text:
    Bosch, Appellant, v. Hoffman.

      Easement — Bight of. way — Prescription—Adverse use — Act of April 25, 1850, sec. 21, P. L. 569.
    1. Since the Act of April 25,1850, sec. 21, P. L. 569, no right of way can be acquired by user or prescription to unenclosed woodland.

      Deed — Boad appurtenant — Road hy necessity.

    2. Where a road is expressly granted and its precise location and limits are fixed and defined by deed, no easement of another road or right of way is created by implication, unless it appears clearly from the surroundings and res gestas of the grant, that it was the intention of the parties that such easements sho,uld be created.
    3. No easement of one road upon another road can be created.
    4. A way of necessity can be presumed to have been granted, or reserved only when the necessity existed at the time of grant, and this right of way is presumed either to have been granted out of other lands of the grantor, or reserved to the grantor out of the land granted, never out of the land of a stranger. The law does not give a right of way over the land of other persons, to every owner of land who otherwise would have no means of access to it.
    Argued Dee. 14, 1909.
    Appeal, No. 161, Oct. T., 1909, by plaintiff, from judgment of C. P. Carbon Co., June T., 1908, No. 19, for defendants non obstante veredicto in case of Agnes Bosch v. Conrad H. Hoffman et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ..
    Affirmed.

      Trespass for obstruction of an alleged right of way.
    At the trial the jury returned a verdict for the plaintiff for $150.
    Subsequently the court entered judgment for defendants non obstante veredicto, Heydt, P. J., filing the following opinion:
    Agnes Bosch, the plaintiff, brought suit against the defendants to recover consequential damages caused by the defendants' refusal to permit the plaintiff to pass over a certain way over which she claimed the right of passing.
    The plaintiff's right of recovery in this suit depends upon her right to pass over the land of Conrad Hoffman at the point where she was prevented from passing, and this in turn depends upon whether the Boschs had acquired a right of way over the land of'the said Conrad Hoffman.
    In a suit by the same plaintiff against the same defendants for the same cause of action to No. 29, April Term, 1907, the plaintiff based her right of recovery upon the right to pass over this alleged right of way over the land of Conrad Hoffman, claiming that she had acquired said right by prescription. The court entered a compulsory nonsuit on the ground that since the act of 1850 no right of way could be acquired by user or prescription through uninelosed woodland, the land over which this alleged right of way passes being uninelosed woodland. (For discussion of this subject see opinion filed in said case refusing to take off the compulsory nonsuit.)
    In the present suit the plaintiff claimed that she was entitled to this right of way, having acquired it: First, by prescription; second, that the right of way was appurtenant to the Bosch farm; third, that the sale of the Bosch farm created the easement of this disputed road by necessity.
    The facts necessary to an understanding of the question involved are briefly these: Wert, Stryker and Murray, by their deed dated July 5, 1878, and duly recorded, conveyed to John Bosch, the husband of the plaintiff, forty-three and one-half acres of land in Kidder township, Carbon county, Pennsylvania, being part of the Betsey Bice tract, in which deedit is provided that the road known as the “Barkroad,” commencing near the southwest corner of the John Steiner tract, near the east bank of the Lehigh river, and running in a northwesterly direction, is to be reserved and kept open.
    On the east side of the Lehigh river, beginning with the Betsey Rice tract, on the north, in order southwardly, are located the following tracts or surveys: Betsey Rice, Joachim Wigman, John Steiner, William Horsefield and John Christ.
    At the time of the conveyance to John Bosch the northern half of the William Horsefield tract was not owned by Wert, Stryker and Murray, the grantors of Bosch.
    Joseph R. Wert, Albert Wert and wife, and Thomas S. Murray, by their deed dated September 26, 1885, and duly recorded, conveyed to Conrad N. Hoffman, one of the defendants, ninety acres of land, being the southeastern part of the William Horsefield tract. The “Bark road” referred to in the Bosch deed extends from the northern part of the Betsey Rice tract southwardly through the Joachim Wigman tract, and the John Steiner tract, and ends at or near the ferry at the Lehigh river at the southwestern corner of the John Steiner tract, or the northwestern corner of the William Horsefield tract and reaches a public road known as the old state road on the John Christ tract near the red schoolhouse. .At or near the red schoolhouse Conrad Hoffman had erected bars across this right of way to keep in his own cattle and to keep out the cattle of strangers.
    On June 24, 1906, the plaintiff, Agnes Bosch, with her husband, John Bosch, and her daughter, Agnes Bosch, left home in the morning, went to White Haven to attend church services, and on their return home, when they came to Conrad Hoffman’s land, the defendants, Conrad Hoffman, James Ditterline and Niles Smith, were at the bars and refused to let the Boschs go through those bars unless they would agree to put up the bars every time they passed through.
    The Boschs refused to make the promise. The defendants refused to permit them to pass. The plaintiff, who is an old lady, claims that she was compelled, by this action on the part of the defendants, to walk home by a longer route, from the exertion and fatigue of which journey she became sick and lame, and for these injuries she seeks to recover damages in this suit. In order to recover the plaintiff must prove that she was entitled to pass over this piece of road from the ferry to the red schoolhouse which crosses Hoffman’s land.
    The plaintiff’s contention, to wit, that she had a right to use this road by prescription, cannot be sustained for the reasons set forth in the opinion filed above referred to, and for the further reasons set forth in the charge to the jury in this case.
    The second contention is that said road was appurtenant to the land sold to Bosch.
    When Wert, Stryker and Murray were the owners of all the tracts in that neighborhood they could use all the tracts-in any manner they desired, but it did not create an easement; they used the tracts under the higher right of united ownership. The roads were constructed primarily as log roads leading down to the ferry and were used as such. The alleged easement is not expressed in the deed to Bosch, and it is sought to imply it as attached to the grant. In the deed to Bosch a road is expressly granted and its precise location and limits are fixed and defined by the deed. Where a road is expressly granted and its precise location and limits are fixed and defined by the deed, no easement of another road or right of way is created by implication, unless it appears clearly from the surroundings and the res gestae of the grant, that it was the intention of the parties that such easement should be created. But the intention of the parties must be gathered from the grant, that is, from the paper writing. If anything appears in-the writing which goes to show that it was not the intention of the parties 'to create an easement, such easement does not exist.
    Where the. terms of the writing specifically describe the grant as to the particular subject, such description, in all fairness, must be understood to fix the terminus of the grant, and to exclude the creation of an easement by implication.

      Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property, and the other res geste of the transaction: Fitzell v. Phila., 211 Pa. 1; Neely v. Phila., 212 Pa. 551.
    The plaintiff, however, contends that the road from the ferry to the red schoolhouse was appurtenant to the “Bark road”; that the “Bark road” would be useless but for this other road. This position is untenable; this would be creating an easement of one road upon another road; that is, an easement upon an easement, or an appurtenance to another appurtenance.
    A mere easement may without words pass as an incident to the principal object of the grant, but property of the same rank or kind as that conveyed in terms cannot be said to be an incident to the principal object of the grant: Investment Co. of Phila. v. Ohio & N. W. Ry. Co. (U. S.), 41 Fed. Bepr. 378; 1 Words and Phrases Judicially Defined, p. 479.
    A thing corporeal cannot properly be appurtenant to ■ a thing corporeal, nor a thing incorporeal to a thing incorporeal: 1 Words and Phrases Judicially Defined, p. 484.
    The thing appurtenant must be of an inferior nature to the thing to which it is appurtenant: 2 Blackstone, 19.
    The third position is that when Wert, Stryker and Murray conveyed the land to Bosch, they being also at that time owners of the southern half of the William Horsefield tract, the easement of passing over the Conrad Hoffman tract was created by necessity; that the Bosch farm was located back in the woods, and that there was no way out from the Bosch farm to the public road except over other lands of the grantors. Granted that where the owner of a tract of land fronting upon a public highway sells a portion that is entirely surrounded by the land of the grantor and of strangers, with no outlet except over the lands of the grantor, the grantee is entitled to a right of way over the grantors’ lands, unless the situation of the land or the object for which it is used and conveyed shows that no grant of such right was intended. The difficulty with this position arises not from the law, but from the facts in this case. The grantors of Bosch at the time of this conveyance to him had no .title to or interest in the northern half of the William Horsefield tract, where the road from the ferry to the red schoolhouse begins. The grantors of Bosch could not impress a servitude upon the land of a stranger, and since they did have the power to create an easement, the easement in law does not exist.
    The owner of land surrounded by land of another, is not entitled to a way of necessity over the surrounding land, when the circumstances are such that no grant or alienation in the, nature of a grant, can be presumed: 23 Am. & Eng. Encv. of Law (2d ed.), 16.
    A way of necessity can be presumed to have been granted, or reserved only when the necessity existed at the time of grant, and this right of way is presumed either to have been granted out of other lands of the grantor, or reserved to the grantor out of the land granted, never out of the land of a stranger. The law does not give a right of way over the land of other persons, to every owner of land who otherwise would have no means of access to it: Richards v. Railroad Co., 153 Mass. 120.
    Necessity is only a circumstance resorted to for the purpose of showing the intention of the parties, and raising an implication of a grant: ... It is not the necessity which creates the right of way, but the fair construction of the acts of the parties. No necessity will justify an entry upon another’s land. If a man can be supposed to hold land without any right of access to it, a grant of it would not convey to the grantee any right to pass over the adjoining land, however necessary it might be to the enjoyment of the thing granted. He would acquire nothing more than his grantor held: Nichols v. Luce, 41 Mass. 102.
    One of the definitions of easement in Bouvier’s Dictionary is: “A privilege which the owner of one adjacent tenement hath of another existing in respect to their several tenements, by which that owner against whose tenement the privilege exists, is obliged to suffer or not to do something-on or in regard to his own land for the advantage of him in whose land the privilege exists.”
    Hoffman’s land not being adjacent to the land of Bosch could not be impressed with an easement.
    From this discussion we reach the irresistible conclusion that Agnes Bosch, the plaintiff, did not have the right to pass over Hoffman’s land at the place where the bars were erected. But assuming that we were in error in our line of reasoning on this branch of the case, we would still have to reach the conclusion that the plaintiff is not entitled to recover in this suit. At the trial we submitted to the jury the question of the reasonableness of the bars which were put up by Mr. Hoffman. Under the charge of the court the plaintiff’s right to recover depended upon the determination of this question. It is true, under the instruction given, the verdict of the jury would establish the fact that the bars were an unreasonable obstruction.
    Under the law it is well settled that where land is subject to a right of way, the owner of the land, for the protection of his lands, may erect gates or bars across the right of way, provided, that he observes a reasonable regard for the convenience of the owner of the right of way: Hartman v. Fick, 167 Pa. 18; Connery v. Brooke, 73 Pa. 80; Kohler v. Smith, 3 Pa. Superior Ct. 176; Washburn on Easements, 264.
    At the trial the issue was not raised whether these bars put there by Hoffman were a reasonable or an unreasonable obstruction; there was not a particle of evidence that the bars erected were not reasonable; the plaintiff refused to agree to replace the bars, not for the reason that they were too heavy or unreasonable in any way, but she refused to consent to replace them because she alleged the defendant, Hoffman, did not have the right to place any bars across her right of way.
    The court being of the opinion that under the authorities Hoffman had the right to put the bars across the way, and having such right, to demand from the plaintiff the promise to restore the bars in place after crossing, and she having refused to do so for no other reason than because she claimed he had no right to put them there, the question should not have been submitted to the jury, and the. plaintiff is not entitled to recover.
    Now, June 11, 1909, the rule for a new trial is discharged; the rule for judgment for the defendants non obstante is made absolute; all the evidence taken upon the trial is certified and filed so as to become a part of the record, and the judgment is entered for the defendants upon the whole record non obstante veredicto.

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

      Charles F. Wharen, with him James M. Breslin, for appellant.
    — Where land is conveyed that caimot be reached without going over the land of the grantor or by trespassing on strangers a way of necessity is implied: Wissler v. Hershey, 23 Pa. 333; Gardner v. Weaver, 11 W. N. C. 544; Com. v. Burford, 73 Atl. Repr. 1064.
    The right is also claimed on the theory of user by the common grantors while owning both tracts: Kieffer v. Imhoff, 26 Pa. 438; Phillips v. Phillips, 48 Pa. 178; Church v. Vonneida, 6 Phila. 557; Zell v. First Univ. Society, 119 Pa. 390.

      Frederick Bertolette and Laird H. Barber, for appellee.
    March 3, 1910:
   Opinion by

Beaver, J.,

Prior to January 21,1857, Messrs. Wert, Stryker and Murray claimed to be the owners of five consecutive tracts of land situate on the Lehigh river in Carbon county, surveyed in pursuance of warrants in the names of Betsy Rice, Joachim Wigman, John Steiner, William Horsefield and John Christ, respectively. On the date above mentioned a deed was made from Murray, Stryker et al. to one Richard Pirn in compromise of a certain action of ejectment, then pending in the court of common pleas of Carbon county, brought by Richard Pirn against Samuel D. Stryker and a certain Josiah A. Cole, which was compromised and settled upon the terms that the tract of land in the warrantee name of William Horsefield, containing 406 acres, was to be equally divided between them, each party to execute to the other a quitclaim deed of one-half; the said Samuel D. Stryker to have’the half adjoining the tract in the warrantee name of John Christ, which was the southern tract of the series above mentioned, which is the southwest side of the tract, and the said Richard Pirn to have the half adjoining a survey in the warrantee name of John Steiner, being the north side of the tract.

July 5, 1878, Wert, Stryker and Murray and their wives conveyed a part of the tract surveyed in the warrantee name of Betsy Rice, being the extreme northern tract of the body of lands above described, to John Bosch, the husband of the plaintiff, in which deed it is provided that the road known as the Bark road, commencing near the southwest corner of the John Steiner tract near the-east bank of the Lehigh river and running in a northwesterly direction, is to be reserved and kept open. This road begins at the southwestern corner of the Steiner survey or, as is shown on the draft of the plaintiff and as some of the witnesses testified, at the extreme northwest corner of the William Horsefield, and there is no dispute, as we understand it, that at the time of the purchase of Bosch from Wert, Stryker and Murray there was a road either beginning or terminating at that point and connecting with a ferry which there crossed the river.

The claim is made by the plaintiff that, because of that reservation and because of the necessity of the case, Bosch had a right of way through the northern half of the William Horsefield tract which did not then belong to Wert, Stryker and Murray, but belonged to Richard Pirn or his successors in title. It is very clear that Wert, Stryker and Murray having conveyed the title of the northern half of the William Horsefield to Pirn in 1857, without reservation of any right of way through the land conveyed, could not have had an easement upon and over, the said land and indeed it does not appear that there was any road then in existence over the said land. When, therefore, they made their conveyance to Bosch, they could convey only what they had, and Bosch could not have an estate or interest or easement in, over or upon the land conveyed by his grantors prior to the time of their conveyance to him. The defendant Hoffman was the owner of a portion of the southern half of the Iiorsefield tract which was conveyed to him by Wert, Stryker and Murray in 1885; but, in order to reach the lands of Hoffman, it was necessary to cross the northern half of the William Horsefield tract, there being but one road running across the entire width of the tract which connected with the road passing through the portion of the southern half of the tract owned by the defendant Hoffman.

The testimony clearly shows, and there is practically no denial of the fact, that these tracts of land were open woodland from which the timber had been cut and removed and upon which there was a regrowth of the timber in many parts, and that for the purpose of removing the said timber log roads had been opened and used in many directions, the Bark road which led to or from the river being well defined and kept open for public use. There do not seem to have been, so far as the evidence shows, any public roads regularly laid out, through these several tracts, although what is called the Buena Vista road and the state road seem to have been taken for granted as public roads.

A road seems to have been constructed from the Bark road on the John Steiner tract entirely through the William Horse-field tract and connecting with a road on the John Christ tract south of it. Across this road on the land of the defendant bars were erected for the purpose of restraining his own cattle and shutting out the cattle of others. The plaintiff, with her husband and daughter, appeared at these bars, claiming the right to pass through them. This was denied by the defendant Hoffman and a condition annexed to their passage insisted upon — that they could go through only upon the promise that they would restore the bars whenever they passed. The husband seemed to be willing to accede to this, but the wife refused to make the promise and finally persuaded her husband to unite in the refusal. Hoffman insisted upon the condition upon which they should be allowed to pass and they finally turned and retraced their steps, the plaintiff walking to White Haven and returning to her home by another road on the western side of the river. She claimed to have been overcome by her walk, from which she did not recover for some time, and for damages resulting therefrom she brought suit against the defendant Hoffman and the men who were with him repairing his bars at the time the plaintiff and those accompanying her attempted to pass.

Upon the trial of the case, a verdict was rendered for the plaintiff, but, upon a motion for a new trial and for judgment non obstante veredicto, the court, after mature deliberation and an exhaustive opinion filed, granted the motion for judgment n. o. v. From this final disposition of the case an appeal was taken, and the . only assignment of error is the action of the court in making absolute this motion.

In this opinion the court below states the facts more fully than we have done. In it the court says: “In a suit by the same plaintiff against the same defendants for the’same cause of action, No. 29, April Term, 1907, the plaintiff based her right of recovery upon the right to pass over this alleged right of way over the land of Conrad Hoffman, claiming that she had acquired said right by prescription. The court entered a compulsory nonsuit on the ground that since the act of 1850 no right of way could be acquired by user or prescription through uninclosed woodland, the land over which this alleged right of way passes being uninclosed woodland. (For discussion of this subject see opinion filed in said case refusing to take off the compulsory nonsuit.)” We do not find, on an examination of the evidence, that the record of this suit was given in evidence, but the testimony is so clear and unequivocal and practically uncontradicted that the lands referred to were uninclosed woodland that it is not difficult to reach the conclusion that, if there was such a suit as the court refers to, the nonsuit was very properly entered; and for the same reason we would reach the conclusion in this case that the plaintiff having acquired no right of way over the defendant’s property by prescription, she was not entitled for that reason to recover.

It is equally difficult to understand how the plaintiff could have claimed a right of way by necessity or by implication over the northern half of the William Horsefield tract which was not owned by the grantors when they made the conveyance to her husband of the tract or parcel of land on the northern tract, of the batch of surveys, surveyed in the warrantee name of Betsy Bice. If she claimed it by an approach from the John Christ tract on the south over the southern half of the William Horsefield survey, there would have been no connection therefrom to the northern line of that survey and, therefore, could not have been claimed, it seems to us, as appurtenant in any way to the tract of land occupied by the plaintiff’s husband in the extreme northern tract of the body of lands referred to. From either point of view, therefore, it seems to us that the northern half of the William Horse-field tract was an impassable barrier to the acquisition of any continuous right of way from the Steiner tract on the north of the William Horsefield to the Christ tract on the south of it, or from the Christ tract on the south to the Steiner tract on the north.

This question is so fully argued by the trial judge in his opinion on the motion for judgment n. o. v. that it seems to us to be unnecessary to argue it at length here. Indeed, upon a careful examination of the defendant’s points, as presented at the trial, it seems to us that it would have been perfectly proper for the court to have directed a verdict for the defendant, there being practically, under the evidence, no disputed facts as to the material points involved to be submitted to the jury. The case seems to us to be entirely free from difficulty, and we have no hesitation in reaching the conclusion that the judgment was properly entered for the defendant, notwithstanding the verdict, there being no evidence of any kind that the owner of the upper half of the William Horsefield survey ever in any way, by grant, permission or otherwise, vested in the plaintiff or her husband any right of way over his land. There was, therefore, a fatal physical break in the continuity of the plaintiff’s claim, even if her legal position, which we need not argue, had been sound.

Judgment affirmed.


source: Caselaw Access Project

author: Orlady, J-.,

license: Public Domain

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

      Negligence — Street railway companies — Traumatic tuberculosis— Expert testimony — Evidence.
    1. In an action to recover damages for personal injuries the plaintiff may show in a proper way that traumatic tuberculosis resulted directly from the personal injury which he had sustained.
    2. Where the evidence shows the infliction of the injury and its character, the existence of a bruise on the plaintiff’s left side followed by pleurisy, continuing cough, expectoration in which there was tubercular bacilli, loss of weight all within a period of eight months after the injury, the absence of any other reasonable proximate cause, and two eminent physicians testify as to the definite relation between the injury and the tuberculosis of the plaintiff, and other eminent physicians called by the defendant admit that there had been cases, although few in number, where trauma had been, the direct cause of tuberculosis, the question whether the injury was the cause of the tuberculosis of the plaintiff, is a question which should be submitted to the jury.
    Argued Dec. 16, 1909.
    Appeal, No. 173, Oct. T., 1909, by-plaintiff, from judgment of C. P.'No. 2, Phila. Co., June T., 1907, No. 4,187, on verdict for plaintiff in case of Benjamin Blasband v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Hendeeson, Moeeison, Oelady, Head, Beavee and Poetee, JJ.
    Reversed.
    Trespass -to recover damages for personal injuries. Before Wiltbank, J.
    The case turned upon the question whether it was proper to submit to the jury the question whether the plaintiff’s tuberculosis resulted from a personal injury which he had suffered from the undisputed negligence of the defendant.
    The court charged in part as follows:
    [I therefore instruct you that when you proceed to estimate in money what is a fair compensation for the injury to this man, you are to exclude all evidence touching the point of traumatic tuberculosis as fully and conclusively as if none had been offered.] [1]
    [Your verdict must be for the plaintiff, but when you proceed to make it up, you must throw out of consideration all question of consumption. The plaintiff is not entitled to consideration on that point, not because we do not sympathize with him, but we have not evidence upon which you may act.] [2]
    [The cases of traumatic tuberculosis are shown to be so few in number out of the volume of cases attributable to other causes, as to which the evidence is not disputed here, that at best the attribution of the tuberculosis to trauma does not rise above the grade of a theory adopted by a relatively small number (a most respectable number, it is true) of one profession. The witnesses have manifested a scientific spirit in searching the truth and reporting upon it. They would seem, however, tó justify wholly my characterization of the evidence. Before such a theory can become a factor in determining the rights of the mass of men in our community, it must have so far advanced in the degree of certainty attached to it that it may be fairly said to have passed beyond the region of possibility and to have entered that of probability, according to the understanding of the average intelligent man. Such is not the effect of the evidence adduced here by these gentlemen.] [3]
    Verdict and judgment for plaintiff for $600. Plaintiff appealed.

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

      Harry A. Mackey, for appellant.
    — It was error to withdraw from the jury the question of the plaintiff’s tuberculosis: O’Neill v. Dry Dock, etc., R. R. Co., 15 N Y. Supp. 84; State v. Clark, 12 Ir. (N. Car.) 151; Hynes v. McDermott, 82 N. Y. 41; Taft v. R. R. Co., 35 N. Y. Supp. 1042; Tait v. Ry. Co., 55 N. Y. App. Div. 507; Castner v. Sliker, 33 N. J. L. 507; Hardiman v. Brown, 162 Mass. 585 (39 N. E. Repr. 192); Seckinger v. Mfg. Co., 129 Missouri, 590 (31 S. W. Repr. 957); Railroad Co. v. Buck, 96 Indiana, 346; Beauchamp v. Mining Co., 50 Michigan, 163 (15 N. W. Repr. 65); Ry. Co. v. Kemp, 61 Md. 74; Dickson v. Hollister, 123 Pa. 421; Del. & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 36; Temme v. Schmidt, 210 Pa. 507.

      Thomas Learning, with him Bernard J. O’Connell, for appellee.
    — A court never submits to a jury any question which can only be answered by a guess: Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Frazier Bros. v. Lloyd, 23 W. N. C. 178; Chilton v. Cent. Traction Co., 152 Pa. 425; Howard Express Co. v. Wile, 64 Pa. 201; Jones v. R. R. Co., 202 Pa. 81; Laven v. Moore, 211 Pa. 245; Sowers v. McManus, 214 Pa. 244; O’Reilly v. Ry. Co., 17 Pa. Superior Ct. 626; Alexander v. Water Co., 201 Pa. 252.
    No' inference can be based upon an inference but only upon facts: Phila. City Pass. Ry. Co. v. Henrice, 92 Pa. 431; Bube v. Weatherly Borough, 25 Pa. Superior Ct. 88; Keefer v. Ins. Co., 201 Pa. 448.
    The law will not undertake to deal with matters which aré insusceptible of proof, such as mere theories: Collins v. Gas Co., 131 Pa. 143; Huston v. Freemansburg Borough, 212 Pa. 548.
    March 3, 1910;
   Opinion by

Orlady, J-.,

The plaintiff in this action of trespass recovered a verdict of $600, in the court below, and being dissatisfied with the amount of the verdict, he brings this appeal, with a statement of the question involved as follows: Whether or not the learned trial judge was justified in charging the jury that there could be no recovery for traumatic tuberculosis, notwithstanding the fact that competent physicians had testified that in their judgment the plaintiff was suffering from tuberculosis of the lungs caused by trauma. The case was earnestly contested by able counsel on the trial and in this court, and it is practically conceded that the testimony in regard to the negligence of the defendant was so thoroughly proven,.that it was treated as an admitted fact. The character and extent of the injury, however, becomes important in another view of the case.

On June 22, 1907, the plaintiff was driving a horse hitched to a Dearborn wagon, which was loaded with boxes containing soda water and soft drinks. Before he had a chance to get off the defendant’s track, a car struck the back of the wagon, with such violence as to break the axle and front wheels from the body, tear the bottom from the wagon, and to upset the plaintiff back among the boxes, some of which fell on him. One witness testified that the car struck the rear end of the wagon, on the left wheel, and turned it completely around so as to face the other way. The plaintiff testified that prior to that time he had been in good health, and that in this accident he received a cut on the left arm which was of minor account, and an internal injury to his left side about the lower rib. That at the place of the injury on his left side there was a bruise, discoloration, tenderness and pain. That when he went home, he sent for his family physician, Dr. Propper, and was confined to bed for about two weeks. That he had continuous pain in his left side and could not sit up for any length of time, that about September or October a cough developed, which did not yield to treatment and has since continued.

Dr. Propper testified that he saw the plaintiff in bed the evening of the accident and found a contusion on the left side of the chest, with a bluish discoloration about two inches in diameter; that during the first or second day following the accident his chest was too sore to make a deep examination, and.that about the ninth or tenth day thereafter he made a careful examination and noticed pleuritic or rough sounds in the chest'; the patient still complained of the pain in the left side which has continued without modification down to the time of the trial. In September a persistent cough developed, and in February following, the plaintiff began to lose weight. An examination of his sputum developed the presence of tubercular bacilli; he was then informed by the physician that he had tuberculosis and in April took a trip abroad, returning in September, 1908. At the time of the trial, it was admitted by all physicians who had examined him, that he had tuberculosis which affected both lungs, the left one being the more seriously involved. Dr. Propper had known the plaintiff for a number of years, and testified that there was nothing in his appearance, by observation, to indicate that he was not in good health, and particularly nothing to indicate that he had tuberculosis, although prior to that time, he had a chronic catarrhal cough, which affected the nasal membrane, and it is but fair to state that there was nothing in any of the testimony to connect it with the complication in the lungs.

A number of eminent physicians were called as witnesses for plaintiff and defendant, and their prominence in their profession was so well known to court and counsel, that no preliminary inquiry was made to determine their competency to testify as expert physicians, and their evidence was received without any objection. They were graduates of and professors and teachers in colleges of world-wide reputation. They had experience extending over many years of clinical and hospital practice. Several of them had devoted special attention to the investigation of tuberculosis, its cause and treatment, and one was an author of medical works of recognized professional standing.

Dr. James C. Wilson, with forty years of experience, testified that he had made a special study of tuberculosis and described it as an infectious disease, caused by the tubercular bacillus, that he had opportunities for examination of a great number of cases, and was familiar with the literature of his profession on this subject, that at times the disease undergoes its evolutions rapidly and sometimes slowly. He stated without qualification that tuberculosis could be caused by an injury, and that in his personal experience he knew of four cases that were caused by trauma or blow, that only within comparatively recent years the subject of traumatism or injury as a cause of tuberculosis has attracted the attention of the profession. After an examination of the plaintiff, in the light of the admitted facts in regard to his injury, subsequent pleurisy, cough and demonstration of the presence of tubercular bacilli within eight months after the injury, and the development of an extensive tuberculosis of the lungs, with pleuragnious origin, he unhesitatingly stated that the relation between the injury as a cause and the present condition of the patient as an effect, was obvious, and from the admitted facts in regard to the case, that the tuberculosis from which the plaintiff then suffered was caused by ihe injuries sustained at the time of the accident; that the post nasal catarrh was not a cause of his present condition, and further, that the most recent, systematic writers on the practice of medicine and upon tuberculosis, all include trauma or injury among the causes of tuberculosis.

Dr. Julius Salinger, for many years chief of medical clinics in colleges 'in this city examined the plaintiff twice, some months before the trial, and found by an examination of his sputum that he was suffering from pulmonary tuberculosis. He testified that according to the authorities and his own experience, trauma acts in two ways, in producing tuberculosis, either by starting into activity a latent focus which is quiescent and shows'no disturbance, or by so damaging the pulmonary tissue that the tubercle bacillus finds a ready soil for its entrance and development. That in his examination of recorded cases, in' German, English and American medical literature, he had within the last two years made a record of forty-seven cases of traumatic tuberculosis and that it was only within eight or nine years that the subject of traumatic injuries as a cause of tuberculosis, began to be investigated, and that five cases had come within his personal experience, none of which had any connection with any legal claim.

The defendant called as witnesses men of like prominence, the first being Dr. Walter Strong, who was the surgeon in chief and visiting surgeon to two hospitals of this city. He testified that while comparatively few cases of tuberculosis following traumatism, or in connection with traumatism, had come under his personal observation, he had treated all kinds of tuberculosis, and that in his experience he had seen probably two cases that might be construed as following or being connected with traumatism. He had examined the plaintiff four days after the accident for the defendant company, and found an abrasion of the left forearm which was beginning to heal; that an examination of the chest revealed no sign of injury, that is, there was no sign of any sensitive place, nor was there any discoloration which is usually found in connection with bruises, however, the plaintiff called the attention of the witness to a sensitive spot which was on the left side below the floating ribs.

Dr. Henry Beates, an assistant in several special institutions in this city, testified that' during the thirty years of his practice he had seen several hundred cases of tuberculosis and had not met with any case of traumatic tuberculosis, and that he has never seen the first proof that tuberculosis has ever resulted from injury, though admitting that the literature of the profession made record of a number. He was directly questioned as follows: “ Q. Do you believe that there ever was one case of tuberculosis of bones following injury? A. Yes, sir, but not caused by the injury. There is a big difference between causing it and being followed by it. Q. Your theory is that’the tubercle bacilli locate in that part because it has been weakened by injury? A. That can happen, certainly. Q. Why cannot that happen in the lungs following injury to the pleura? A. It could.”

Dr. William D. Robertson, a pathologist for two hospitals, testified that he had never seen a case of tuberculosis* of the lungs caused by traumatism. However, on cross-examination, he admitted that he had never made a special investigation of tuberculosis with traumatism as an originating cause.

Dr. Abraham J. Cohen, of like prominence and experience, testified that he had never seen a case of traumatic tuberculosis, but admitted that a diaphragmatic pleurisy could spread to the lungs, and that an injury to the pleura which would wesCken the lungs would have a tendency to collect the tubercular bacilli, which would naturally gravitate and collect at the weakest point if the injury was sufficient to injure the pleura or lung covering.

Dr. William E. Hughes, a pathologist, consulting physician and professor of clinical medicine in three hospitals and colleges, and lecturer in post graduate work, testified that about a thousand cases of tuberculosis had been examined by him, and that in his experience he has seen three fairly well marked cases of traumatic tuberculosis of the lungs, all of which had special characteristics; there had been an injury to the chest which injury unquestionably involved the lung. Immediately afterward there was inflammation of the lung, which subsided and eventually in the course of a few months, tuberculosis developed at that site, and ran a rapid course. He further testified that he did not believe it possible for tuberculosis to follow any trauma to the lung unless it could be demonstrated that there had been an injury to the pulmonary tissues.

The learned court submitted the case to the jury, and limited the plaintiff’s right to recover to a fair compensation for the injury, and directed them to exclude all evidence touching the question of traumatic tuberculosis as fully and conclusively as if none had been offered. In direct terms the court instructed the jury, viz: “The cases of traumatic tuberculosis are shown to be so few in number, out of the volume of cases attributable to other causes as to which the evidence is not disputed here, that at best the attribution of the tuberculosis to trauma does not rise above the grade of a theory adopted by a relatively small number (a most respectable number, it is true) of one profession. Before such a theory can become a factor in determining the rights of the mass of men in our community, it must have so far advanced in the degree of certainty attached to it that it may be fairly said to have passed beyond the region of possibility and to have entered that of probability, according to the understanding of the average intelligent man. Such is not the effect of the evidence adduced here by these gentlemen.”

From this record, it is quite apparent that during the past ten years there has been a startling advance in the diagnosis and treatment of this dread malady, which is the cause of one-seventh of our whole mortality. Philanthropists and scientists have combined their efforts with the medical profession, and have investigated in a more intense way than ever before to discover the cause and remedy for tuberculosis. This investigation is not confined to isolated localities, or to the research of a few persons. All the prominent medical colleges of this country have been directing a special investigation in that direction, and the results are most gratifying in making more certain the preventive and curative treatment for this dread disease. The general sum of knowledge on this as in nearly all other branches is so subdivided, that courts are obliged often to call to their aid the scientist and specialist to explain conditions which are unknown to the general public. The mere difference of opinion between witnesses, or our failure to comprehend the conclusions of the scientific investigator or agree with his deductions, may affect his credibility from the individual standpoint, but it does not affect the admissibility of such testimony for the consideration of a jury. If admissible for any purpose, it.should be submitted to the jury for their consideration under proper instructions. The competency of the witness was for the court and this question was conceded by the defendant. The sufficiency of the evidence was for the jury: Oil Co. v. Gilson, 63 Pa. 146; Pannell v. Com., 86 Pa. 260; Com. v. Hazlett, 16 Pa. Superior Ct. 534; Brashear v. Traction Co., 180 Pa. 392; McCafferty v. R. R. Co., 193 Pa. 339; Dickson v. Hollister, 123 Pa. 421; Temme v. Schmidt, 210 Pa. 507.

The testimony in this case discloses that as a result of painstaking and conscientious research by disinterested scientists, a specific germ has been demonstrated beyond all question of doubt as causing the diseases of diphtheria, typhoid fever, pneumonia, la grippe, malaria and tuberculosis. There is a clear distinction between the guess and conjecture that is inveighed against by some judges and some text writers, and the carefully formed opinion of capable, honest and eminent physicians. The first implies a lack of definite knowledge, a mere imperfect opinion, a surmise; the other means an intelligent judgment formed, and an honest conclusion reached by a capable person, after due and fair investigation of all the facts pertaining to the case, and while even this may not produce a mathematical certainty, it does induce a positive belief in the mind of conscientious men.

The question of the admissibility of expert testimony and the credence to be given to it by a jury, have been subjects of frequent controversy but the decisions in our state are uniform and the rules are clearly defined. As held in Com. v. Farrell, 187 Pa. 408, “two things must concur to justify the admission of an expert witness. First, the subject under examination must be one that requires that the court and jury have the aid of knowledge or experience such as men not specially skilled do not have, and such therefore as cannot be obtained from ordinary witnesses; second, the witness called as an expert must possess the knowledge, the skill or experience needed to inform and guide the court and jury in the particular case. Upon such a question such a witness may be called and may testify, not merely to facts, but to his conclusions from the facts, because the court and jury are without the knowledge necessary to enable them to draw the conclusion for themselves without aid.” ' All expert or opinion testimony is of course valueless unless it comes from persons who first give satisfactory evidence that they are possessed of such experience, skill or science as entitles their opinion to pass for scientific truth: Carr v. Northern Liberties, 35 Pa. 324. Thus, a chemist, a physician, a mechanic, an artist, has special knowledge of the things that fall within the range of his studies and daily practice, and because of such special knowledge not within ordinary reach, his testimony upon a subject relating to his particular line of study or research is regarded as more exact and entitled to more weight than that of witnesses not possessing the same opportunity for acquiring thorough knowledge of the subject: Struthers v. Railroad Co., 174 Pa. 291. The greater the experience or knowledge, the greater is the value of the opinion resting upon it: Wells v. Leek, 151 Pa. 431.

The purpose the law has in calling to the jury’s aid the testimony of a skilled expert is to supplement their general knowledge and experience in relation to the matters before them and thereby to aid them in the exercise of their own knowledge, to the end that a more full and accurate conclusion may be drawn from the evidence, and such testimony is justly entitled to great weight, if the jury are impressed by the facts and opinions testified to by the expert witness, and are convinced that the experience and means of observation of the expert justify him in arriving at a definite conclusion, in regard to the special matters he describes. The testimony of no witness, however eminent, is to be blindly received by a jury, but it is to be intelligently examined in the light of the knowledge of the jury, and is to be given force and control only to the extent that the testimony is found to be reasonable, and it is not for the court but for the jury to consider the testimony of the expert with all the other evidence in the case.

We have not overlooked the vigorous protest of the Supreme Court against opinion evidence in Huston v. Freemansburg Boro., 212 Pa. 548, as follows: “In the last half century the ingenuity of counsel, stimulated by the cupidity of clients and encouraged by the prejudices of juries has expanded the action for negligence until it overtops all others in frequency and importance, but it is only in the very end of that period that it has been stretched to the effort to cover so intangible, so untrustworthy, so illusory and so speculative a cause of action as mere mental disturbances. It requires but a brief judicial experience to be convinced of the large proportion of exaggerations and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door to this new invention the result would be great danger if not disaster to the cause cf practical justice.” It is urged that the testimony in this case is so doubtful and unsatisfactory in tracing the present tuberculous condition of the plaintiff backward to the injury of June, 1907, that the court was justified in withdrawing its consideration entirely from the jury. To this we cannot agree; while we are in full accord with the views of the Supreme Court in the last cited case, it certainly does not mean that we are to close our eyes to results that are testified to with reasonable certainty by eminent scientists. The existence of traumatic tuberculosis does not stand on such doubtful ground as the mere mental disturbance relied upon by the plaintiff in Huston v. The Boro. There is no serious controversy among the witnesses as to tuberculosis being caused by physical violence to the body. The infliction of the injury and its character, the existence of the bruise on the left side, followed by pleurisy, continuing cough, expectoration in which there was tubercular bacilli, loss of weight, all within a period of eight months, the absence of any other reasonably proximate cause presented a sequence of undisputed facts, and from these, Drs. Wilson and Salinger testified that the relation between the definite cause and the unchallenged condition of the plaintiff at the time of the trial was obvious, and for the defendant, Dr. Strong, found the sensitive spot on the left side just where the plaintiff testified he had received his injury, and he had seen in his own practice two cases of traumatic tuberculosis. Dr. Beates testified substantially that the very condition of the plaintiff at the time of the trial could be produced if the pleura had been injured. Dr. Cohen admitted that diaphragmatic pleurisy could spread to the lungs, that an injury to the pleura which would weaken the lungs would have a tendency to produce the plaintiff’s present condition, if the injury was sufficient to injure the pleura. Dr. Hughes had seen three fairly well marked cases of traumatic tuberculosis of the lungs, but he did not believe it possible for tuberculosis to follow any trauma to the lungs unless there had been injury to the pulmonary tissue. All the physicians called except Drs. Beates and Robertson, admitted the reasonable probability of tuberculosis following trauma, and all but these two testified to having personally seen in their own experience cases of this character.

With such an array of witnesses of extensive personal experience, observation, skill, judgment and reputation, and the facts with their reasonable inferences being developed under skilful examination by able counsel, their testimony should have been submitted to the jury for its consideration, along with the other testimony in the case, and should be given such force and control, to the extent that the facts and opinion of the experts are found to be reasonable. The physical injury to the left side promptly followed by the clearly defined conditions, were not presumptions, but affirmative facts following each other from a defined proximate cause, in a progression which satisfied the experienced physicians of the causal connection with the succession of events: Brashear v. Traction Co., 180 Pa. 392; McCafferty v. R. R. Co., 193 Pa. 339; Matthews v. R. R. Co., 18 Pa. Superior Ct. 10.

We do not feel any alarm for the consequences in acting upon the judgment and opinion of such experts. These or like physicians are the first persons we seek when our personal health is involved, and we accept their conclusions as to the cause of disease and submit ourselves to the treatment they suggest. We are safeguarding the cause of suitors as far as it is possible when we apply the same professional standard in the courts.

The judgment is reversed with a venire facias de novo.


author: Rice, P. J.,

text:
    Commonwealth v. Richardson, Appellant.

      Criminal law — Conspiracy—Common law conspiracy — Evidence— Self-criminating testimony.

    1. A conspiracy at common law is where two or more persons combine, confederate and agree together to do an unlawful act, or to do a lawful act by the use of unlawful means.
    2. Even though no indictment can be brought under secs. 127 and 128 of the Act of March 31, 1860, P. L. 382, for conspiring to bribe and corrupt councilmen in the performance of their public duties, such an indictment may be maintained at common law.
    3. The Act of April 29, 1874, P. L. 115, which was' passed to carry into effect sec. 31, of art. Ill of the constitution, applies only to an attempt to bribe, and not to a conspiracy to bribe.
    4. At common law no overt act is necessary to constitute the offense of conspiracy. In order to render the offense complete, there is no occasion that any act should be done, or that any one should be aggrieved or defrauded in pursuance or in consequence of the unlawful agreement.
    5. The mere fact that testimony was given by a witness in a judicial proceeding against a person charged with the offense of bribery is not a conclusive bar against the use of that testimony against the witness in a subsequent judicial proceeding against him. It is only a bar where it was given under some sort of compulsion. The words “such testimony” in see. 31, art. Ill, does not mean any testimony, but such as the person may have been “compelled to testify.”
    6. Where the record of the prior case fails to show that the accused in the later case testified in obedience to a subpoena, or under any compulsion, and also fails to show that he demurred to answering any question upon the ground that the answer might incriminate him, or on any other ground, the prior testimony of the accused may be used against him.
    Argued Oct. 25, 1909.
    Appeal, No. 46, April T., 1910, by-defendant, from judgment of C. P. Allegheny Co., June T., 1907, No. 50, on verdict of guilty in case of Commonwealth v. Charles R. Richardson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for conspiracy to bribe and corrupt a councilman. Before Frazer, P. J.
    At the trial a motion was made to quash the indictment for the following reasons:
    1. The indictment in this, case charges an offense not known to the law of this commonwealth.
    2. The act of this commonwealth, which is a .part of the penal code, and which was approved April 29", 1874, P. L. 115, provides specifically for the offense of attempted bribery of city councilmen by one or more persons, acting in concert as well as otherwise; defines this offense; names it corrupt solicitation; fixes the penalty, and further provides fully and entirely for every element of the offense and its conviction and punishment; and, therefore, all indictments for the said offense must be exclusively under said act, and for the said offense of corrupt solicitation, and not otherwise.
    3. Because the defendants, or either of them, if guilty according to the facts set forth in the said indictment, are guilty only of corrupt solicitation; a remedy has been by the law of this commonwealth provided for that offense by the said act of April 29, 1874, and this remedy and the provisions of this act must be strictly and exclusively pursued.
    4. Because our penal code provides fully and specifically for the definition, name, punishment and all other matters connected with or concerning the offense purported to be set forth in this indictment, the common law as to that offense is abrogated and nullified, and the provisions of the said penal code must be strictly and exclusively followed, and the indictment must be under the provisions of said penal code and for the offense of corrupt solicitation. Therefore, an indictment for common-law conspiracy will not lie, because of sec. 183 of the penal code, which provides, “in all cases where a remedy is provided, or duty enjoined, or anything directed to be.done, by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such act or acts into effect.” Neither will an indictment lie for conspiracy under the sections of said penal code relating to conspiracy, because the said sections of said code relating to conspiracy do not embrace or comprehend such a case as this.
    5. This indictment is drawn under our penal code, uses the phraseology thereof and of the said act of April 29, 1874, and concludes “contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.” And now, June 20, 1907, after argument by counsel, and upon consideration, the foregoing motion to quash is overruled, and at defendants’ instance bill sealed. [1]
    The court admitted under objection and exception a transcript of the testimony of the defendant, Richardson, given in the case of Commonwealth v. William A. Martin on the trial of an indictment for bribery. [2-4]
    The court also permitted under objection and exception the cross-examination of defendant as to his testimony in the prior case. [1-14]
    The court refused binding instructions for defendant. [15] Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1) refusal to quash the indictment; (2-14) rulings on evidence and (15) refusal of binding instructions for defendant.

      Clarence Burleigh, for appellant.
    — The court below in its opinion remarks that Richardson testified in the Martin case without objection. Under the authorities, this, even if it was the fact, makes no difference: People v. Sharp, 107 N. Y. 427 (14 N. E. Repr. 319); People v. Spencer, 66 Hun (N. Y), 149; Jacobs v. United States, 161 Fed. Repr. 694; U. S. v. Simon, 146 Fed. Repr. 89.

      Warren I. Seymour, for appellee.
    — The word “such” refers to testimony given under compulsion: U. S. v. Kimball, 117 Fed. Repr. 156.
    There is nothing in the record to show that appellant was summoned as a witness in the Martin case: Com. v. House, 6 Pa. Superior Ct. 92; Com. v. Craig, 19 Pa. Superior Ct. 81.
    It is a crime in Pennsylvania to conspire to commit the statutory offense of bribery or corrupt solicitation: Wilson v. Com., 96 Pa. 56; Com. v. Brown, 23 Pa. Superior Ct. 470.
    March 3, 1910:
   Opinion by

Rice, P. J.,

After averring by way of inducement that there was pending and undetermined in the councils of the city of Pittsburg a certain ordinance for the proposed grant of certain franchises to the Pittsburg & Tube City Railroad Company, the count of the indictment under which the appellant was convicted charged, in substance, that the defendants unlawfully did falsely conspire and agree together,' and with other persons whose names were to the grand inquest unknown, to tempt, solicit, bribe, corrupt and influence certain members of the city councils in the performance and discharge of the public and official duties in relation to the ordinance referred to, and to procure their votes and official influence in favor of the enactment of the same and the grant of the franchises to the railroad company, by the use directly and indirectly of large sums, of money and other things of value and personal advantage to the said members of councils, to the prejudice of the city and divers citizens and residents thereof, contrary to the form, etc.

It is suggested in the course of the printed argument of appellant’s counsel upon the 1st, 15th, 16th and 17th assignments of error, that neither the 127th nor the 128th section of the penal code (Act of March 31, 1860, P. L. 382) comprehends such a conspiracy as was laid in the indictment. This is certainly true of the 127th section, and for present purposes it may be conceded to be true of the 128th section. This, however, is not a conclusive reason for holding the indictment to be bad. If there were no statute upon the subject of criminal conspiracy, an indictment for such conspiracy as is here alleged would lie at common law. No implication of an intention on the part of the legislature to abrogate or supersede the common law as to all criminal conspiracies arises from legislation defining particular conspiracies and prescribing the penalty therefor. The principles enunciated in Com. v. McHale, 97 Pa. 407, fully sustain the first of these propositions, and Wilson v. Com., 96 Pa. 56, is authority for both of them. Speaking of the 128th section of the penal code, the court said: “An examination of this section shows that it is confined to conspiracies to cheat and defraud, just as the previous section (127) relates to conspiracies to indict. A conspiracy at common law is a much broader offense, and embraces cases where two or more persons combine, confederate and agree together to do an unlawful act, or to do a lawful act by the use of unlawful means. Section 128 of the code does not, nor was it intended to’interfere with the indictment and punishment of a common-law conspiracy.” See also Com. v. Stambaugh, 22 Pa. Superior Ct. 386; Com. v. Brown, 23 Pa. Superior Ct. 470.

It is urged that sec. 1 of the Act of April 29,1874, P. L. 115, which was passed to carry into effect sec. 31, art. Ill, of the constitution, provides specifically for attempted bribery, defines the offense, names it corrupt solicitation, declares it to be a misdemeanor, and fixes the penalty, and therefore sec. 183 of the penal code comes into operation and prevents any penalty being inflicted or anything being done agreeably to the common law in sueh case. It is to be observed, however, that the act of 1874 relates only to a “person or persons who shall directly or indirectly, by offer o.r promise of. money, office, employment, testimonial or other thing of value, or' who shall by threats or intimidations endeavor to influence,” etc. There is a plain and substantial distinction between an attempt to bribe and a conspiracy to bribe; for at common law no overt act was necessary to constitute the offense of conspiracy, and neither the act of 1874 nor any other act has changed the rule in Pennsylvania, at least so far as the particular kind of conspiracy under consideration is concerned: Collins v. Com., 3 S. & R. 220; Com. v. McKisson, 8 S. & R. 420; Wilson v. Com., 96 Pa. 56; Brown v. Com., 23 Pa. Superior Ct. 470. It has been repeatedly ruled that in order to render the offense complete there is no occasion that any act should be done, or that anyone should be aggrieved or defrauded in pursuance, or in consequence of the unlawful agreement:” Gordon, J., in Heine v. Com., 91 Pa. 145. The doctrine of the case of Com. v. Railing, 113 Pa. 37, does not rule the question before us. The point there decided was that the 87th section of the penal code took the crime therein specified, procuring miscarriage resulting in the death of the child or. woman, out of the class designated as murder, made it a felony of lesser grade and prescribed the punishment therefor. But here, as has been seen, all the essential elements of a complete offense- at common law may be proved without proof of the acts which constitute the statutory offense of corrupt solicitation. The thought is well expressed by the learned trial judge in the opinion overruling the motion for new trial as follows: “In this case, therefore, if Richardson combined with others to corruptly influence councilmen, and the verdict establishes that he did do so, he was guilty of conspiracy before he ever met Martin who was a member of council and to whom the commonwealth claims corrupt propositions were made. It was for that offense, namely, the combination and confederation, that defendant was tried and convicted.” Where a count in an indictment does not charge a statutory offense, yet, but for the words contrary to the form of the act of the •general assembly in such case made and provided, is a well-drawn count for a common-law offense, those words may be rejected as surplusage: Com. v. Kay, 14 Pa. Superior Ct. 376, and cases there cited. We conclude that the indictment and the- evidence were sufficient to sustain a conviction of common-law conspiracy; therefore the 1st, 15th, 16th and 17th assignments of error are overruled.

The matters complained of in the remaining assignments of error may be embraced under two general heads: first, the admission in evidence, in the presentation of the commonwealth’s case in chief, of a duly proved transcript, in longhand, of the official stenographic notes of the testimony given by the appellant, as a witness on behalf of the commonwealth, on the trial of an indictment against William A. Martin; second, permitting the district attorney upon the cross-examination of the appellant to read to him in the hearing of the jury certain portions of the transcript, and to interrogate him as to whether he had so testified on the trial of the Martin case. The objections made on the trial to these offers were that they were incompetent and irrelevant. The specific objection urged here is that the rulings contravened the provisions of sec. 32, art. Ill, of the constitution of this commonwealth, which so far as material here reads as follows: “Any person may be compelled to testify, in any lawful investigation or judicial proceeding against any person who may be charged with having committed the offense of bribery or corrupt solicitation, or practice of solicitation, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony.” It is claimed by the commonwealth’s counsel in opposition to this contention that no part of the former testimony was read to the jury except those parts which were embraced in the questions put to the appellant upon his cross-examination, and that these parts were not criminating. On the other hand, the recollection of counsel for appellant appears not to be in entire accord with this contention, for he asserts in his printed brief that the district attorney read the principal parts of the testimony in the presence and hearing of the jury, and commented on it in his argument to the jury. In the circumstances, we are compelled to consider the assignments of error in the light of the bill of exceptions exclusively. This shows that, after the district attorney had proved by the official stenographer the correctness of the transcript of the appellant’s testimony, he formally offered it “to be read to the jury,” it being marked exhibit No. 2, and that the objection to the offer was overruled. The fair interpretation of the bill of exceptions is that the transcript was admitted in evidence. The record does not show that it was subsequently withdrawn or struck out. It was part of the commonwealth’s evidence in chief which the appellant had to meet in the presentation of his testimony. For, even though it had not been actually read to the jury at the time the commonwealth rested, there was nothing to prevent it being referred to and commented on in the final argument. This condition of the record of the evidence had to be taken into consideration by the defendant in the presentation of his defense, and, for aught we know, may have influenced his course therein. We therefore conclude that the assignments cannot be overruled upon the ground that the testimony he gave in the Martin case was not used against him in the trial of his own case.

In general, proof of his voluntary admissions of relevant facts is competent against a person charged with a crime, and ordinarily such proof is not rendered incompetent by the mere fact that the voluntary admissions were made in the course of his testimony as a witness in another case: Williams v. Com., 29 Pa. 102; Com. v. Doughty, 139 Pa. 383; Com. v. House, 6 Pa. Superior Ct. 92; Com. v. Ensign, 40 Pa. Superior Ct. 157; 12 Cyc. of Law and Procedure, 474, 480. This still remains the general rule notwithstanding the section of the constitution under consideration. The question is whether this case is taken out of the general rule by that section. The first essential to an affirmative answer to that question is that the charge against the accused in the case in which the former testimony was given was bribery, corrupt solicitation or practice of solicitation, and it was suggested in the oral argument that this does not appear in the record. The record furnishes very slight evidence of that essential, it is true, although we do find in the caption to the stenographer’s transcript as printed in the appellant’s paper-book the following: “Testimony of Charles R. Richardson, defendant in this case, given in the case of Commonwealth v. William A. Martin (bribery) at No. 586, Dec. Sessions 1906,” etc. It could be argued with much force that the best evidence of the nature of the charge in the Martin case would be the indictment itself. But in view of the foregoing reference to the charge in the caption of the transcript we are not disposed to put our decision upon the ground that it does not appear with technical certainty that the testimony was given in one of the classes of cases specified in sec. 32, art. Ill; particularly, as the words “offense of bribery” employed in that section have been construed to mean all bribery, whether bribery at common law or under the constitution itself, or any kind of statutory bribery (Com. v. Bell, 145 Pa. 374), and as it is virtually conceded by counsel for the commonwealth in his history of the case that the indictment against Martin was for accepting a bribe as councilman.

The next question to be considered is, Whether the mere fact that testimony was given by a witness in a judicial proceeding against a person charged with the offense of bribery is a conclusive bar against the use of that testimony against the witness in a subsequent judicial proceeding against him? After deliberate consideration of the wording of the constitutional provision, in the light of the mischief to be remedied and the object to be accomplished by it, we are of opinion that it is not. To be more explicit, to prevent the use of the testimony afterwards in a judicial proceeding against the witness, it must have been given under some sort of compulsion. The words are not “any testimony’’that a witness may give in such a proceeding shall not be used against him, but “such testimony.” It is argued with much force that the purpose of the constitutional provision was not to compel testimony of a noncriminating character or tendency — for that could always be done — but to compel testimony that might conceivably criminate or tend to criminate, and that the words “such testimony” properly may and should be construed to relate to that kind of testimony; further, that to prevent the use of the testimony afterwards against the witness his claim of the privilege to withhold it must have been made and overruled by the judge. Be that as it may, we think there can be no escape from the conclusion that the words “such testimony” relate to testimony that has been compelled.

. The remaining inquiry is, whether the testimony given by the witness in the Martin case was of that character. As in the consideration of the question as to the use that was made of the testimony we have felt constrained to confine our attention strictly to what the record shows, so we feel constrained to do in the consideration of the present question. The argument of appellant’s counsel is based, to some extent, on the assumption that the appellant appeared and testified in the Martin case in obedience to a subpoena. It is argued that this brings the case within the principle of People v. Sharp, 107 N. Y. 427. The commonwealth’s counsel does not concede this fact, and insists that it does not appear anywhere in the record. It is true the opinion of the learned judge overruling the motion in arrest of judgment assumes it to be a fact, but it is important to notice that he did not try the Martin case in which the evidence was given. A careful examination of the record, including the official report of the evidence given on the trial of the appellant as well as the transcript of the testimony given by him in the Martin case, fails to show that he appeared and testified in that case in obedience to a subpoena, or under the compulsion of threats or any compulsion whatever. Again, the transcript of the evidence he gave fails to show that he demurred to answering any question that was put to him upon the ground'that the answer might criminate him or upon any ground whatever. It gives no indication, and there is no extraneous evidence tending to show that he did not testify freely and voluntarily, or that he became a witness under compulsion of law or of legal process. The extraneous evidence as to his willingness to testify in the various proceedings against Martin growing out of this same transaction tends to rebut any inference that he was compelled to testify in the bribery case. But apart from this consideration, we conclude from the testimony relating exclusively to the circumstances under which he testified in the trial of the indictment against Martin above referred to, that the case is not excepted from the general rule above stated by sec. 32, art. Ill, of the constitution.

The judgment is affirmed and the record is remitted to the court of quarter sessions of Allegheny county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant forthwith appear in that court and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.