author: Henderson, J.,

text:
    Fry’s Estate.

      Keller H. Gilbert, for exceptions.

      MacCoy, Evans, Hutchinson & Lends, contra.
    Nov. 28, 1930.
   Henderson, J.,

A careful study of the record and briefs of counsel leads us to the conclusion that the presiding judge was correct in his conclusions and for the reasons given by him.

There is no warrant in law for making an appraisement with a suspended claim, however convenient the appraiser may find such practice. The judgment held by the estate appears to be worthless, and, if such is the case, should have been deducted, as also the fee of $500, to find the net estate, of' which one-third passed to John D. Vickers.

The tax will be ascertained as follows:

Balance as per account............................ $183,846.06
Less worthless judgment and interest...... $66,752.25
Less counsel fee.......................... 500.00
- 67,252.25
$116,593.81
One-third taxable.................................. 38,864.60

on which tax at 5 per cent., $1943.23, is awarded to the Commonwealth, plus interest at 6 per cent per annum from April 15, 1928.

The exceptions are dismissed and the record is remitted to the register.

Lamorelle, P. J., did not sit.


source: Caselaw Access Project

author: Appel, P. J.,

license: Public Domain

text:
    McNaughton’s Estate.

      William J. Eberly, for petitioner.
    May 8, 1930.
   Appel, P. J.,

This is a rule to show cause why the adjudication filed in the above estate should not be opened for the purpose of presenting a claim of Dr. G. B. Weaver for $107 for medical services rendered the decedent. In effect it is a petition of review.

James McNaughton died testate July 2, 1926. He gave all his estate to his widow, Laura McNaughton, and named her executrix. Her account was adjudicated May 12, 1927. No exceptions being filed, it became absolutely confirmed. Laura McNaughton (later intermarried with Charles W. Lintner) died May 28, 1927, leaving a last will, in which she gave all her estate to the said Charles W. Lintner and made him executor. His account was adjudicated May 10, 1928. On exceptions, a definitive decree was filed Oct. 15, 1928. On appeal to the Supreme Court on a point foreign to the present issue, the lower court was affirmed July 1, 1929 [297 Pa. 428].

A mere recital of the docket entries in this estate would seem to be a sufficient answer to petitioner’s application. As indicated in his petition, there was a credit taken in the account of Laura McNaughton, executrix of James McNaughton, deceased, for $107 paid G. B. Weaver, M. D., Feb. 15, 1927. This, it seems, was never paid. Petitioner trusted the executrix to pay him and thus permitted the adjudication to become absolutely confirmed. He could have protected himself by filing exceptions to the item in the account. This he failed to do. He not only permitted the adjudication to become confirmed and the money paid out in this estate, but he permitted the final settlement of the estate of Laura McNaughton (Lintner), deceased, who was executrix of the decedent and liable to the petitioner for the payment of his claim, the same being a credit in her account. As it is, her estate has been finally adjudicated and distributed. It is clear petitioner has lost his claim through his own neglect. As both estates have been distributed, it would be inequitable and unjust to open the adjudication in this ease. As said in the very recent case of Wallace’s Estate, 299 Pa. 333: “The question of laches does not depend, as does the statute of limitations, upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the party delaying is chargeable with want of due diligence in failing to institute or prosecute his proceeding.” In the instant case petitioner relied on the vain promise of the executrix to pay him, and slept on his rights. It is now too late to help him.

Section 48 of the Fiduciaries Act of 1917 does not apply because the balance in the account in this estate has actually been paid and discharged by the executrix.

The petition is dismissed, at the cost of the petitioner.

From George Eoss Bshleman, Lancaster, Pa.


author: Cummins, J.,

text:
    Kolodychak v. Donora School District.

      Paul N. Barna, for plaintiffs; George O. Frazier, for defendant.
    April 28, 1930.
   Cummins, J.,

In plaintiffs’ bill it is substantially alleged that defendant school district seeks by a condemnation proceeding to appropriate for street or alley purposes certain real estate belonging to plaintiffs, and plaintiffs pray for an injunction to restrain defendant school district from appropriating this land for that purpose. The case is before the court in banc upon defendant’s preliminary objections to the bill under Equity Rule 48, whereby the question is raised as to whether plaintiff’s bill sets forth a cause of action entitling plaintiffs to equitable relief.

Preliminary objections of this character,, under Equity Rules 48 and 49, were intended, and must be construed in like manner, as similar objections to a plaintiff’s statement under the provisions of the Practice Act of May 14, 1915, P. L. 483, in which case, in passing upon defendant’s right to a summary judgment on the pleadings, “the question to be decided ... is not whether the statement [or bill] is so clear, in both form and specification, as to entitle plaintiff, without amendment, to proceed to trial, but whether, upon the facts averred, it shows as a ‘question of law’ that plaintiff is not entitled to recover:” Gray v. Phila. & Reading Coal & Iron Co. et al., 286 Pa. 11, 14, 15.

We know of no legislative enactment vesting in schoql districts the authority to condemn or appropriate land for street or alley purposes, and none has been called to our attention. It would, therefore, appear that if a school district desired to have laid out a private or public road, as such, for the benefit of school property, it would be necessary for it to proceed in the usual manner.

An attempted appropriation without authority would not be an appropriation, and an entry thereunder would be but a trespass; and so, likewise, an appropriation without a bona fide intent that the land taken should be for an authorized use, followed by an effort within a reasonable time to carry out the declared purpose, would not constitute an appropriation: Palmer Water Co. v. Lehighton Water Supply Co., 280 Pa. 492, 500.

The proper remedy to challenge or test a condemnor’s authority or power to condemn is by injunction: Alexander v. Coal Co., 254 Pa. 1; Mountz v. Railroad Co., 265 Pa. 67; Irvin et al. v. Curwensville Borough, 129 Pa. 74; 2 Lewis on Eminent Domain (2nd ed.), 1351; 4 McQuillen on Municipal Corporations (2nd ed.), 466.

The basic act of a condemnation by a municipality consists in the corporate act of adopting the resolution or passing the ordinance purporting to effect the appropriation, the other acts in connection therewith being generally but incidental thereto and of a ministerial nature: Chelten Trust Co. v. Blankenburg, 241 Pa. 394, 396, 397; Palmer Water Co. v. Lehighton Water Supply Co., supra, 501.

Counsel for defendant school district contends that the resolution adopted by the school board appropriating the land in question expressly declared said appropriation to be for playground purposes. The presumption is that the school board acted in good faith as to the declared purpose of the appropriation, whatever it may have been: Pioneer Coal Co. v. Cherrytree & Dixonville R. R. Co., 272 Pa. 43, 51. The laying out of walks and driveways through or over a school playground or campus would not constitute such walks or driveways, private streets or alleys within the general accepted legal meaning of these terms; they would still be but integral parts of the playground or campus and independent private driveways. In fact, even where land is condemned for a lawful purpose, the fact that a part of it is used for a purpose incidental to the lawful purpose will not destroy the right acquired or prevent the use for such incidental purpose: Laird v. Pittsburgh, 205 Pa. 1. These, however, are all matters of evidence; they are not disclosed by the pleadings. For the present purpose we are limited to a consideration alone of the averments contained in the bill. Therein it is, in substance, alleged that this appropriation was in fact made for street and alley purposes; and, standing alone, this is sufficient to prevent summary judgment on the pleadings. This is all we now decide.

And now, April 28, 1930, preliminary objections to plaintiff’s bill dismissed and defendant is given ten days within which to answer, under penalty, upon failure so to do, of having the bill taken pro confesso.

' Prom Harry D. Hamilton, Washington, Pa.


author: Lamberton, J.,

text:
    MacDonald v. Metropolitan Life Insurance Company.

      Algernon R. Clapp, for plaintiff; Arthur G. Dickson, for defendant.
    Feb. 7, 1931.
   Lamberton, J.,

The Metropolitan Life Insurance Company-issued to Thomas W. MacDonald a policy of insurance, by which, in consideration of the payment of a premium of $9.90, the company agreed, among other things, to pay to Elizabeth M. MacDonald, wife of the insured, the sum of $5000 in case of the death of the insured by accident within a period of six months from July 18, 1929. The policy in question, in clause 11, provided that it might be renewed, with the consent of the company, upon each successive expiration, for further periods of six months each, upon the payment of the same premium; and provided further that there should be a renewal grace of thirty-one days within which said renewal might be made, during which period the insurance should continue in force, provided such payment should be made within the period of grace.

In paragraph 3, under the head “Standard Provisions,” there was a further stipulation that if default should be made in the payment of the agreed premium, the subsequent acceptance of the premium by the company should “reinstate” the policy, but only to cover loss resulting from accidental injury thereafter sustained.

The original term of the policy expired on Jan. 18, 1930, and no renewal premium was paid within thirty-one days thereafter. On Feb. 25, 1930, however, MacDonald made an application to the company for reinstatement of the policy and paid the premium of $9.90. On March 1, 1930, the defendant formally acknowledged receipt of the premium and executed and delivered to MacDonald its receipt, providing that if the premium payment was made before the date due, or within thirty-one days thereafter, the policy should be continued in force, subject to all its terms and conditions, from noon of the date when the premium was due for the further period of six months. The premium receipt further provided, however, as follows: “Otherwise no insurance shall be in force subsequent to the ‘date due,’ unless and until such payment shall be made.” The premium receipt stated the due date of the premium to be Jan. 18, 1930.

MacDonald, on Aug. 24, 1930, sustained bodily injuries in an accidental automobile collision, which injuries resulted in his death on the same day. Suit was brought by his widow, Elizabeth M. MacDonald, the beneficiary in the policy, to recover the sum of $5000.

All of the above facts are admitted by the affidavit of defense; but the defendant contests recovery on the ground that acceptance of the premium continued the old contract in effect for a term of six months commencing Jan. 18,1930, the date on which the original term expired, and that, therefore, the new term expired on July 18, 1930, and the policy was not in effect on the date of the accident.

The plaintiff contends that the reinstatement of the policy constituted a new contract of insurance, dating from the time when the premium was accepted by the company, namely, March 1,1930, and that, therefore, the new six months term extended until Sept. 1, 1930.

A rule was taken for judgment for want of a sufficient affidavit of defense.

It appears that the sole question at issue here is one of law, namely, the construction of written documents, and that there would be nothing, in any event, to submit to a jury. Nowhere in the application, the policy or the premium receipt does it appear definitely when the new term should start, under the circumstances of this case; but defendant contends that the use of the word “reinstate” lends itself to no interpretation other than that the new term commenced immediately upon the termination of the old.

If the contention of defendant is sound, then MacDonald, for the payment of the six months’ premium, received insurance for only four months and eighteen days. Likewise, if the contention of defendant is sound, the payment of the premium five months after the expiration of the original term would have given MacDonald insurance for one month only, and the payment of the premium six months after the expiration of the original term would have given him no insurance at all.

It is admitted by defendant that the premiums on such policies did not increase with age, but remained constant. MacDonald could, therefore, have taken out a new policy, covering him for a full period of six months, by payment of the same premium.

The words “reinstate” and “reinstatement” are quite common in insurance contracts, and have been interpreted by the courts. Defendant is by no means correct in asserting that they lend themselves only to the interpretation for which it contends.

In the ease of International Life Insurance Co. v. Mowbray, 22 Fed. Repr. (2nd) 952, decided by the United States Circuit Court of Appeals for the 7th Circuit, in 1927, the facts were practically on all fours with those in the instant ease In the cited case the policy had lapsed, and there was a renewal premium, which the insured could not require the company to accept, but which it did accept. The court said: "The narrow and precise question determinative of the present controversy turns upon the effect of the reinstatement of insurance by the Illinois company after the assured had lapsed the Iowa contract. . . . Whether the second contract was issued in pursuance of, and dependent for its existence upon, the express provision of the original contract must be determined by an examination of the policy as well as the facts showing the circumstances under which the reinsurance occurred. In other words, did the assured have an unqualified right to be reinstated, or was such reinsurance or reinstatement the result of a new negotiation or agreement.”

The court then examined the contract and determined that the insured did not have an unqualified right to be reinstated, but that such reinstatement was a matter of grace on the part of the company. Having so determined, the court held that the reinstatement of the policy constituted a new contract of insurance.

To the same effect are the cases of Schmitt v. Massachusetts Protective Ass’n, 32 Fed. Repr. (2nd) 61, and Equitable Life Assur. Society v. McElroy, 83 Fed. Repr. 631; and in 32 Corpus Juris, 1357, appears the following: “Where a policy provides for reinstatement, but only as to losses subsequently occurring, the company, upon reinstatement of the policy, is not liable for a loss occurring while it was suspended. In such case, no part of the premium paid on reinstatement will be applied to the period during which the policy was not in force, unless the agreement of the parties so provides.”

It is clear from the above citations that the defendant is not correct in arguing that the word “reinstatement” necessarily means a continuation of the old policy and of the old dates. The word reinstatement was used in the cases above cited, and yet the insurance contracts reinstated were held to be new contracts.

Applying to the case at bar the test set forth in the above cases, we find that the reinstatement of the policy was not a matter of right, but that it required the express approval of the insurance company. It constituted a new policy of insurance for a term of six months, commencing with the date when the company became liable by acceptance of the premium, namely, March 1, 1930. The reinstated policy was, therefore, in force at the date of MacDonald’s death on Aug. 24, 1930.

And now, Feb. 7, 1931, the rule for judgment for want of a sufficient affidavit of defense is made absolute.


author: Martin, P. J.,

text:
    Connor v. Mitten Men & Management Bank & Trust Co. et al.

      J. J. Cahill and W. W. Smithers, for plaintiff.

      Ballard, Spahr, Andrews & Ingersoll, for defendant.

      J. S. Sinclair, Maurice W. Sloan and Saul, Ewing, Remick & Saul, for additional defendants.
    Oct. 27, 1930.
   Martin, P. J.,

Plaintiff instituted suit to recover from the Mitten Men and Management Bank and Trust Company $4500, alleged to be on deposit to her credit.

The defendant, Mitten Men and Management Bank and Trust Company, issued a writ of scire facias to add the Real Estate-Land Title and Trust Company as an additional defendant, under the provisions of the Act of April 10, 1929; P. L. 479'. It is averred in the writ that $3500 of money deposited by the plaintiff has been paid upon a check drawn to the order of the plaintiff and endorsed by the Real Estate-Land Title and Trust Company.

After the scire facias had issued, returned and a rule for a more specific scire facias made absolute, a stipulation, signed by counsel, was filed of record, agreeing that the scire facias should be amended and made more specific by adding a paragraph stating that on Jan. 22, 1927, the Brotherhood of Locomotive Engineers Title and Trust Company, the predecessor of the Mitten Bank, issued a check for $3500, payable to the order of plaintiff, which check was apparently endorsed by Ellen Connor, the plaintiff, making her mark in the presence of Prank R. Loney as a witness, and was subsequently endorsed by divers other persons and corporations, including the Real Estate Title Insurance and Trust Company, the predecessor of the Real Estate-Land Title and Trust Company; that the endorsement of the Real Estate Title Insurance and Trust Company contained the words “Previous Endorsements Guaranteed;” that the endorsement of plaintiff upon the check shows, if genuine, that plaintiff received $3500, which was a component part of the balance of $4500 for which she has brought suit; that the check was presented to the Brotherhood of Locomotive Engineers Title and Trust Company and paid, relying upon the several guaranties, including that of the Real Estate Title Insurance and Trust Company; that if plaintiff is successful in proving that she did not endorse the check, the Mitten Men and Management Bank and Trust Company would be liable to plaintiff in the sum of $3500, and the Real Estate-Land Title and Trust Company would become severally liable to the Mitten Bank by virtue of its guaranty of the prior endorsements.

An affidavit of defense raising questions of law was filed by the Real Estate-Land Title and Trust Company to the scire facias, suggesting that the Act of April 10, 1929, does not authorize a writ of scire facias against an additional defendant under the facts and circumstances of this case; that the Real Estate-Land Title and Trust Company is not liable to Mitten Men and Management Bank and Trust Company for the cause of action declared on, or jointly or severally liable over to the Mitten Men and Management Bank and Trust Company; that the cause of action between Ellen Connor and Mitten Men and Management Bank and Trust Company is not the same cause of action set forth in the suit against the Real Estate-Land Title and Trust Company in the writ of scire facias; that the facts set forth in the writ of sdre facias and other pleadings show that the original defendant is not entitled to recover from the Real Estate-Land Title and Trust Company for the reason that the company had no notice or knowledge of the alleged forged endorsement within a reasonable time or within the time required by law.

It is urged on behalf of the Real Estate-Land Title and Trust Company that the endorsement limited the liability of the company to guaranteeing the genuineness of previous endorsements, and when Ellen Connor alleged her endorsement to be a forgery, to bind the Real Estate-Land Title and Trust Company, it was necessary that notice be promptly given to the endorser.

The endorsement by the Real Estate-Land Title and Trust Company was more than a guarantee of genuineness of previous endorsements. The endorsement created a suretyship to insure the payment of the check. The endorser was not entitled to notice of default, and could not compel prosecution to exhaustion of the previous endorsers: Miners State Bank v. Auksztokalnis, 283 Pa. 18.

In Bloomfield Trust Co. v. Trojanowski, 298 Pa. 61, 63, it was said: “The allegation that appellant did not guarantee payment of the note is of no avail; it is a conclusion of law, which does not deny the fact that she signed the endorsement. The contract thus created operates as one of suretyship, since there was no statement to the contrary (Act of July 24, 1913, P. L. 971), and appellant’s liability on the note is a primary one.”

The check for $3500 paid by the Brotherhood of Locomotive Engineers Title and Trust Company, predecessor of Mitten Men and Management Bank and Trust Company, from the money in the account of plaintiff was paid in reliance upon the endorsement of the Real Estate Title Insurance and Trust Company, one of the sureties on the check. If the endorsement of the payee is proved to have been forged, the principal defendant, Mitten Men and Management Bank and Trust Company, will be compelled to pay plaintiff the entire amount of her claim, including the $3500 already paid. If this liability is incurred, the proceeding under the Act of April 10, 1929, P. L. 479, is proper to obtain relief from an endorser that was surety for the payment of the cheek. As a surety the endorser was not entitled to notice that the payee in the check claimed that her endorsement was forged.

And now, Oct. 27, 1930, the questions of law raised by the affidavit of defense are not sustained. The additional defendant, Real Estate-Land Title and Trust Company, is allowed fifteen days to file an affidavit of defense to the averments of fact in the statement of claim recited in the writ of scire facias.


author: Gordon, Jr., J.,

text:
    Morrow Seed Company, Ltd., v. Rowe.

      R. T. McSorley, for plaintiff; S'. W. Cooper, for defendant.
    Nov. 28, 1930.
   Gordon, Jr., J.,

This case is before us upon an affidavit of defense raising a question of law. The plaintiff brought suit against the defendant in the Supreme Court of Ontario, Canada, and recovered a judgment in that case. It then sued the defendant here upon the judgment secured in Canada. The statement of claim sets forth the recovery of the judgment in Canada and incorporates in it a copy of the record of the Canadian court. The record discloses that service of process in the Canadian case was made by service of a notice, under a rule of that court, upon the defendant in the City of Philadelphia. The affidavit of defense raises the question as to whether the judgment secured in Canada is valid and can be sued upon in this jurisdiction. Although judgments obtained in foreign jurisdictions may be sued upon here, if the foreign court had jurisdiction of the defendant: Messier v. Amery, 1 Yeates, 533; it is well settled that the processes of a court have no effect beyond its territorial jurisdiction and that process issued in one sovereignty and served in another does not in itself subject the person served to the jurisdiction of the first sovereignty, unless he recognizes the process and appears in person or by counsel in the case: 34 Corpus Juris, 1168, § 1656, and note 69 [d], page 1169.

To avoid this rule, the defendant relies upon the case of Moore v. Phillips, 154 Pa. 204. In that case suit was brought here upon a judgment recovered in London against a defendant who was served in this country with process issued out of the British court. The affidavit of defense filed in that case was held insufficient to prevent judgment, not because the service in the London case subjected the defendant to the jurisdiction of the British court, but because an appearance for the defendant was entered in the London case by a solicitor, and the affidavit of defense merely denied that the appearance was entered with the knowledge of the defendant. The Supreme Court held that, as the defendant had not averred that the appearance was entered without his authority and consent, it was insufficient merely to deny knowledge of the entry of appearance by the British solicitor, for the defendant might have authorized the solicitor to appear for him but have had no knowledge of his having done so. That case is, therefore, distinguishable from the one before us..

The affidavit of defense raising questions of law is, therefore, adjudged sufficient, and judgment is entered in favor of the defendant.


author: Gest, J.,

text:
    Hover’s Estate.

      Michael A. Foley, for exceptant; George Scott Stewart, Jr., contra.
    Nov. 28, 1930.
   Gest, J.,

There can be no doubt that, prior to the Act of June 29, 1923, P. L. 914, the next of kin to whom the remainder estate is directed to be distributed should be ascertained as of the death of the testator and not as of the death of the life tenant, which is the period of distribution. This is a canon of testamentary construction, which applies unless the testator expressly or by necessary implication clearly designates the contrary intention. This contrary intention cannot be inferred from the fact, which is purely accidental, that the result may be to divert the estate to persons not belonging to the family of the testator, as will be the case here, in part at least, if those persons should be ascertained through the estate of Adaline, the daughter of the testatrix and her only next of kin. Such considerations should not influence our legal judgment: Bentley’s Estate (No. 1), 30 Dist. R. 67; and the mere fact that the life tenant is herself the only next of kin of the testatrix is likewise irrelevant in applying this canon of construction: Stewart’s Estate, 147 Pa. 383; Snyder’s Estate, 25 Dist. R. 207.

But the Auditing Judge has held that there is sufficient in this will and its codicils to show clearly that the ordinary rule should not apply, and in this we concur. When the will and codicils were written, the latest bearing date Jan. 5, 1907, the testatrix had a sister living, Debora Ridgway, unmarried and childless, and at least two nephews and a niece, Frank W. Whitcraft, David Whitcraft and Elizabeth Ridgway, besides, as it would appear, certain grandnephews and grandnieces. In her first codicil she directed that, in the distribution of her estate after her daughter’s death, David Whitcraft and Lizzie Richardson should receive nothing and that Frank Whitcraft should receive not more than $500, adding, perhaps significantly, “the balance of my estate to be divided as in my within will provided.” And in her second codicil she provided that, “in any distribution” which may be made under her will, Debora Ridgway “shall not participate unless she shall be a widow at the time of such distribution,” which may fairly be interpreted to mean that, “in any distribution” which may be made under her will, Debora Ridgway shall participate if she is a widow “at the time of said distribution.”

This alone may not be controlling, but the testatrix added, what seems to us to be most important, that, “in any such distribution, Mary Sabey shall receive an equal share along with my nephews and nieces as though she were lawfully my niece.” In our opinion, the will and codicil show that the testatrix contemplated that her estate should be distributed among her collateral relatives and not to the estate of her daughter, at whose decease the estate should be distributed, for we must remember that Mary Sabey was not a niece in fact, but included as a legatee among nephews and nieces. The testatrix evidently intended that Mary Sabey should at the distribution take a share of her estate and not being entitled under the intestate laws, she can only take by testamentary inclusion among those who were, namely, the nephews and nieces, and if these are the persons who take under the intestate laws, it follows that the distribution must be made in accordance with those laws at the death of the life tenant, whose estate is thereby excluded. This result is entirely consistent with Snyder’s Estate, 25 Dist. R. 207, where the exclusion of certain cousins nommatim from participation was held as intended to apply if the class of cousins should at the time of the testator’s death constitute his next of kin. This affords no clear indication of testamentary intention, that the cousins should necessarily constitute the class of distributees. Nor does our decision in Hausman’s Estate, 7 D. & C. 49, apply, where a stepbrother was by a will included in the distribution among the testator’s heirs. There appears no reason why this stepbrother should not take along with the full brothers and sisters, and his express inclusion appears to be ex majori cautela, and as it was said by the Auditing Judge in that case: “I think the testator did not mean to bestow upon brothers and sisters and their issue the character of heirs in every event, but merely to treat William J. Gruhler as a blood brother, entitled to take if brothers were within the class that was to take, but not to displace a superior class of heirs.” In the present case, however, the inclusion of Mary Sabey among the distributees, who was no kin of the testatrix, and, evidently, as a favored legatee, was intended to take in any event, shows that the class in which she was placed should also take in any event.

The exceptions are dismissed and the adjudication confirmed absolutely.


author: Sinkler, J.,

text:
    Coley’s Estate.

      John M. Dervin, for exceptions; Sadie T. M. Alexander, contra.
    Nov. 28, 1930.
   Sinkler, J.,

There is little that can be added to the carefully considered adjudication filed in this case. As the learned Auditing Judge points out, the terms “war risk insurance” and “compensation” are used interchangeably, and in the account filed in this case all debits are designated as war risk insurance, although certain items appear to be compensation. The claim made by the Government at the audit is considered as an application for a refund of war risk insurance paid under a mistake of fact. Neither the Government nor the guardian has offered in evidence the policy of insurance issued by the United States Government to Freeman Coley, alleged father of the minor. Whether the policy was surrendered to the Government when application was made to it for the payment of the benefits therein stipulated, or other disposition has been made of it, it is not a part of the record in the present case. The policies of war risk insurance issued to enlisted men and officers serving in the United States Army during the World War designated the beneficiary to whom the insurance moneys were to be paid. The United States statute under which the war risk insurance was issued limits those who may be named as beneficiaries to persons bearing specified relationships to the insured. In this class are included children, and the act in another section defines the word “child.”

Action has been taken by the bureau upon the application made in behalf of Samuel Coley, and payments have been made pursuant to such action. It, therefore, seems reasonably sure that he was the beneficiary named in the policy of insurance in the present case.

In dismissing the exceptions filed to the adjudication of the President Judge, we emphasize two of the reasons assigned by him.

1. The fact that no notice was received by the guardian of the rehearing before the United States Veterans Bureau when the conclusion was reached that the beneficiary was not the child of Freeman Coley. There was no evidence in the record that notice was sent to the guardian, although the bureau would have had no difficulty in serving such notice and was well aware of the whereabouts of the guardian. The guardian was, therefore, deprived of the opportunity to cross-examine the witnesses produced before the bureau and to offer evidence in support of the claim of the guardian. A conclusion reached in an ex parte proceeding cannot be regarded as based upon a fair consideration of all the evidence in the case, and may be justly called arbitrary, and, therefore, under the decision cited, subject to review by the court.

2. The position of counsel for the Government seems incongruous. He argues that the decision of the Veterans Bureau is final, yet the letter of general counsel for the United States Veterans Bureau, addressed to the Assistant Director in Charge of Adjudication Service, dated July 18, 1929, which directs that all payments to the guardian should be stopped, further directs that the guardian be advised of the ruling in order that he may take such action to protect the rights of the child as he may deem advisable One may well ask what action the guardian could take respecting the final decision, and one, therefore, which would not be subject to appeal when reviewed. This, in our judgment, upholds the position taken by the learned President Judge, to wit, that the finding of the Veterans Bureau is not, under all circumstances, exempt from appeal or review.

The evidence taken at the hearing before the President Judge fully supports his finding, which is to the effect that the minor is in fact the son of Freeman Coley, and that the claim of the Government to refund the payments made to the guardian should be dismissed.

The exceptions are dismissed and the adjudication confirmed absolutely.


author: Van Dusen, J.,

text:
    Deagler’s Estate.

      Maurice S. Levy, for petitioner; Harry M. McCaughey, for respondent.
    Nov. 28, 1930.
   Van Dusen, J.,

The original petition asked for a decree directing the conveyance of a certain property to petitioner by the executor of decedent pursuant to an oral agreement whereby decedent agreed to transfer title to the property to her in consideration of services. After answer and replication this was referred to a master, who has taken testimony and filed a report recommending dismissal of the petition. Exceptions were allowed nunc pro tunc and the matter was referred back to the master.

Now the petitioner asks leave to amend by averring an oral agreement whereby the decedent agreed to make a will transferring the property in consideration of future services.

The amendment asked is not so radically at variance with the original cause of action as to move us to refuse the request; but it comes so late in the day that we think the petitioner should bear the cost of further hearings before the master in the first instance; and, we, therefore, enter the following decree:

And now, Nov. 28, 1930, the prayer of the petition of Minerva B. Fellman filed Sept. 17, 1930, for leave to amend her petition is granted, and the amendment prayed for is allowed. Petitioner and respondents have leave to introduce further evidence and argument; but the cost of proceedings before the master after this date, including his fee and stenographic service, shall be paid in the first instance by the petitioner, who shall deposit $250 with the clerk of the court or file a bond with approved surety in that sum as security for the same within thirty days; the ultimate liability as between the parties to await final decree. If said deposit is not made or bond filed within the time stated, the clerk shall mark said petition of Sept. 17, 1930, dismissed, upon the prsecipe of counsel for respondents.

Lamorelle, P. J., did not sit.


author: Pox, J.

text:
    Cook et al. v. The Pennsylvania Power and Light Company.

      Oscar G. Wickersham, for plaintiffs.

      Snyder, Miller & Hull, for defendant.
   Pox, J.

We have before us preliminary objections to the bill of complaint filed in the above stated case.

The bill of complaint, after setting forth the usual matter of residences of the parties, the purposes and location of the defendant, to wit, that it is engaged in business as a power company generating electricity and operating a line or lines of wires for current transmission strung upon poles along Hudson, Sycamore and , South Eighteenth Streets in the City of Harrisburg, in front of the properties and residences of plaintiffs, avers, in substance, as follows, viz., in paragraph 5, that the defendant placed its wires on its poles without any insulation or other device for the safety of persons residing on the streets aforesaid, including the petitioners; in paragraph 6, that the defendant advised the plaintiffs when it erected its poles that not more than 1100 volts of electricity would be transmitted over each of its said six wires, that no danger would arise therefrom, and, therefore, the plaintiffs delayed their proceedings to enjoin the defendant; in paragraph 7, that there has been transmitted 11,000 volts of electricity over each of said wires instead of 1100; in paragraph 8, that in the stringing of its said wires and cables the defendant placed the same above and across wires of other companies, to wit, telephone and light, running across and leading into the homes of the plaintiffs and others of the neighborhood; that because of the wires and cables of the defendant not being insulated and running as aforesaid over wires of other public service companies, they are highly dangerous to human life and the property of plaintiffs and to others occupying said street, so that there is great and imminent danger to the lives and properties of the plaintiffs ; in the 9th paragraph, that the plaintiffs are owners and users of radio receiving sets, and since, and continuously since, said defendant turned on its power as aforesaid, and as the result thereof, they have been greatly hindered, annoyed and prevented from the proper use of their radio receiving sets, in that, although previously thereto they were accustomed to have and enjoy uninterrupted radio reception from numerous broadcasting stations operating in different and remote cities of the United States, since the date aforesaid, they have been prevented from enjoying said sets and are now able to receive the programs of local broadcasting stations only.

The prayer of the bill in substance is, that an injunction be granted, restraining and prohibiting the Pennsylvania Power and Light Company, defendant, from the further transmission of electric current over its wires as now existing, from transmitting any current of electricity over its uninsulated wires in sufficient volume to amount to a nuisance to the plaintiffs in the use of their radio receiving sets; that a mandatory injunction be granted, requiring the defendant to remove its poles and wires from the streets mentioned in the bill, and for general relief.

The preliminary objections to the bill are as follows:

“1. Upon the facts averred in the bill of complaint the plaintiffs have a full, complete and adequate remedy at law which is specifically provided by the Public Service Company Law, approved July 26, 1913, P. L. 1374.

“2. The defendant should not be required to answer the facts averred in the plaintiff’s bill of complaint, for the reason that the defendant has a full and complete defense to the plaintiffs’ claim in this court, which does not require the production of evidence to sustain it, to wit, that this court is without jurisdiction to hear and determine the cause of action set out in said bill of complaint.”

With respect to paragraphs 5, 6, 7 and 8 of the bill, we think the matters complained of are within the jurisdiction of the Public Service Act of July 26, 1913, P. L. 1374. Article n, section 1 (a), (c) and (t), and article v, section 2, are applicable to paragraph 5. Article V, section 1, is applicable to paragraphs 6 and 7 of the bill; article ill, section 5, and article V, sections 2 and 13, are applicable to paragraph 8 of the bill. Article II, section 1, provides that it shall be the duty of every public service company to furnish and maintain such service, including facilities, as shall in all respects be just, reasonably adequate and practically sufficient for the accommodation and safety of its patrons, employees and the public, and in conformity with such reasonable regulations or orders as may be made by the commission. In article V, section 1, relating to the powers and duties of the commission, it is provided that the commission shall have ■ general administrative power and authority to inquire into and regulate the service of all public service companies; and in section 2: “Whenever the commission shall determine, after hearing had upon its own motion, or upon complaint, as hereinafter provided, that the service, facilities, rules, regulations, practices or classifications of any public service company in respect to, or in connection with, or. employed by, or in the performance of, its public duties within this Commonwealth, are unsafe, inadequate, insufficient, unjust or unreasonable, the commission shall determine and specify by an order in writing, to be made and filed as hereinafter provided, and to be served as hereinafter provided upon every public service company to be affected thereby, the just, reasonable, safe, adequate and sufficient service, facilities, rules, regulations or practices thereafter to be put in force, observed, rendered, used or furnished in the performance of its public duties by said public service company or companies, and thereupon it shall be the duty of every public service company affected by said order to observe and obey said order and all and every the mandates and requirements thereof.”

Section 13 provides in substance that the commission may, after hearing upon its own motion or complaint, establish such standards of facilities and service of public service companies as shall be reasonably necessary for the safety, accommodation or convenience of its patrons, employees or the public.

In the case of Fogelsville & T. Elec. Co. v. Pennsylvania P. & L. Co., 271 Pa. 237, the Supreme Court, inter alia,, at page 240, said: “But the legislature has the power to determine who shall promulgate and enforce its declared public policy, and when an agency of the government is selected or created for that purpose, no other body, judicial, executive or municipal, can step in and by decree, order, ordinance or otherwise, actively enforce the policy oído other acts in relation thereto, except, possibly, to sustain the legislatively created or designated body. By act of assembly, the Public Service Commission was the designated government agency to enforce its declared public policy, whether that policy originated by statute or was created by the commission. It is an arm of the state government, created for the benefit of the people, as well as the utilities it in part controls. There has been placed under the regulation, supervision and control of the commission, generally, all matters relating to rights, facilities, service and other correlated matters of a public service company. By this act a complete system in itself is presented to enforce such powers: York Water Co. v. York, 250 Pa. 115, 118. Courts were not intended to be the administrative tribunal for this purpose. The commission has not decided this appellant is not within its regulatory control and may not be compelled to respond to a complaint filed against it. Plaintiff had a full and complete remedy to prevent any encroachment or wrongful use of territory by defendant. Being a public service company, it could complain (section 6 of article vi) against defendant when it did an act forbidden or that it had no power to do — such acts as are within the field of the commission’s control and subject to injury. The powers of control or regulation, or whatever authority the court may in other days have possessed over these concerns, are supplanted by the Public Service Commission.”

In the case of St. Clair Borough v. Tamaqua, etc., Ry. Co. et al., 259 Pa. 462, 468, the Supreme Court, inter alia, said:

“Since the Public Service Company Law has been upon our books, we have consistently adhered to the rule that matters within the jurisdiction of the commission must first be determined by it in every instance before the courts will adjudge any phase of the controversy (Bethlehem City Water Co. v. Bethlehem Borough, No. 2, 253 Pa. 333, 337, 338; New Brighton Borough v. New Brighton Water Co. et al., 247 Pa. 232, 240, 241, 242); and it is plain that orderly procedure requires an adherence to this practice, otherwise different phases of the same case might be pending before the commission and the courts at one time, which would cause endless confusion.”

Wherefore, we are of the opinion that jurisdiction is in the Public Service Commission and not in us as to paragraphs 5, 6, 7 and 8 of the bill, and it is doubtful whether, under “orderly procedure,” we should at this time give any consideration to the phase of the case as set forth in paragraph 9. Moreover, the plaintiffs by their bill pray that we restrain the defendant from the further transmission of electric current over its wires as now existing, and that a mandatory injunction issue requiring the removal by the defendant of its poles and wires from the streets aforesaid. To grant these prayers would be interfering with the powers and duties of the Public Service Commission. To grant the second, we think, would be an unreasonable exercise of this “kingly power” of injunction. To do so would be to deprive the public of the service of this defendant company. Light and power is supplied the public over these wires. We are bound to consider the results which would happen to the public if we directed the defendant company to cease functioning and to remove its poles, wires and cables.

In the case of Huckenstine’s Appeal, 70 Pa. 102, the Supreme Court, inter alia, said:

“A court exercising the power of a chancellor, whose arm may fall with crushing force upon the everyday business of men, destroying lawful means of support and diverting property from legitimate uses, cannot approach such cases as this with too much caution. Its aid is not of right, but of grace, and it must be sure that the exercise of this kingly power is just, wise and proper before it takes from a citizen his means of livelihood and destroys the value of his property for legitimate uses. And more than this, it must look at the customs of the people, the characteristics of their business, the common .uses of property and the peculiar circumstances of the place wherein it is called upon to exercise the power. In no other way can its justice, wisdom and propriety be exhibited in adjudicating upon the rights, interests and employment of the people subjected to its power. . . . The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts for the greater benefit they think they derive from their residence or their business there. A chancellor cannot disregard all this. ‘You must look at it,’ said Lord Cranworth, ‘not with a view to the question whether abstractly that quantity of smoke was a nuisance, but whether it was a nuisance to the persons living in the town.’ . . . ‘If the injury be doubtful, eventual or contingent, equity will not interfere by injunction:’ Rhodes v. Dunbar, 7 P. F. Smith, 287; and a ‘chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury:’ Richards’s Appeal, 7 P. F. Smith, 113, 114.”

In the case of Elliott Nursery Co. v. Duquesne Light Co., 281 Pa. 166, the Supreme Court, at page 173, said:

“It is still the equitable rule that ‘the chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury:’ Richards’s Appeal, 57 Pa. 105, 113. There are ‘many things a chancellor must consider when called on to strike down a lawful business, necessary to be carried on for the public weal. It often becomes a grave question whether so great an injury would not be done to the community by enjoining the business that a complaining party should be left to his remedy at law:’ Dilworth’s Appeal, 91 Pa. 247, 250; Heilman v. Lebanon & Annville St. Ry. Co., 175 Pa. 188, 199.”

The plaintiffs do not aver in their bill that by a diminution of electric current sent over these wires the injury complained of would be relieved. It may be that by reducing the voltage from 11,000 to 1100, or otherwise, per wire over each of the six, the trouble would be discontinued; on the other hand, it might still remain, and to prevent the interference complained of it might be necessary to remove or annihilate the whole line for which the plaintiffs pray or to reduce it to such a degree of service so as to render it insufficient for the public’s needs. Had the plaintiffs averred that this interference could so be modified or checked so as to injure neither the plaintiffs nor the public, this question at some stage of the ease might be considered, but under the pleadings we are in doubt, and being in doubt we should not act in the affirmative. This question raised by paragraph 9 is a case of first impression and involves very grave consequences. It is common knowledge that the radio is sensitive and much affected by nearby electric appliances and uses of electricity. The interference by the latter with the former has not been overcome by our scientists, but we may look forward to the time, and perhaps in the very near future, when we shall see the one so controlled in its now mysterious operation that it will not interfere with the other. But until that time we are of the opinion that the users of the radio must submit to annoyance coming from nearby public service corporations generating, using and supplying to the public power, heat and light rather than stop their operation by injunctions. The service is of such public importance that a court of equity should not interfere with it except for very grave reasons.

March 15, 1929,

Wherefore, we are of the opinion that the preliminary objections to the bill must be sustained and the bill dismissed.

Decree nisi.

And now, upon due consideration, it is hereby ordered, adjudged and decreed as follows:

The preliminary objections to the bill are sustained, the prayer of the petitioners is refused and the bill is dismissed, at the cost of the plaintiffs.


author: Potter, P. J.,

text:
    Commonwealth v. Fisher.

      C. C. Lesher, District Attorney, for Commonwealth.

      Cloyd Steininger and William L. Showers, for defendant.
    May 19, 1930.
   Potter, P. J.,

This defendant, with his family, occupied a dwelling owned by Mrs. Ward C. Royer, in Mifflinburg, Union County, Pennsylvania, as a tenant. It seems he was back with the payments of his rent, and Mrs. Royer took out a landlord’s warrant and placed it in the hands of John F. Yeisley, a constable in and for the Borough of Mifflinburg, by virtue of which he levied on the household goods of the defendant, the levy having been made on the premises some time during the day of Oct. 15, 1929. When the levy was made the defendant was packing his goods preparatory to moving, and he told the officer he intended to move, in pursuance of which, in the evening of the same day, he moved his goods to another residence in the same town, approximately four blocks away. He says the officer gave him permission to move the goods. The officer denies it. However this may be, we do not think it material from our viewpoint of the case.

The defendant was then arrested on a criminal warrant charging him with a violation of the provisions of the Act of April 22, 1903, P. L. 242, in removing his property after levy made with intent to defraud the landlady out of her rent. He was tried before a jury and was found guilty. Then the motion in arrest of judgment was filed with reasons for a new trial as follows:

(1) The verdict is against the evidence.

(2) The verdict is against the weight of the evidence.

(3) The verdict was against the law.

(4) The verdict of the jury was illegal, void, and should be set aside.

Additional reasons, as follows, were filed:

(1) The Commonwealth has failed to introduce any evidence showing the value of the goods concealed, which value is essential in order that the court may properly impose sentence.

(2) The Commonwealth cannot fail to introduce evidence as to the value of the goods in order that the only punishment the court can impose is a prison sentence.

(3) The evidence does not support the indictment.

The act under which this indictment was drawn, and the charge made, provides as follows: “Any person who shall remove any of his or her property, or the property of any other person or persons, out of any county, with intent to prevent the same from being levied upon by virtue of any execution, or to prevent the said property from being sold by virtue of any said execution after levy has been made thereon; or who shall secrete, assign, convey, or otherwise dispose of any of his property, or the property of any other person, with intent to defraud any creditor, or to prevent such property from being levied upon by virtue of any execution, or to prevent such property from being sold by virtue of any execution after levy has been made thereon, or to prevent such property from being made liable for the payment of his debts, or the debts of any other person, ... on conviction thereof, shall be guilty of a misdemeanor, and be sentenced to pay a sum not exceeding the value of the property or effects, so secreted, assigned, conveyed, removed or otherwise disposed of or concealed . . . and undergo an imprisonment not exceeding one year.”

It is to be noted that under the provisions of this act the goods must be removed out of the county. In this case they were not removed out of the town and the defendant told the officer he would remove them. They were removed about four blocks. Under the landlord’s warrant, they could be followed for a period of thirty days wherever found. We see no concealment in this. The officer surely could have followed the goods to the new residence and sold them under his warrant. Had they been removed out of the county, a different aspect might appear.

Then, no value of the goods was given on the trial. This, we think, of itself, is fatal. On sentence, we are to sentence the defendant to pay a sum not exceeding the value of the goods removed. How are we to do this when we have no evidence as to their value? The sentence in this respect is not left to the discretion of the court. Can we guess at the approximate value of the goods? We think not. This testimony should have been produced by the Commonwealth. It was not; wherefore, we have nothing before us by which we can fix the value of the goods removed.

And then, we have no intent proven that this defendant removed the goods with intent to defraud his landlady. He told the officer he was moving, and he did remove them to another building in the same town, about four squares away. We see no intent to secrete or to perpetrate a fraud.

There are, in our judgment, two weighty reasons why we could not pass sentence on this defendant:

(1) Because the goods were not removed out of the county.

(2) Because on the trial of the case no evidence was produced by the Commonwealth in any way tending to show the value of the goods removed. The officer could have and should have pursued his warrant.

And now, to wit, May 19, 1930, the motion in arrest of judgment is sustained, the verdict of the jury is set aside, and the defendant is discharged without day, the costs to be paid by Union County.

From A. Francis Gilbert, Lewisburg, Pa.


author: Groff, J.,

text:
    M. Lurio & Brother v. Pennsylvania Railroad Company.

      George T. Hambright and John E. Malone, for plaintiffs.

      Zimmerman, Myers & Kready and Daniel G. Donoghue, for defendant.
    April 19, 1930.
   Groff, J.,

The pleadings in this case consist of a bill in equity filed on Aug. 23, 1929, and served on the defendant the same day. The said bill asked for a permanent injunction restraining the defendant from interfering with the plaintiffs’ right to the use of a certain passageway described in the said bill, and such other relief as equity may require and the court may see fit. To this bill, an answer was filed on Sept. 21, 1929, admitting the facts alleged in certain paragraphs of the said bill, and denying the facts alleged in certain other paragraphs of the said bill.

There is but one issue raised in these pleadings, and that is, have the plaintiffs gained a right by adverse user to a certain alley or driveway located on defendant’s property in the City of Lancaster, Pennsylvania, immediately in the rear of its depot and used in connection therewith?

Findings of fact.

1. The defendant is a corporation incorporated under the Act of Assembly of the State of Pennsylvania approved April 13, 1846, and found in the Pamphlet Laws of that year at page 312.

2. Section 2 of the said act provides:

“. . . That said company shall not purchase or hold any real estate, except such as may be necessary or convenient for the making and constructing of said railroad, or for the furnishing of materials therefor, and for the accommodation of depots, offices, warehouses, machine shops, . . . and for the persons and things employed or used in or about the same. . . .”

3. Section 11 of the said act provides:

“That the president and directors of said company shall have power and authority by themselves, their engineers, superintendents, .... to survey, ascertain, locate, fix, mark and determine such route for a railroad as they may deem expedient, not, however, passing through any burying ground, or place of public worship, or any dwelling house without the consent of the owner or owners thereof; and not, except in the neighborhood of deep cuttings or high embankments, or places selected for sidings, turnouts, depots, ... to exceed four rods in width; and thereon to lay down, erect, construct and establish a railroad, with one or more tracks. . . .”

4. That the said Pennsylvania Railroad Company did, by deed dated July 1, 1859, and recorded in the office for the recording of deeds in and for Lancaster County, at Lancaster, Pennsylvania, in Record Book W, volume 8, at page 400, acquire from James B. Lane and G. Taylor Lane, administrators of the estate of John N. Lane, deceased, a certain tract of land located in the City of Lancaster, to wit:

“All that certain House, called the ‘Lancaster City Exchange’, and other buildings thereto belonging, and Lot or piece of ground upon which they are erected, Situate in the City of Lancaster aforesaid, on the north side of the Pennsylvania Railway, and on the east side of North Queen Street; containing in front on North Queen Street, about fifty nine feet, one inch, more or less; and in depth two hundred and forty five feet, to a fourteen feet wide alley, upon which it contains, eighty one feet one inch more or less. Bounded on the north by the south wall of a two story Brick house and ground of Jacob McCully; on the east by said alley, on the South by the Pennsylvania Railway.”

5. That at the time the said land was purchased by the Pennsylvania Railroad Company it was subject, on the northern border, to the use of an alley nine feet and five inches wide, and extending in depth of that width east-war dly from North Queen Street and along the northern boundary of the granted premises a distance of 60 feet.

6. That on Oct. 25, 1860, and recorded in the Recorder’s Office of Lancaster County, Pennsylvania, in Record Book X, volume 8, at page 507, James T. McCulley and Sarah Jane McCulley, his wife, then being the parties owning the premises having a right to the use of the said alley, did release and forever quit-claim unto the Pennsylvania Railroad Company, its successors and assigns, for themselves, their heirs and any person claiming under them, all their right, title, interest, privilege and use of the said alley.

7. That the Board of Directors of the Pennsylvania Railroad Company, by a resolution passed June 29, 1859, “Resolved that the Pennsylvania Rail Rd. Company will locate and erect a building or depot for the accommodation of the passenger travel & other business on the line of their Road, on the plot of ground bounded by North Queen St. on the west and Chestnut St. on the south, in the City of Lancaster,” which described plot of ground included the ground over which the alley in controversy passes.

8. That in the years 1860 and 1861 the Pennsylvania Railroad Company constructed and erected upon the said premises a depot, located on the north side thereof; and for use in connection therewith established, between the station and its northern boundary, an alleyway of the width of fifteen feet three inches on North Queen Street, and gradually narrowing to the width of fourteen feet and six inches on North Christian Street.

9. That the said driveway and passenger depot have been used continuously from the time of the erection of the depot until the present time, by the Pennsylvania Railroad Company, for a depot and other purposes incidental to the operation of its railroad and for railroad purposes.

10. That the said alleyway was paved, cleaned and kept in repair by the Pennsylvania Railroad Company, through its employees, from the time it was laid out until the present time.

11. That in addition to the Pennsylvania Railroad Company using the said alley, it was used by the public generally for a passageway from Duke, or Christian, Street to North Queen Street, or the reverse, when the Christian and North Queen Street crossings were blocked by trains; and by the owners of the premises on the north, in gaining access to and from their premises, in common with the public and the Pennsylvania Railroad.

12. That at certain times during the period of the existence of the said alley, or driveway, the Pennsylvania Railroad Company would construct barriers across its ends and maintain them temporarily.

13. That there were numerous doorways and openings from the north side of the depot building into the said driveway, affording entrance and exit to and from the depot, to and from a restaurant established therein, to and from the cellar of the depot, to and from an apartment on the second floor of the said depot, and to and from the rooms used for storage of materials used by the defendant.

14. That the said alley was used for the purpose of hauling trunks to and from the said depot; for the purpose of hauling expressage to and from the express company’s rooms, which occupied the northwest portion of the said building; for the purpose of taking material necessary to the maintenance of the said railroad to and from its storage place in the said depot; and for other necessary and convenient handling of the business of the said railroad and the entertainment of the traveling public.

Discussion.

This bill in equity is brought by the plaintiff to restrain the defendant from closing up an alley on the north side of the Pennsylvania Railroad Station, in the City of Lancaster, Pennsylvania. In 1859 the company acquired a piece of land on the east side of North Queen Street, in this city, north of Chestnut Street, containing in front on said North Queen Street fifty-nine feet and one inch, more or less, and extending in depth eastward two hundred and forty-five feet to a fourteen feet alley, which is now known as Christian Street. This tract of land was immediately adjacent to the right of way which the Pennsylvania Railroad Company, after its incorporation by the Legislature of Pennsylvania on April 13, 1846, purchased from the State of Pennsylvania as a part of the public works of the state.

At the time this piece of land was purchased by the Pennsylvania Railroad Company, its board of directors passed a resolution to build a depot in the City of Lancaster, at the corner of North Queen and Chestnut Streets. In 1860 it started the erection of the depot on the land it had acquired as aforesaid, and completed the construction of the said depot in 1861. The walls then erected are the walls that are still standing, and mark the site of the abandoned depot in Lancaster City.

The actual erection of the depot was a dedication independent of the resolution passed by the board of directors of the land acquired, to actual railroad purposes, as it had a right to do, under its charter. Justice Stewart, in Delaware, Lackawanna & Western R. R. Co. v. Tobyhanna Co., Ltd., 232 Pa. 76, 85, said:

“What then will impress it [a piece of land] with a public use and bring it within the sanctity of right of way? We answer nothing but an actual dedication of the land to that use by so employing it, or other equally decisive act.”

The company, under its charter, had a right to acquire land for a right of way not exceeding a certain width, and also such lands as were necessary for depots, water-tanks, etc. The piece of land purchased, as above described, could have been condemned for the purpose to which it was. dedicated. But the difficulty in this case arises, not from the use of the land actually occupied by the depot, but from the fact that at the time this depot was erected a road, or alleyway, approximately fifteen feet wide, was permitted to remain open between the station and the northern border of the land acquired by the railroad company.

Prom its depot building, into this alley, the railroad company constructed numerous doorways. One was used for the entrance and exit to and from the waiting-room; one was originally used for an entrance and exit to and from a lunch-room that occupied a portion of the station; one was used for the loading and unloading of baggage; and one was used for an entrance and exit to and from an apartment which was on the second floor of the depot building. Doorways entered from the alley or driveway into the cellar of the building, which was used for the storage of material, and the entrances from this alleyway were also used to gain access to the offices of the engineers, master mechanics and other employees of defendant company.

At the western end of the station was the North Queen Street crossing of the Pennsylvania Railroad, and at the eastern end of the depot was the fourteen feet wide alley, or Christian Street crossing, of the Pennsylvania Railroad. Trains pulling into the station blocked both these crossings, and the public would use this alleyway while the crossings were blocked in going from North Queen Street to Christian Street, thence to Duke Street, and vice versa. It was also used by the persons whose properties bordered the railroad ground, and the alley on the north in entering their premises with merchandise and teams. This alleyway was paved, kept in repair and kept clean by the employees of the railroad company, thus showing the absolute control and responsibility which the railroad company assumed in maintaining the same. It was as essential in maintaining and carrying out the purposes of the depot, the offices and the baggage and express departments in the building as the room in which the tickets were sold, and, in our opinion, was as essential to the railroad company in accommodating the public and in carrying out its purposes as the station itself was.

Now, could the plaintiffs, who own the property adjacent to the Pennsylvania Railroad Company on the north, acquire right by adverse user, through themselves and their predecessors in title, to this alley so as to exclude the railroad company from closing it? We think not. The railroad company had a right to acquire, under its charter, through condemnation or otherwise, real estate for right of way and depot purposes.

It was held in Reading Co. v. Seip, 30 Pa. Superior Ct. 330, that :

“A railroad is a public highway, and the land which it covers, whether acquired by the exercise of eminent domain or by purchase, is not the subject of adverse possession, and is immune from the statute.”

We can see no distinction between the use of land purchased in this case and dedicated for the use of a station and a driveway as an approach to the same and land purchased and dedicated for the construction of switches adjacent to, and diverging from, its tracks.

In the case of Reading Co. v. Seip, above cited, the court, speaking through Judge Beaver, in the opinion, on page 335, said:

“Land taken by a railroad company for switches, turn-outs and sidings is for a public use. It is not the special use made of property taken which characterizes, but its convenient necessity to that part which is for the public use.”

And, further, on the same page, the same judge said:

“What we now decide is that the land claimed by the defendant by adverse possession, having been purchased by the predecessors in title of the plaintiff for railroad purposes and having been used for the construction of switches adjacent to and diverging from its main track, was held by the said railroad for a public use, under the grant of its right of way, and that no title could be acquired by the defendant to the surface of any portion of what was used for such a purpose, by adverse possession, however long continued.”

The Constitution of the State of Pennsylvania, article xvn, section 1, says: “All railroads and canals shall be public highways, and all railroad and canal companies shall be common carriers.”

The land and alleyway in question, having been used for railroad purposes, would become a part of a public highway.

In Stevenson’s Appeal, 17 W. N. C. 429, in speaking of a turnpike, the court said: “No title can be acquired against the public by user alone, nor lost to the public by non-user. A turnpike is a public highway.”

It would seem to us that the rule of law set down by Shaw, C. J., in the case of William Kilburn et al. v. Jonathan S. Adams, 7 Metcalf (Mass.), 33, would apply here. It reads:

“The rule we think is, that where a tract of land, attached to a public building, such as a meeting house, town house, school house and the like, and occupied with such use, is designedly left open and unenclosed, for convenience or ornament, the passage of persons over it, in common with others for whose use it is appropriated, is, in general, to be regarded as permissive, and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and, therefore, until they think proper to enclose it, such use is not adverse, and will not preclude them from enclosing it, when other views of the interests of the proprietors render it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply, unless there be some decisive act, indicating a separate and exclusive use, under a claim of right.”

Again, in 1 Thompson on Real Property, § 463, we find:

“A right by prescription to pass through a way or alley, belonging to the owner of adjacent property and kept open for the owner’s own use,- or the use of his tenants, is not acquired by one who merely passes through it, and has continued to do so for many years, without doing an adverse act, such as making repairs or giving the owner any notice of a claim to pass over the alley as a matter of right, as distinguished from a mere license or permission of the owner.”

Our conclusion, therefore, is that the same rule of law applies where a party claims an easement in an alley or way by prescription as applies- to the possession and ownership of land by adverse user or prescription.

The case of Delaware, Lackawanna & Western R. R. Co. v. Tobyhanna Co., Ltd., 232 Pa. 76, was a case where the railroad company had acquired a strip of land adjacent to its right of way 100 feet in width and 700 feet in length; that is to say, the ground used as its roadbed, with 50 feet of ground on either side of its center line. It acquired the same by conveyance, but as a separate tract. It was located on the western side of the railroad and was bisected by a public road, dividing it into two equal parts. The controversy was over one of these parts. The Tobyhanna Company, against whom ejectment had been brought, occupied a portion of this ground as a warehouse. The verdict was a recovery by the plaintiff of all the land in dispute, except so much as had been occupied by the defendant’s structures for more than the statutory period. The defendant, Tobyhanna Company, claimed title to the entire lot by adverse possession. The court below gave binding instructions to the effect that defendant’s evidence was not sufficient in law to overcome the plaintiff's written title, except as to so much as was covered by defendant’s improvements. The Supreme Court, in reviewing this case, said:

“Was this error? We have examined the evidence with much care without being convinced that the instruction was erroneous. It lacks one essential— the possession shown was not exclusive. [In our case the user was not exclusive.] Certainly it was not of such a character as to put the plaintiff on notice. The circumstances suggest a permissive use rather than a hostile holding [user]. The defendant’s occupancy and use of the land was in some respects peculiar to itself, but nevertheless others used it for their own purposes, with a like freedom. It was an open lot [alley] admitting of public travel upon and over it from all points. The public used it without restraint in hauling material for shipment , from the plaintiff’s siding. The principal use of it by defendant was for storing lumber for like shipment. The evidence indicates strongly that the lot was regarded by the public as a common. Their use of it, concurring with that of the defendant, without let or hindrance, is wholly inconsistent with defendant’s claim that it was during this period holding hostilely to the plaintiff.”

The judgment of the court below was affirmed. We feel that that is the exact principle involved in the case we are deciding.

A railroad company may lawfully acquire lands not strictly essential to the operation of its road, but which may conveniently and profitably be used in connection therewith; but it is only for the acquiring of such as are essential that the law makes provision by allowing the high franchise to be exercised for their procurement. These essentials are a roadway, not exceeding a given width, and sidings, water tanks, turnouts and depots.. Therefore, we conclude that this alleyway, being essential to the maintenance and operation of its depot, and being continuously used in connection therewith, is brought within the class of property that is not subject to acquisition by adverse user. It was impressed with the public use and not to be interfered with. The railroad company’s intention that it should never become impressed adversely with the right of others to use it is clearly and distinctly shown by the fact that from time to time it erected barriers across this right of way, excluding the public, the plaintiffs and their predecessors in title.

If any further citation is necessary to sustain our position, we think that the case of Delaware, Lackawanna & Western R. R. Co. v. Stroudsburg, Water Gap, etc., Street Ry., 289 Pa. 131, sustains our position.

Under all the evidence, this strip of land was as much impressed with the public use as if tracks had been laid over and upon it, thus devoting it to a plain and manifest use in an unmistakable way, which exempts it from becoming subject to the rights acquired by adverse user. This user was promptly cut off by the railroad company erecting the barriers complained of in the bill of injunction immediately when the station ceased to be used for railroad purposes.

We feel that the facts of this case are so plain and the law applicable thereto is so definite that a further discussion would be useless.

Conclusions of law.

1. That property, even though acquired by purchase, when dedicated to actual use, either as a right of way or for depot purposes, cannot be acquired adversely by prescription or use after the lapse of time, however long.

2. That plaintiffs’ use of the alley referred to in the bill in equity was a permissive use and did not ripen into a right by prescription.

3. That the railroad company had a right to erect and maintain the barriers which it did at either end of the alley complained of and to use the land occupied by the said alley, or way, as it saw fit after its station was abandoned.

Decree.

And now, April 19, 1930, it is ordered and directed that the bill in equity filed in this case asking for an injunction be dismissed, at the costs of the plaintiffs. Bill dismissed.

Rrom George Ross Eshleman, Lancaster, Pa.


author: Boosb, P. J.,

text:
    Buckman’s Application.
    C. L. Shaver, for petitioner.
    May 29, 1930.
   Boosb, P. J.,

On April 7, 1930, R. E. Buckman filed his petition setting forth “that he is desirous of establishing himself in business in Somerset County as that of a detective for private hire,” and praying that a license be granted to him for the purpose of conducting a detective business in accordance with the Act of May 23, 1887, P. L. 173; whereupon the court fixed Monday, April 28, 1930, as the time for hearing said application and directed that public notice thereof be given in accordance with the provisions of said act. Attached to his petition there is a certificate signed by many business and professional men, officials and private citizens, certifying to the competency and integrity of the applicant and the necessity for his appointment. At the time of the hearing, three justices of the peace, three business men and one constable appeared and testified that, in their opinion, there is a necessity for the services of a private detective. Several persons testified in opposition to the granting of this license on the ground that there is no necessity therefor.

Prior to the passage of the Act of May 23, 1887, any one could engage in the detective business the same as in any other business or vocation. A detective is one whose business it is to detect criminals, to discover matters of secrecy, gather evidence to prove the commission of certain acts or conduct, criminal or otherwise, for hire or reward; and in order that the public might be protected against any abuse which persons might be guilty of in following this employment for private gain, it was deemed advisable by the legislature that no one should be permitted to engage in this business except such as receive a license from the court and give bond to protect the public against any violation of duty. In order that the powers thus conferred upon private detectives might be rendered more effective, they are, by the Act of May 31, 1901, P. L. 355, which amends section 3 of the Act of 1887, authorized and empowered to serve warrants in criminal cases within the Commonwealth. Keeping in mind the purpose of the act and the powers conferred thereunder, it is. incumbent upon the applicant to furnish proof satisfactory to the court of his competency and integrity, as well as the necessity for granting a license to engage in said business.

From the certificates, letters and signatures attached to the petition and the personal knowledge and observation of the applicant, the court is satisfied of his competency and integrity; but we are not satisfied that there is any necessity for the licensing of a private detective or agency in this county. In construing the Act of May 23, 1887, P. L. 173, the courts have said:

“The Act of May 23, 1887, P. L. 173, is not one permitting every person who may be honest and competent to be licensed to act as a private detective. It simply makes it lawful for the court to appoint such persons if they see proper to do so. I would not grant a license to any one to act as a private detective unless I was satisfied that there was some emergency requiring it. The private detective has so much power for evil that I feel such appointments should only be made in cases of clear necessity:” Dickerson’s Petition, 13 Dist. R. 32. See, also, Richey’s Petition, 13 Dist. R. 400.

In this county, whose population is largely comprised of people engaged in agricultural pursuit's and the coal mining industry, we already have a sufficient number of officers clothed with power and authority to detect and investigate crime, serve criminal warrants and to afford protection to the public. With the sheriff and his deputies always available, the regular employment of a county detective and authority conferred upon the district attorney to employ additional detectives for special purposes as occasion may require, the location of a troop of the state constabulary in the immediate vicinity of the county seat always subject to call, the election of a constable in every borough and township of the county, and the additional employment of policemen in the boroughs, it would appear that there is no necessity for the appointment of a private detective. The court is not satisfied from the evidence that any real necessity for licensing a private detective exists, and, therefore, the application is now refused.

Prom Mrs. Daryle R. Heckman, Somerset, Pa.


author: MacDade, J.,

text:
    Lugar v. Parker et al.

      William H. Ridley, for plaintiff; W. C. Alexander, for defendants.
    April 14, 1930.
   MacDade, J.,

This is an action in assumpsit upon the part of George C. Lugar against the defendants, Clarence D. Parker and Albert H. Yarnall, to recover the sum of $130, claimed to be the amount paid by the plaintiff to the said Albert H. Yarnall for the sale of an automobile.

It seems that the said Clarence D. Parker, on or about Nov. 1, 1928, operated a garage in Media Borough, and had in his possession a Ford sedan, engine No. 14576325, with Maryland license plates on said car No. 211819.

This car, from what we can learn, was found abandoned on the streets of Media by the chief of police and he stored the said car with the said Clarence D.' Parker until further notice. As it developed later, the car was a stolen car, having been stolen from one Clem D. Way in May, 1928, the said Clem D. Way being a nonresident of this state.

On or about Nov. 1, 1928, the defendant, Clarence D. Parker, claimed that there was rent or storage due on said automobile amounting to $42.33, and, in order to satisfy the said rent or storage charges, he gave to Albert H. Yarnall, the other defendant, and a duly qualified constable, a landlord’s distress warrant with instructions to execute the same and levy upon the said automobile to satisfy the said rent or storage charges.

Whereupon, in pursuance of said distress warrant, the said Albert H. Yarnall, constable as aforesaid, did levy on the said Ford sedan and expose the same to public sale, whereat the said George C. Lugar, plaintiff aforesaid, purchased the said automobile for the sum of $130. The said sum of $130 was paid as the purchase price therefor by the said George C. Lugar to the said Albert H. Yarnall, as constable, and he has his receipt therefor.

Thereupon the said Albert H. Yarnall having received the said $130 in cash from the said Albert C. Lugar, plaintiff aforesaid, the automobile was delivered to him, the plaintiff, by the said Albert H. Yarnall, constable.

Subsequently, on or about Dec. 13, 1928, there was issued out of this court a writ of replevin in which Clem D. Way was designated plaintiff and the said George C. Lugar, plaintiff aforesaid, was designated defendant, to recover the said Ford sedan, being the same automobile which the said George C. Lugar purchased from, and paid the sum of $130 cash therefor to, the said Albert H. Yarnall, constable, and one of the defendants aforesaid, which said automobile was delivered to Clem D. Way, under the said writ, the sheriff having taken possession of the same while in the custody of the said George C. Lugar and delivered it to the lawful and rightful owner, the said Clem D. Way.

The said George C. Lugar has made repeated demands upon Clarence D. Parker and Albert H. Yarnall for the said sum of $130^ being the amount paid in cash to the said Albert H. Yarnall for the said automobile, but they and each of them refused and still refuse to pay him the said amount, for the recovery of which this suit is brought.

In view of the above circumstances, we must conclude that the said automobile was abandoned on the streets of Media after it had been stolen, and, therefore, the title, it must be conceded, has never changed and the ownership was in the said Clem D. Way at all times, notwithstanding what may have transpired since the automobile came into the possession of the chief of police of Media and others.

It is a well recognized principle of law that a finder of lost property, and this would apply equally to stolen property, has no lien for expenses gratuitously incurred in taking care of it: Forster v. Juniata Bridge Co., 16 Pa. 393; Etter v. Edwards, 4 Watts, 63.

In the former case it was held that property carried adrift continues to be the property of him who owned it at the time of the flood. When located the owner has a right to enter upon the land and remove it, but is not bound to do so and may abandon it without incurring responsibility for injury by it.

The owner of the land in that case had no lien on property cast on it by a drift, and the same application can be made to an automobile which has been abandoned and placed in the custody of a garage owner by the chief of police of the town. Indeed, where the owner of the property proves his title or ownership in it, as the owner of the automobile did in this case, and the garage owner has actually converted it to his own use, the latter will be liable to him in trover and conversion for damages; therefore, the property was properly delivered by the sheriff under the writ of replevin to the said Clem D. Way, and the question is now whether the garage owner ever had a lien on the property for storage or a claim for rent. We think not.

This is an action in assumpsit to recover $130 paid by plaintiff to the defendant, Yarnall, for the purchase at public sale conducted by the said Yarnall, presumably as a constable under a landlord’! distress warrant, of the automobile in question, which belonged to a person who was a nonresident and from whom it was stolen and found abandoned on the streets of Media by the chief of police and then placed by him in the custody of the other defendant, Parker, as a garageman, for safe-keeping.

At that time it was the duty of Parker and the chief of police and of this constable (Yarnall) to report the circumstances surrounding possession of the car to the Secretary of Highways, as the acts of assembly require. This was not done. It proved later that the car had been reported stolen by the owner and then it was that the car was located when the plaintiff applied to the said Secretary of Highways for a certificate of title and registration. If the defendant, Parker, as a garageman, had reported the car, it would not have been necessary to conduct any public sale to sell the said_ automobile for rent or storage. It was entirely the fault of the garageman and the chief of police that this unfortunate situation has arisen for failing to report the car.

Section 1220 of the Motor Vehicle Code of 1920 provides that the person in charge of any garage or repair shop in which has been left a motor vehicle of unknown ownership for a period of fifteen consecutive days, without being removed by its owner or other person duly authorized to remove the same, shall report to the department within twenty-four hours of the elapse of such fifteen-day period, giving the name, engine number, manufacturer’s serial number, registration plate number and the name and address of the person abandoning the same, if known.

In section 209 (d) of the same act, it is provided that it shall be the duty of every peace officer having knowledge of a stolen motor vehicle immediately to furnish the Secretary with full information in connection therewith. In lieu of this, this garageman attempted to sell the stolen motor vehicle for rent, and the plaintiff, either by design or carelessness, certainly, in disobeying the law, became the victim to the extent of having $130 wrested from him under the pretext of a legal distress. There could be no legal distress warrant issued, for there was no rent due. If anything was due it was for storage charges, and a landlord’s distress warrant cannot be legally issued for that: Baldwin Piano Co. v. Moyer, 21 Schuyl. Legal Rec. 405.

As a landlord himself issues the warrant, a constable need not accept and serve it, for a constable is not bound to serve writs of private persons. But where a constable does serve a landlord’s warrant, he merely acts as an' agent for the landlord, and a writ is no protection to a constable if served illegally or irregularly: Bair v. Warfel, 5 Lane. Law Rev. 81; Wells v. Hornish, 3 P. & W. 30.

This constable should have protected himself by requiring an indemnity bond from this supposed landlord, the other defendant herein. This is always a wise thing to do in executing a landlord’s warrant: Dill’s Law on Constables of Pennsylvania, 88, 109; Wells v. Hornish, supra; McElroy v. Dice, 17 Pa. 163.

However, this defendant, Yarnall, did more. He made the appraisement and conducted a public sale, when the motor vehicle was sold to the plaintiff and the latter paid for the same and obtained a receipt therefor and the motor vehicle was delivered by Yarnall, the constable, to the said plaintiff. He, therefore, under the ruling of Com. v. Nichols, 4 Dist. R. 318, was more than an agent, for he latterly (after the appraisement) was acting in his official capacity. That case decided: “Until an appraisement has been made, the constable is only the landlord’s bailiff.” After appraisement, the case might be different: Com. v. Leech, 27 Pitts. L. J. 233; Com. v. Abrams, 94 Pa. Superior Ct. 556.

If this garageman had a common law right of lien for storage (and we doubt it, as we believe he must show in the instant case statutory authority), he is in no better position, for, under the right to a lien by a liveryman for the keep of a horse, he had no right to sell the carriage or other vehicles and harness for their care and storage: Hartshorne v. Seeds, 1 Chest. Co. 460.

One having a lien may relinquish it by his conduct: Govett v. Reed et al., 4 Yeates, 456; Davis & Pugh v. Bigler & Son, 62 Pa. 242.

The garageman, if he had a lien for storage, should have made a public sale in accordance with statutory authority and should not have issued a landlord’s distress warrant, which was wholly unwarranted. He was amply protected in such charge for storage, if he so charged, in the replevin proceedings which the lawful owner subsequently pursued by setting up a claim for rent or storage, as the case might be, in an affidavit of defense. This he has utterly neglected to do, but in lieu thereof has the plaintiff’s money, covering not only his charges, the costs, etc., of the distress warrant proceedings, but also has in his possession the balance of the purchase money which under the law should be distributed to the owner of the car. However, the owner got his car back, and this balance of money should be returned in all honorable dealing to the plaintiff in any event.

Evans v. Witman, 10 D. & C. 719, decides that where replevin issues against a person having possession under claim for storage, the question of whether or not defendant has a lien must be settled by the jury.

Where a stolen car is stored by police with a public garage and later sold by the garageman at auction for storage charges, the purchaser does not obtain good title as against the owner, for a lien cannot be created without consent of the owner: General Exchange Ins. Co. v. Kirley, 77 Pitts L. J. 681.

The owner had a legal right to claim and recover this “stolen” car, even under the circumstances of this case, for we have so decided in F. A. North Co. v. Hall, 20 Del. Co. Reps. 324, where we said:

“If an owner loses his property or is robbed of it, or it is sold or pledged without his consent by one who has only a temporary right to its use or a qualified possession of it for a specific purpose, the owner can follow it and claim it in the possession of any person howsoever innocent.

“No man can be divested of his personal property without his consent, and even an honest, purchaser under a defective title cannot hold it against the true proprietor.”

Storage charges are not liens on a chattel such as a motor vehicle within the Act of May 13, 1876, P. L. 171. It certainly is not a landlord case in any event: Estey v. Dick, 41 Pa. Superior Ct. 610.

This is a somewhat analogous case and it holds that where a bailee ends the bailment and secretly deposits the chattel bailed in an incorporated storage warehouse, the storage company has no lien for charges for storage as against the real owner and cannot refuse to return the chattel to the real owner unless the latter pays the charges. It seems to us that this fits the facts in the present case exactly. Furthermore, it holds that if an owner loses his property or is robbed of it or it is sold or pledged without his consent by one who has only a temporary right to its use by hire or otherwise, or a qualified possession of it for a specific purpose, as for transportation or for work to be done upon it, the owner can follow it and claim it in the possession of any person howsoever innocent.

We conclude, therefore, that the plaintiff is entitled to have his motion for judgment prevail, and the following is our

Order.

And now, April 14,1930, the above motion for judgment for want of a sufficient affidavit of defense coming on to be heard by the court in bane, together with oral arguments and briefs, after due consideration, the court doth order and decree that the rule for judgment for plaintiff against the defendant, Albert H. Yarnall, for want of a sufficient affidavit of defense, be and is hereby made absolute, and that the prothonotary be and is hereby ordered and directed to enter judgment in favor of the plaintiff, George C. Lugar, and against Albert H. Yarnall, in the sum of $130, together with interest thereon from Nov. 1,1928.

From William R. Toal, Media, Pa.


author: Brown, Jr., J.,

text:
    Collins v. Collins.

      S. E. Comen, for libellant.
    Jan. 31, 1931.
   Brown, Jr., J.,

This case is before us on libellant’s exceptions to the master’s report in which he recommended that the libel be dismissed for want of jurisdiction.

In March, 1928, when respondent left libellant, they were living in Philadelphia, and subsequently, in November, 1929, libellant, moved to Towanda in Bradford County. Then on May 21, 1930, she filed her libel, not in Bradford County where she resided, but in Philadelphia County where the respondent had his residence. The question for determination is whether this was permissible under the Act of May 2, 1929, P. L. 1237.

Section 15'of the act provides: “All petitions or libels for divorce shall be exhibited to the court of the county where the libellant resides, except where the husband and wife shall be resident in different counties of this Commonwealth, and, while so resident, a cause of divorce shall arise, in which cases the libellant may, at his or her option, institute and prosecute proceedings either in the county of his or her own residence or in the county wherein the respondent shall be resident and the cause for divorce shall have arisen.”

The cause of divorce alleged is desertion. Did it arise in Philadelphia when the libellant and respondent resided here or when they were resident in different counties? Section 10 (d) of the act provides that it shall be lawful for a wife to obtain a divorce when her husband “shall have committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for and during the term and space of two years.” “Separation is not desertion. Desertion is an actual abandonment of matrimonial cohabitation, with intent to desert, willfully and maliciously persisted in without cause for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other:” King v. King, 36 Pa. Superior Ct. 33, 36; Ulizio v. Ulizio, 96 Pa. Superior Ct. 91, 95. Withdrawal of the husband in itself is not sufficient. It must be persisted in for two years. At any time during that period he may ask his wife to return to him and offer to provide a home for her. If he does this in good faith then there is no desertion. Desertion does not become a ground for divorce until the conclusion of the two-year term. So here it arose as “a cause of divorce” only at the expiration of two years after respondent withdrew in March, 1928, from libellant’s habitation, i. e., in March, 1930, while they were “resident in different counties.” . .

Section 17 of the act provides that “in cases of willful and malicious desertion, and absence from the habitation without reasonable cause,” the wife may exhibit her li'bel to the court “at any time not less than six months after such cause for divorce shall have taken place, but the case shall not proceed to a hearing until after the expiration of two years from the time at which such desertion took place.” The phraseology of this section, if applied to that of section 15, might seemingly indicate that desertion means the original withdrawal or leaving of the home by the husband, but as the learned master has well said, “this limitation [section 71] is a restriction only on the institution of the suit and not a regulation of the genesis of the cause of action. . . . This provision ... is a restriction only on the time in which the case may proceed to a hearing and final decree. It in no way alters or changes the jurisdiction of the courts. The question of jurisdiction is entirely a different question.”

The present proceedings were properly instituted in Philadelphia County, where respondent resided when the cause of divorce arose; therefore, the exceptions are sustained.