had been in use for five years, and the metal had become crystallized and brittle. No inspection had been made during the timé that the defendant had used the hook. Held, that the question of defendant’s negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued May 14, 1907.
    Appeal, No. 80, April T., 1907, by defendants, from judgment of C. P. Butler Co., Sept. T., 1904, No. 71, on verdict for plaintiffs in case of Thomas Wilkinson and Isabella Wilkinson v. Evan Evans, Charles K. Lapham, J. W. Brown, John Younkins, Daniel Younkins, J. C. Atwell, J. Y. Ritts, Thomas Hays, F. F. Altenberg, F. H. Murphy, Harry T. Rattigan, H. C. Litzinger, Francis Murphy, N. E. English, E. C. Hanniston, partners, doing business as the Evans Manufacturing Company, Limited.
    Before Rice, P. J., Henderson, Oready, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiffs’ son.
    The opinion of the Superior Court states the facts.
    Yerdict and judgment-for plaintiffs for $1,424.16. defendant appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      T. C. Campbell, for appellant.
    Judgment in this case cannot be sustained against the Evans Manufacturing Company, Limited. The company was-not in court: Rehfuss v. Moore, 134 Pa. 462 ; Cock v. Bailey, 146 Pa. 328.
    Even if we admit that the stipulation filed by plaintiffs was a motion to amend and that the permission given by the court to file the paper was on order of amendment, yet the judgment was improperly taken against the Evans Manufacturing Company, Limited, for it had entered no plea: Pittsburg v. Eyth, 201 Pa. 341; Maffitt v. Rynd, 69 Pa. 380.
    October 7, 1907:
    There ivas no sufficient proof of negligence on the part of the Evans Manufacturing Company, Limited, in the case: Mixter v. Coal Co., 152 Pa. 395 ; Ehui v. Nat. Tube Works Co., 203 Pa. 186 ; Bradbury v. Coal Co., 157 Pa. 231; Prescott v. Ball Engine Co., 176 Pa. 459; Purdy v. Westinghouse Electric & Mfg. Co., 197 Pa. 257; Kilbride v. Carbon Dioxide, etc., Co., 201 Pa. 552; Warner v. Erie Ry. Co., 39 N. Y. 468 ; Smith v. Chicago, etc., Ry. Co., 42 Wis. 520 ; Chicago, etc., Ry. Co. v. Healy, 88 Fed. Repr. 245; Allen v. Iron Co., 160 Mass. 557 (36 N. E. Repr. 581) ; Baker v. R. R. Co., 95 Pa. 211; O’Donnell v. R. R. Co., 59 Pa. 239; Bier v. Standard Mfg. Co., 130 Pa. 446; McGuigan v. Beatty, 186 Pa. 329.

      Thomas JET. Crreers, with him Wm. McDowell, for appellees.—
    Under the Acts of May 4, 1852, P. L. 574, and April 12, 1858, sec. 1, P. L. 243, the courts are authorized to strike out from the suit persons as plaintiffs or defendants where by mistake too many are included: Locke v. Daugherty, 43 Pa. 88. This may be done after verdict: Ganzer v. Fricke, 57 Pa. 316; Musser v. Gardner, 66 Pa. 242.
    When the amendment is a formal one, introducing no new or different cause of action, depriving the opposite party of no substantial right, and which ought to have been made in the court below, it will be considered in this court as having been made: Fritz v. Heyl, 8 W. N. C. 374. The same principle is stated in Haughey v. Pittsburg Railways Co., 210 Pa. 367; Waltz v. Penna. R. R. Co., 31 Pa. Superior Ct. 286; Fidler v. Hersbey, 90 Pa. 363.
    The case was for the jury: Finnerty v. Burnham, 205 Pa. 305 ; Newton v. Vulcan Iron Works, 199 Pa. 646 ; Weller v. Aberfoyle Mfg. Co., 28 Pa. Superior Ct. 102 ; Lillie v. American Car & Foundry Co., 209 Pa. 161; Honifius v. Engineering Co., 196 Pa. 47; Elini v. Nat. Tube Works Co., 203 Pa. 186.
   Opinion by

Henderson, J.,

The appellant objects to the judgment in this case on two grounds : (1) that the action is against the individual members of the joint-stock company and that a judgment against the company can]]ot be sustained; (2) that there is no evidence of the defendant’s negligence. The assignments of error cover these propositions.

The praecipe and declaration name the stockholders of the company defendant, but an examination of the declaration shows that the proceeding is against the company' and not against the individuals. The names of the shareholders might well have been omitted and should be treated as surplusage, for the declaration plants the action directly against the company. It was the employer; its default was complained of and its negligence was alleged to have been the cause of the injury. The summons was served on the company and not on the shareholders, and after the return of the writ an appearance was entered for the defendant. At the tnal a stipulation was filed by the plaintiffs that the action was not brought against the individual members of the company ; that they were simply named for the purpose of designating the Evans Manufacturing Company, Limited; that they were not charged with negligence and that a verdict was not sought against them. The verdict of the jury was against the company alone. On this state of facts we think the objection to the regularity of the proceeding is without merit. The company was served, appeared and defended the action, and it was evidently understood at the time that the proceeding was not against the individuals. The defendant was in no way prejudiced by the introduction of the names of the shareholders nor deprived of any opportunity or advantage which it would have had if they had been omitted. The individual stockholders are not in court and are not complaining. The real issue was tried between the proper parties. It is not the policy of the law at the present time to encourage technical objections to pleadings which do not tend to promote the logical and expeditious administration of justice.

There is no dispute in regard to the cause of the death of the plaintiffs’ son. He was at work in the defendant’s foundry not as a skilled mechanic, but as a “ handy man.” He was described as “a roustabout” by one of the witnesses. Among his duties was that of assisting in shifting the casting molds. In the case of heavy castings this was done with a swinging crane and sling. While assisting in removing the cope from one of the molds a hook of the sling by which it was suspended broke and the cope fell on the young man injuring him so that he died within a few hours thereafter. It was discovered on examination that the hook had a crack at the angle where it was bent over, which extended about halfway through the iron and that the metal was crystallized and brittle. This hook was made by the preceding owner of the works and liad been in use for five years or more. The evidence tended to show that the flaw in the hook had existed for a long time, but that it was not observable by casual inspection. The sling was used for supporting heavy bodies and the plaintiffs’ witnesses estimated the weight of the cope which was being lifted at the time of the accident at 2,300 or 2,400 pounds. The company intended that its servants should use this crane and sling as it was used at the time of the accident. No other provision was made for transferring the copes and there was, therefore, no election of means of accomplishing the work. The evidence shows that the sling was in a very defective condition and not adequate to the burden which was placed upon it. It was not an ordinary tool with which the user becomes familiar and whose defects would be first apparent to him. It was used only in connection with the crane and was a part of the machinery taken over by the defendant from the former owners. The great weight of the objects transferred by the crane required a sling of proportionate strength. It could not be expected that a young man from a farm who had worked as a laborer in the foundry about a year and a half would have such knowledge as enabled him to detect defects which were not obvious or to determine any insufficiency of the apparatus. The proof was that technical skill' is necessary to discover such defects and that they might have been discovered by testing the appliance. It may be inferred from some parts of the evidence that the hook was more likely to be strained and subjected to flaws because' of the form in which it was made, although it is not contended that it had any structural defect when made. It was shown that iron subjected to strain has a tendency to crystallize and become brittle and weak and that a flaw in its structure may be determined by striking the metal or perhaps by other tests. No inspection of the slings had been made during the time they were in use. When not attached to the crane they were placed against the wall or thrown down on the floor of the foundry. The court submitted to the jury the question whether the defendant was guilty of negligence in omitting to inspect the sling in view of the long time during which it had been subjected to severe service and whether the deceased was guilty of contributory negligence owing to his failure to discover the defect.

It is not only the duty of the employer to furnish his employees with a reasonably safe place in which to work and with reasonably safe machinery, but also to use care to keep the place of work and the machinery in a reasonably safe condition. This is a continuing obligation and calls for proper and timely inspection to discover defects. The rule on this subject is clearly stated in Finnerty v. Burnham, 205 Pa. 305. The facts in that case are so closely parallel with the appellant’s that the decision is specially apposite. The duty of inspection was there enforced where the defective apparatus was a chain attached to a crane. The appellant contends that the defective appliance was a moveable tool and as to such tools the responsibility of discovering defects is shifted to the employee. It was not such a common tool, however, as everyone is presumed to be familiar with. It was a part of the hoisting apparatus. The employee could not be presumed to have knowledge of the carrying capacity of the slings nor skill in discovering flaws. In the case above cited it was said not to have been the duty of the employee to make an inspection of a chain. That was an obligation resting on the employer. Common observation would not have disclosed the weakness of the sling or enabled the workman tog’uard against danger. Newton v. Iron Works, 199 Pa. 646 is a case of similar character. Taking into consideration the form of the hook, the service to which it was subjected, the length of time it was in use and its susceptibility to physical change we think the court was notin error in submitting to the jury the question whether the company had exercised reasonable care in providing the deceased with safe appliances to be used in his work. It is undoubtedly the duty of an employee to discover and report to his employer any defects which may arise by reason of use made of the tools which he is handling and with whose defects he presumably becomes familiar, but the cases cited do not apply to machinery and apparatus such as that in the use of which the deceased was engaged.

The jury found that the deceased was free from negligence and their conclusion was warranted by the evidence. There is no testimony from which it reasonably appears that a negligent act of the deceased contributed to his injury.

The assignments of error are overruled and the judgment affirmed.