author: Gordon, Jr., J.,

text:
    In re Blumenthal and Verlin.

      Attorneys — Disbarment—Discretion.
    A rule for disbarment of two^attorneys will be made absolute where it appears the attorneys secured the release on bail of a witness for the Commonwealth in a prosecution wherein they represented the defendant, advised the witness that she leave the jurisdiction so as not to appear at the district attorney’s office to prepare the case against their client, falsely told the district attorney that they did not know where the witness could be found, arranged for her marriage to defendant and advised the making of a false affidavit as to her age, so that a license could be obtained without the consent of her parents.
    Rule for disbarment. C. P. No. 2, Phila. Co., June T., 1928, No. 7993.

      L. B. Schofield, Assistant District Attorney, acting as amicus curiie, at the request of the Court, for the rule.

      Benjamin M. Golder, for respondents.
    July 24, 1928.
   Gordon, Jr., J.,

This is a rule for disbarment, entered by us, on our own motion, because of disclosures of the professional misconduct of these respondents, which came to our attention while sitting in the criminal court. The evidence taken on the hearing of the rule establishes the following facts:

Indictments for pandering and being a male bawd were found against one George Snyder, as of May Sessions, 1928, Nos. 741 and 742, and in those indictments Josephine Colvin, otherwise known as Josephine Snyder, was the nominal prosecutrix and a vital witness for the Commonwealth. One of the respondents, S. Richard Blumenthal, represented Snyder in the criminal proceedings, and the other respondent, Morris Verlin, is and was associated with Blumenthal in the practice of the law. It is unnecessary to review at length the facts of the cases against Snyder, which have not yet been tried. It will be sufiicient to state that the Colvin girl was sixteen years old in February of this year, and came to this city from her home in the South some time in the year 1927, when she was fifteen years old; and that the charge of pandering arose out of Snyder’s alleged activities in keeping this infant in a house of prostitution and receiving her earnings therefrom. Blumenthal not only knew these facts in his capacity as attorney for Snyder, but, as will be shown later, was also specially warned that the girl was a minor, just past sixteen years of age, and was a Commonwealth’s witness in the matter.

Judge Gorman, who heard the case at the preliminary hearing in the Municipal Court, desiring to protect the girl while here, and to return her to her parents in the South when the trial was ended, held her as a material witness against Snyder, and committed her to the custody of the Morals Court without bail.

The indictments, already mentioned, having been secured by the Commonwealth, the case was listed for trial on Tuesday, June 26, 1928. On the'preceding Monday or Tuesday, June 18th or 19th, the respondent, Verlin, appeared at the District Attorney’s office and interviewed Miss Mary Y. Van Gilder, who has charge of the listing of cases for trial. When asked his interest in the case, Verlin said that he represented the Snyder or Colvin girl, and wanted to know why she was being detained at Twelfth and Wood Streets, the Morals Court. Miss Van Gilder then reminded Verlih that the girl was only sixteen years old, and warned him that it would be doing her an injury to procure her release and return to immoral practices. To this, he replied that he was not so much interested in getting her out; it was “the other lawyer,” referring to his partner, Blumenthal, who represented Snyder. Verlin thus disclosed that he had intruded himself, at the instigation of his partner, in the representation of this adverse witness, whose interests conflicted with those of a client of the partnership; that he did not intend faithfully to represent her; that his conduct was the product of a conspiracy between the partners; and that he knew the interests of the Commonwealth and the person whom he was pretending to represent would be injured by securing her release on bail.

In the face of this warning and this knowledge, Verlin immediately secured a writ of habeas corpus for the girl, and on Wednesday, June 20th, she was released in the Quarter Sessions Court in $1000 bail for her appearance on the following Tuesday as a witness at the trial. From the court-room, the girl was taken by Verlin to his office, where she was turned over to Snyder, who took her to a hotel at Tenth and Pine Streets. Snyder and the girl lived together at this hotel on Wednesday and Thursday nights. On Friday morning, at Broad and Market Streets, they met Verlin, who informed them that the District Attorney’s office was looking for them, and had sent for him, and he advised them to leave the jurisdiction. Snyder then took the girl to New York City, where they stayed until Monday morning.

In the meantime, Verlin went to the District Attorney’s office on Friday, after warning Snyder to get out of town with the girl, and saw Assistant District Attorney Franklin E. Barr, who had charge of the prosecution of Snyder, and was seeking Miss Colvin to prepare the case for trial. At that interview, Verlin falsely told Mr. Barr that he did not know where the girl was, that he had been unable to find Snyder to locate her, and, in substance, refused to produce her for examination by the District Attorney.

On the following Saturday, June 23rd, District Attorney Monaghan sent for the respondent, Blumenthal. He asked Blumenthal whether he represented Snyder, to which Blumenthal answered that he did — “It is a case in our office.” The District Attorney then told Blumenthal that it had come to his attention that he and his partner, Verlin, were planning to marry the Colvin girl to their client, reminded him that Snyder had put the child, when she was under sixteen years of age, “out on the street,” and warned him that he and Verlin were doing wrong, and denounced their conduct as indecent. Blumenthal replied that he would try his cases to suit himself, and was then ordered out of the District Attorney’s office.

On Monday morning, June 26th, Snyder brought Miss Colvin back from New York to Philadelphia, and together they went to a barber shop on Oregon Avenue. At Snyder’s direction, the girl called Verlin’s office on the telephone. Blumenthal answered, and, when told where they were, directed her to wait there, saying that he would be there immediately. When this telephone conversation took place, David Mallace, Snyder’s bondsman, was in Blumenthal’s office, as he had received a notice to produce Snyder in court on that day. He heard Blumenthal’s end of the conversation, and, on the latter’s invitation, went with him to meet Snyder and the girl. As they were leaving the office, Blumenthal asked Mallace to tell Snyder that “the best thing for them to do is to get married; it will ease them up on the case.” When Mal-lace communicated this suggestion to Snyder, the latter said: “I know all about it; I want to marry her myself; I was thinking of that coming along.”

Having in this manner advised his client to marry the child whom he had debauched and wronged, Snyder and his attorney, Blumenthal, then took her, accompanied by Mallace, who was only interested in the matter to the extent of complying with the notice to produce the defendant in court, to City Hall, to secure a marriage license; and, on the way down, the two conspirators instructed the girl to give a false date for her birth in the application for a marriage license, so as to make it appear that she was over twenty-one years old. They thus suborned the perjury which she committed in that connection. After securing the license, Blumenthal took Snyder and the girl to a magistrate, who married them.

The foregoing facts tell a tale of professional misconduct and dishonor that may be safely asserted to be without parallel in the history of our bar; for the many unethical and criminal acts which these attorneys committed were not merely thoughtless mistakes of zeal and judgment; they were deliberately done in the face of repeated warnings from a number of sources, and in a callous and brutal disregard of the demands of common decency and honor. A child of tender years, away from her home, who, in her impulsive failings, peculiarly needed spiritual and moral guidance and protection, and who had been maintained in a life of shame and degradation by a conscienceless panderer, had been rescued by the agencies of the law and was safe under its humane protection. Prom this harbor of refuge that child was snatched by the criminal acts of these attorneys, and her life further blasted by linking her in the marriage state with her unclean corrupter. All this was done by them by abusing their official powers, in an effort to obstruct and defeat the justice which they were sworn to uphold, and, by misuse of legal processes, to close the mouth of a witness for the Commonwealth, and thus to cheat it of its rights. Such conduct by an attorney discloses a complete want of character and an unfitness for the high privileges of the office. This perversion to base and unmanly uses of the machinery of the law makes it necessary for us to vindicate the honor of the bar by purging it of such unworthy members.

The conduct of the respondents cannot be justified in any step that they took. Everything that they did in their representation of Snyder was in violation of the plain canons of professional ethics. Instead of preparing their client’s defense according to the truth, as was their right and duty, they sought to stifle the facts and hide the truth by tampering with a witness for the Commonwealth in a manner unusually bold and audacious, in view of the immaturity of the victim of their scheming. To have merely dissuaded the witness from testifying, or to have procured her to leave the jurisdiction, would have been criminal in any one. For attorneys to plot, as these did, to accomplish the same purpose by the methods here used was a breach of their oath of fidelity to the court, of which they are officers, and to the law, for whose pure administration they are responsible in all matters with which they have to deal. The license of an attorney confers no authority upon him to resort to sharp practices or dishonorable or deceitful conduct to defeat justice, or, by legal chicanery, to secure for the client that to which, in law and in morals, he is not entitled. This is evident. It is equally evident that even an undoubted right cannot be sought for a client by like means. To win at all costs is not, and has never been, the standard of the bar. And it never shall be, for the day it becomes so, the usefulness of the profession in the social structure will disappear.

It is no justification for the marriage of this child that she had expressed a willingness, or even desire, to marry the man who had corrupted her, or that in somewhat similar circumstances marriages have been permitted. She is a child incapable, unaided, of understanding her own interests, and forbidden by public policy to contract a marriage without parental consent. A wrong done secretly and hostilely is not cured merely because it might not be wrong if done openly and by agreement.

Another important feature of the misconduct of these respondents is in their hiding of the witness from the Commonwealth’s officers between the time she’ was released on bail and the following Monday, when she was married. This was a serious and unwarranted interference with the rights of their opponents and a grave obstruction of public justice. It is true that the legislature has not seen fit to give to the District Attorney the power of subpoena to compel Commonwealth’s witnesses to come to his office, and no punishment can, therefore, be inflicted upon one who refuses to answer such a summons. But the withholding of that power is in no sense a denial of his right to have access to his witnesses in the preparation of his cases. It is the duty of the citizen to aid the prosecuting officer of the State in every way that he can, consistent with his reasonable rights; to go to the prosecutor’s office, when invited, and to make full and frank disclosure to him of all things of which he may have knowledge touching the public interest. This is a public duty resting upon all; and he who seeks to dissuade another from performing it wrongs the State. For an attorney, who is charged with special knowledge in such matters, actively to conceal a. witness from the Commonwealth, or to endeavor, directly or indirectly, to dissuade a citizen from fully performing this duty, is gross misconduct, for which he is subject to discipline or to disbarment, according to the gravity and extent of his offending.

Other aspects, in which the Conduct of these respondents is to be condemned, might be mentioned, as, for instance,.the suborning of the perjury of the woman by Blumenthal in connection with the application for a marriage license, and the professional betrayal by Verlin of the interests of a client on whom he had thrust his pretended services as attorney. But we do not deem it necessary to comment upon their misbehavior in further detail. Their conduct, as a whole, was in every way indefensible, and- shows a blunted sense of their professional obligations and an utter want of that moral character which is so essential to the proper performance of his functions by an attorney. If we were to permit them to continue longer as attorneys of the court, we would be falsely holding them qut to the public as worthy of trust and confidence, and would work a wrong to the bar, whose ethical standards and traditions they have deliberately and shamelessly betrayed.

The rule to show cause why the respondents should not be disbarred is, therefore, made absolute, and the prothonotary is directed to strike from the roll of attorneys of the court the names of S. Richard Blumenthal and Morris Verlin, and to give notice of this action to the Orphans’ Court of Philadelphia County and to the Supreme and Superior Courts of Pennsylvania.


source: Caselaw Access Project

author: Henry, P. J.,

license: Public Domain

text:
    In re Public Road, from Lincoln Highway to Maple Avenue.

      Road viewers — Adverse report — New petition — Termini—Amendment-Rule of Court xi, sections 1, 2, S, 10 — Acts of May 25,1907, and April 23,1909.

    1. Viewers will not be appointed for the laying out of a public road which is presumably a substantial part of the proposed road upon which viewers have reported adversely on the day when the new petition is presented, as the Act of May 25, 1907, P. L. 233, and the rule of court provide that a second proceeding for a contemplated road shall not be received or acted upon for two years from the time of entering a final decree in the earlier proceeding.
    2. "Where a terminus of a proposed road i3 not fixed in the petition, as required by the Act of April 23, 1909, P. L. 142, the petition, being invalid, cannot be amended after the expiration of the time fixed by rule of court for presentation of petitions for viewers, such amendment being in effect a new proceeding.
    Rules to appoint viewers, to amend as to southern terminus, and to amend as to northern terminus. Q. S. Lancaster Co., April Sess., 1927, Minutes 180.

      Fred. S. Miller, Charles L. Miller and John M. Groff, for rules.

      John A. Coyle, contra.
    Nov. 21, 1927.
   Henry, P. J.,

52nd judicial district, specially presiding,

Two questions are involved in the three rules before us:

First. Where act of assembly and court rule provide that a second proceeding for a contemplated road shall not be received or acted upon for two years from the time of entering a final decree in the earlier proceeding, will the court entertain a petition and appoint viewers for the laying out of a public road which is presumably a substantial part of the proposed road upon which viewers have reported adversely on the day the new petition is presented? And

Secondly. Where a terminus of the proposed road is not fixed as required by the act of assembly, can the petition be amended after the expiration of the time fixed by court rule for the presentation of petitions for the appointment of viewers to lay out a public road?

On April 18, 1927, viewers reported adversely upon a petition to lay out a public road in Lancaster Township from a fixed point of beginning on the south side of the Lancaster and Columbia Turnpike, running thence south-wardly to a fixed point of ending in a public road, known as the Abbeville Road or Herr’s Lane; and on the same day a petition, signed by a few of those who signed the first petition, but mostly signed by others, was presented, asking for the appointment of viewers to lay out a public road from the same point of beginning as in the prior petition, and running thence southwardly, but ending at “the north side of Maple Avenue as now laid out and dedicated,” upon which a rule issued to show cause why viewers should not be appointed. To this rule an answer was filed, setting forth, inter alia, that the termini of the proposed road were not sufficiently fixed in the petition; that the petition asks for the laying out of the same road, or a substantial part thereof, against which the viewers had reported adversely, and that the petition could not be entertained because in violation of the rule of court which prohibits the bringing of a new petition within two years from the rejection or adverse report upon a petition for the opening of the same road, or a-substantial part thereof.

Rule 11, section 10, of the Rules of the Quarter Sessions Court of this county provides that “where a procedure for the road or bridge is filed, another application for such contemplated road or bridge shall not be received or acted upon for two years from the term at which such road or bridge was finally rejected. This, however, shall not apply to any case where the report is set aside for informality.” This rule accords with the Act of Assembly of May 25, 1907, P. L. 233, which provides that “in all cases where the action of the court or grand jury shall be adverse to the grant of the new road or bridge, no new petition to view the same site, or one substantially the same, shall be granted by the court until after the expiration of two years from the final decree of the court on the former application.”

The road proposed in the second petition begins at the same point as that in the former proceeding, and from there runs in the same direction, but the ending point of the road proposed in the second petition is somewhere between the beginning and ending points of the first petition. From the draft submitted to the court at the time of the argument, it is very evident that the only practicable way of laying out the road under the second petition is to cover precisely the same ground as would have been covered in the first proceeding, and counsel for the petitioners frankly admitted this to be so, so that the second petition is for the opening of substantially a part of the same road as that embraced within the first petition. The conclusion follows that the second proceeding is an attempted evasion of the quoted rule and act of assembly, by changing one of the termini of the proposed road. It is true a proposed road is only recognized by its termini, but where, as here, the proposed roads begin at the same point and run in the same direction, and, as a matter of fact, are already opened and being used as streets, it is very apparent that both must be laid out in part over the same ground. The petitioners rely upon Towamencin Road, 10 Pa. 195, and Franconia Township Road, 78 Pa. 316, to sustain the second petition, taking the position that, under these decisions, a proceeding for a proposed road has not “finally failed” until it has been disapproved by succeeding viewers with the concurrence of the court, and with the two years only beginning to run from such final failure, new petitions may be presented pending the beginning of the two-year period. In both of these cases the proceeding was set aside for technical defects; but there was no adverse report upon the merits, and, of course, the rule of court or act of assembly would not apply, and, consequently, they are not authority in the present ease, excepting as the dictum of the court might be suggestive of its views. The position taken by the petitioners as to the effect to be given to said rule and statute is wholly untenable. The purpose of the rule and statute is to prevent continued and vexatious petitions for the opening of the same proposed road, and this law must be given a reasonable interpretation to effect this purpose. Irrespective of the rule and act of assembly, we would hold that there could be no new proceeding for the opening of the road while a prior proceeding for the opening of a substantial part of the same road has not met final disposition, and our conclusion is that such second proceeding cannot be entertained by the court until the first proceeding has been finally rejected and for a period of two years thereafter.

The second question raised is also conclusive against the petitioners. The Act of April 23, 1909, P. L. 142, provides that all petitions for the laying out of a public road “shall fix definitely the point of beginning and the point of ending, mentioned in said petition, by giving the exact distance from an intersecting public road, street or railroad already opened.” The second petition was filed April 18, 1927, and did not fix the ending point, as required by the Act of 1909, so that the petition was fatally defective in lacking this jurisdictional fact. On June 20, 1927, petitioners offered an amendment, in which the ending point was definitely fixed, as required by the said act of assembly, whereupon a rule issued, to which an answer was filed. Subsequently, a second petition to amend was presented for the purpose of further clarifying the beginning and ending points of the proposed road, upon which another rule issued, to which no answer has been filed. It is urged that the amendments cannot be allowed because of Rule 11, sections 1, 2 and 3, of the Rules of Court, which provide that petitions for the opening of public roads “shall be presented during the first two weeks of the regular term of court, and no petition will be heard at any of the adjourned sittings of the court.” The petitions to amend were not presented during the first two weeks of the regular term of court at which the original petition was presented, and, therefore, cannot be received, under this rule, because the first petition was defective in substance, lacking an essential jurisdictional fact, and, therefore, invalid, and any attempt to amend it would have to be brought within the two weeks’ period for the presentation of petitions for the opening of public roads, for in effect the amendment made it a new proceeding: Beaver Township Road, 29 Dist. R. 675; Adamstown Borough Road, 14 Lanc. Bar, 66; Kennedy Township Road, 50 Pa. Superior Ct. 619, 625.

In Forst’s License, 208 Pa. 578, 580, it was held that a proceeding which lacked essential jurisdictional facts was not amendable after the time in which, under the statute, the original petition must be filed.

And now, to wit, Nov. 11, 1927, the rule to show cause why viewers should not be appointed is discharged. The rule granted June 20, 1927, to show cause why an amendment to the petition should not be allowed is discharged. The rule granted Sept. 3, 1927, to show cause why the second amendment should not be allowed is discharged.

From George Ross Bshleman, Lancaster, Pa.


author: Hicks, J.,

text:
    Vincena v. Domin.

      Contracts — Marriage — Breach of contract — Damages — Measure of — Change of religion as an element.

    1. In actions for breach of promise to marry, damages have never been limited by the rules governing actions on simple contracts for the payment of money.
    2. In such cases, plaintiff is entitled to such amount as will compensate her for benefits lost or detriment suffered because of the breach and the distress, mortification, menial suffering and injury to her affections a.nd reputation which she has undergone in consequence thereof.
    3. The jury may consider as an element of damages the fact that the plaintiff changed her religion in preparation for the marriage.
    4. A verdict of $1265 will not be deemed excessive where it appears that plaintiff’s loss for moneys expended and for loss on account of ceasing employment amounted to $653.75, that she changed her religion, and that she suffered from pain, mortification and wounded feelings.
    Motion for a new trial and in arrest of judgment on behalf of the defendant in an action of breach of promise of marriage. C. P. Schuylkill Co., Nov. T., 1926, No. 322.

      D. J. Boyle and B. J. Graeff, for plaintiff; B. J. Duffy, for defendant.
    Feb. 20, 1928.
   Hicks, J.,

This is an action for breach of promise of marriage which was tried before Hon. H. O. Bechtel, late President Judge of our courts, on May 19, 1927, before a jury, in which a verdict was rendered for the plaintiff in the sum of $1265. During the course of the trial, only two exceptions were taken by the defendant to the admission of testimony, and neither of the parties took any exception to the charge of the court or to answers to the point submitted for charge. The defendant filed six reasons in support of his motion in arrest of judgment and for a new trial. Oral argument was had upon the motion, but no briefs were submitted by either party. At the time of the argument the sole question raised by the counsel for the defendant was that the verdict was excessive in the light of the testimony, and that, for this reason, a new trial should be granted.

The testimony was conflicting as to whether the contract of marriage had been actually entered into, but this matter was submitted by the court in his charge to the jury in a fair and impartial manner, and as its decision was peculiarly within the province of the jury as the triers of the facts, and they have found them in favor of the plaintiff, the court is concluded. There was ample evidence to support the finding of the jury that the defendant and the plaintiff reciprocally promised to marry each other.

No fault was found by either party with the charge of the court upon the question of damages. The court submitted the question of damages to the jury in the following language: “It is hard to say what rules should be adopted for compensation in the event that you should find that she should be compensated, but it is always wise to remember that the verdict should be a fair, just and adequate compensation for the injury that is sustained. She claims that she bought certain articles which she enumerated here to you, together with the prices which she paid for them, and that she would not have bought those but that she expected to marry this man and had intended using them in that event, and that, therefore, she ought to be compensated for that. There is not any very well-defined testimony as to the pain and suffering she endured or the humiliation which she was subjected to by his refusal to marry her after she was engaged to him, but those are matters which you can take into consideration, if you determine to find in her favor and determine what allowance should be made for them. You are not to guess at this thing. You must render a verdict on the evidence; you must determine what has been proven along that line and take into consideration what she has endured, if any, and what she should be compensated for and what that compensation should be. That is all a question for you. You are to arrive at your conclusion on the evidence; the verdict must be based on the evidence.”

The measure of damages as indicated by the court to the jury is a correct exposition of the law. In actions for breach of promise to marry, damages have never been limited by the rules governing actions on simple contracts for the payment of money; but plaintiff is entitled to recover such amount as will compensate her for the benefits lost or detriments suffered because of the breach, and the distress, mortification, mental suffering and injury to her affections which she has undergone in consequence thereof: 9 Corpus Juris, § 92; Leckey v. Bloser, 24 Pa. 401. The damages recoverable for the breach of a marriage contract are such damages as will place the plaintiff in as good a position pecuniarily as she would have been in if the contract had been fulfilled. The damages will include compensation for pain, mortification and wounded feelings, injury to the affections, the loss of time and expenses incurred in preparation for the marriage, injury to health, the length of time the marriage engagement existed, and consequent injury to feelings or reputation due to the breach of the contract: 3 Elliott on Contracts, § 2196:

The evidence in this case showed that the plaintiff suffered the loss of about $570 in giving up her position, losing work and being compelled to pay on that account board for the same length of time at $30 a month. In addition to this, the plaintiff testified to wearing apparel, linens, etc., which she purchased in reliance upon the defendant’s promise to marry and in anticipation of her marriage, which expenditures amounted to the sum of $83.75. The uncontradicted evidence in the case conclusively showed that her actual loss for moneys expended and her loss on account of ceasing employment totaled the sum of $653.75. In addition to this, she was entitled to compensation for pain, mortification and wounded feelings and injury to the affections. She had changed her religious faith so that there might be no obstacle from a religious point of view to the consummation of the marriage contract, and, therefore, severed her relationship with the Lutheran Church of which she was a member and took instruction in the Catholic faith. All of these matters were proper for the consideration of the jury under the charge of the court, and we cannot say that the jury was actuated by prejudice, passion or partiality in finding a verdict of $1265 under the circumstances in this case.

The motion in arrest of judgment and for a new trial is overruled and the prothonotary is directed to enter judgment in the plaintiff’s favor in accordance with the verdict of the jury upon payment of the jury fee.

From M. M. Burke, Shenandoah, Pa.


author: Stock, J.,

text:
    Eichelberger’s Estate.

      WiUs — Notice of intention to contest mil — Distribution ivithin two years of testator’s death.

    1. Under the Fiduciaries Act of June 7, 1917, P. L. 447, legacies are payable at the expiration of six months from the date of the testator’s death, and after said period distribution may be ordered by the Orphans’ Court.
    2. Although the Register of Wills Act of June 7, 1917, P. L. 415, allows two years from the date of the probate or refusal of the probate of a will to appeal from the decree of the register, yet, meanwhile, valid administration of the estate may proceed.
    3. A disappointed heir cannot delay the administration of an estate by giving notice to the executor of his intention to appeal from the probate of the will without taking any further action _ in the matter.
    4. Where a will was duly probated and an heir of the testatrix notified the executors of an intention to appeal from the probate, but did not file an appeal, and the executor, six months after the testator’s decease, filed an account and the balance was distributed by an auditor to the legatees and the report was confirmed, the court made an order, within two years of the testator’s death, directing payment of the legacies to the distributees.
    Rule on the executor of Amelia H. Eichelberger, deceased, to show cause why payment of legacies awarded to the petitioners by the auditor distributing the balance on the account of said executors should not be paid. O. C. York Co.

      Ehrehart & Bange, for petitioners.

      Cochran, Williams & Kain, for respondents.
    Dec. 23, 1927.
   Stock, J.,

The executors of Amelia H. Eichelberger, deceased, administered their trust with reasonable promptness and filed their first and final account, which was confirmed absolutely. An auditor was appointed by this court to distribute the balance on their account. This auditor performed his duties, and on Oct. 10, 1927, filed his report containing a schedule of distribution, which report was confirmed nisi on the date of filing and subsequently was confirmed absolutely. On Dee. 12, 1927, a petition on behalf of three of the distributees was presented to this court, setting forth these facts and averring, in addition, the several amounts of the awards made to them, that said three distributees had executed proper releases to the executors, which were tendered to one- of them and payment of their awards demanded, which payment was refused by the executors. They, therefore, prayed for a rule upon the executors to pay these awards. A rule was granted, returnable forthwith, and respondents filed their answer the same day. After admitting the facts contained in the petition, respondents averred that Amelia H. Eichelberger, the decedent, died Sept. 4, 1926, leaving a last will and testament and codicil, which were duly admitted to probate and letters testamentary thereon granted to the respondents. Certain heirs-at-law and next of kin of the decedent, who were disappointed by this will and codicil, threatened to appeal from the decree of probate of said will, retained counsel, prepared to make contest, and had so notified respondents. No appeal from said decree of probate has been taken, but the respondents aver that under section 16 of the Register of Wills Act of June 7, 1917, P. L. 415, the time for appeal does not expire until Sept. 7, 1928, and that, therefore, they cannot with safety to themselves pay out and distribute the estate under the provisions of said will and in accordance with the awards made by the auditor. They express themselves ready and willing to comply with such order as the court may make in the premises, provided they are protected in so doing, and further pray that the petition be treated as having been filed on behalf of all the distributees set forth in the auditor’s report. Argument was had on the petition and answer, taking all the facts therein averred as true without making formal proof.

The Fiduciaries Act of June 7, 1917, P. L. 447, contains the following provisions : Legacies, unless otherwise provided in the will, are due and payable at the expiration of six months from the date of testator’s death: Section 21. “After the expiration of said period, distribution may be ordered by the Orphans’ Court having jurisdiction of the accounts of the executor or administrator, on petition of any person having an interest in the assets to be distributed, or on petition of any creditor of the decedent:” Section 49 (a). This provision gives this court ample authority to make the order prayed for. Where distribution is awarded by the Orphans’ Court, after audit and confirmation of the account of the fiduciary, “such decree of distribution shall protect the executors or administrators from personal liability with respect to the property so distributed:” Section 49 (b). After settlement and confirmation of the account of the fiduciary and distribution made, the fiduciary may be discharged by the Orphans’ Court from the duties of his appointment and his sureties be discharged from further liability with respect thereto: Section 52 (a).

The Register of Wills Act of June 7, 1917, P. L. 415, provides as follows: “The probate or refusal of probate by the register of the proper county of any will, or any other paper purporting to be a will or codicil thereto, shall be conclusive as to all property, real or personal, devised or bequeathed by such will or codicil, or other paper, unless within two years from the date of sueh probate or refusal of probate those interested shall appeal from the decree of the register, as herein provided:” Section 16 (a). “From all the judicial acts and proceedings of the several registers, including all decisions granting an issue devisavit vel non, in a contest concerning the validity of a will, appeals may be taken to the Orphans’ Court of the respective county within the term of two years:” Section 21 (a). “No appeal from any decree of the register concerning the validity of a will or the right to administer shall suspend the powers or prejudice the acts of any executor or administrator to whom letters have been granted:” Section 21 (b).

The provisions in these two acts, when read together, are not inconsistent. As to such property, real or personal, which has been administered and distributed in accordance with the provisions of the Fiduciaries Act within a period of two years from the date of probate, such probate is conclusive; and as to all property, real or personal, without regard to its distribution in accordance with the Fiduciaries Act, the probate is conclusive after two years from the date of such probate. While the decree of probate remains unap-pealed from, it is binding and effective as to all acts done thereunder. If any contestant stands by and allows a distribution to be made before taking his appeal, he suffers a loss due only to his own laches. The Orphans’ Court, in making distribution within two years from the date of probate, is acting collaterally with respect to the question of the validity or the invalidity of the probate, and thus, for all purposes other than in the case of direct attaek, the probate is conclusive. “While his [register’s] decision stands unappealed from, it is conclusive and cannot be reversed and set aside by the decisions of the register of another county:” Schoenberger’s Estate, 139 Pa. 132, 142. A contestant acting promptly and in good faith would have the right to ask for a postponement of distribution until his contest should be decided: Gilkeson v. Thompson, 210 Pa. 355, 360. Unpaid creditors of the estate, who may hereafter present and prove their claims, cannot proceed against the dis-tributees or the executors to obtain a refund of any moneys already distributed by court order, but can only have recovery against assets not appearing in the account, the balance on which has been distributed: Frick’s Estate, 277 Pa. 242, 249. “The claims of creditors are superior, of course, to the rights of heirs or distributees:” Robeno v. Marlatt, 136 Pa. 35, 42. Where, on appeal from the register’s decree of probate, the probate and letters testamentary were revoked and letters of administration granted, which decree, however, was subsequently reversed by the Supreme Court, such reversal did not affect anything done under the letters of administration. Chief Justice Lowrey says (page 466) : “We do not hereby affect anything done under the letters of administration. So far as the estate has been properly administered by the administratrix, it must stand as administered and she must account according to law. The executor will have power only over so much of the estate as remains unadministered:” Patton’s Appeal, 31 Pa. 465.

Hinkle v. Eichelberger, 2 Pa. 483, is relied on by respondents as authority for the rule that payment of a legacy subjects the executor to liability for the amount thereof if the will under which the legacy was derived is set aside. This is the rule where the payment by the executor is voluntary and not made under the protection of an order of court. Chief Justice Gibson states at page 484: “But he [the executor] paid it [the legacy] voluntarily, as well as with full knowledge of the circumstances.” And the inference from this and other parts of the report of the case is that the legacy was paid during the pendency of the contest over the validity of the will, and the very question involved in the appeal was the incompetency of the witness to testify at the trial of the issue devisavit vel non, because of his interest due to such payment having previously been made. There would seem to be no ground to extend the authority of this case to fix the liability of the executor beyond voluntary payments of legacies.

An absolute decree of the Orphans’ Court directing distribution protects the executor or administrator who makes payments in conformity therewith: Charlton’s Estate, 86 Pa. 149; 88 Pa. 476; Gormley’s Estate, 154 Pa. 378; Ferguson v. Yard, 164 Pa. 586, 595; Piper’s Estate, 208 Pa. 636; White’s Estate, 249 Pa. 115; 254 Pa. 98. The final confirmation of the report of an auditor appointed to distribute, containing a schedule of distribution, aets in effect as an order upon the fiduciary to distribute. However, an absolute decree directing distribution is desired and will be made. As the executors have acted in good faith, without delay and with an evident purpose to secure the protection of the court, no allowance of interest will be made, and the order will be made general in scope to include all distributees.

And now, to wit, Dec. 23, 1927, the rule upon the executors to pay legacies is made absolute, and the executors are ordered and directed to pay forthwith the several awards to the several distributees respectively, as set forth in the schedule of distribution contained in the report of the auditor filed Oct. 10, 1927; and the payments in distribution made by the executors as advancements on account of legacies prior to the filing of said auditor’s report are confirmed; all such payments to be made without interest, and the costs of this proceeding to be paid by the estate out of an undistributed balance reserved for the payment of taxes.


author: BaldRige, Att’y-Gen.,

text:
    Corporations for Holding Stock.

      Corporations — Incorporation, — Holding stocks of other corporations — Lawful business — Acts of July 9, 1901, and May 11, 1909.

    1. A corporation may properly be incorporated under the Acts of July- 9, 1901, P. Li. 624, and May 11, 1909, P. L. 515, for the purpose of purchasing, holding and selling the stocks of other corporations, either separately or in conjunction with other characters of securities and investments, provided that such corporation is created to transact but a single character of business.
    2. The purchasing, holding and selling of stocks of other corporations is a lawful business within the meaning of the Acts of 1901 and 1909.
    Department of Justice. Opinion to Hon. Charles Johnson, Secretary of the Commonwealth.
    Dec. 15, 1927.
   BaldRige, Att’y-Gen.,

This department is in receipt of your letter of Dec. 12th, in which you ask to be advised whether a corporation may properly be organized under the laws of Pennsylvania for the purpose of purchasing, holding and selling the stocks of other corporations, either separately or in conjunction with other characters of securities and investments, provided, of course, that the corporation is created to transact but a single character of business. Or, in the specific case before you, whether the inclusion of the word “stocks” is proper in the following statement of purpose: “Said corporation is formed for the purpose of purchasing, acquiring, investing in, holding, selling and dealing in stocks, bonds, debentures, notes, mortgages, leases, obligations, contracts and cognate securities or evidences of indebtedness, and the transaction of all such business as is necessary and incidental thereto.”

The Act of July 2, 1901, P. L. 603, provides: “That hereafter any corporation, organized for profit, created by general or special laws, may purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of, the shares of the capital stock of, or any bonds, securities or evidences of indebtedness created by, any other corporation or corporations of this or any other state, and while the owner of said stock may exercise all the rights, powers and privileges of ownership, including the right to vote thereon.”

There is, under the terms of the act, no limitation whatever upon this power; it is possessed by any corporation organized for profit; it need not be any particular type of profit corporation; the stocks purchased and held need not be those of any special character of corporation, and there is no upward limitation in the amount of stocks that any corporation for profit may hold. However, it does not necessarily follow that because a corporation for profit may, as an incident to its main purpose, possess the power to hold stocks of other corporations, it may be incorporated for this particular purpose. We must look for legislation to authorize incorporation for such a purpose, and we find it in the “Any Lawful Business” Act of July 9, 1901, P. L. 624, and the “Any Lawful Purpose” Act of May 11, 1909, P. L. 515. The Act of 1901 provides that corporations may be organized “for the transaction of any lawful business not otherwise specifically provided for by act of assembly.”

The Act of 1909 provides that a corporation may be organized “for any lawful purpose not specifically designated by law as the purpose for which a corporation may be formed.”

In this State we find no decision of the courts, or opinion of this department, directly involving the question before us. Exactly the same question, however, was raised and passed upon in the case of Dittman v. Distilling Co. of America, 64 N. J. Eq. 537, 54 Atl. Repr. 570. There it was held that a corporation created for the purpose of holding stock and controlling the operations of other corporations was organized for a “lawful purpose” within the meaning of the New Jersey Corporation Act authorizing incorporation for “any lawful business or purpose whatever.” Vice-Chancellor Emery said: “The only theory upon which the formation of corporations for the purpose of holding stock of other corporations can be held not to be a ‘lawful purpose’ within the meaning of the act is that an authority to own the stock and control the management of other corporations must be given expressly and in terms in the section authorizing the formation of companies, in order to be lawful. This power to own and control stock of other corporations is expressly given by a subsequent section to all corporations, when organized, and to the same extent as individuals. Such ownership of stock is, therefore, a lawful act. ... It would seem that the ownership of stock in other corporations, either alone or in connection with other objects, as the purpose of the corporation, is a purpose of incorporation authorized by the act.”

This New Jersey case does not stand alone. With ample citation of authorities from many states, we find the following statement in Cook on Corporations (8th ed.), page 1071: “Where the statutes of a state authorize incorporation for any legal purpose, incorporation may be had. for buying and selling shares of stock in other corporations.” And to the same effect, see Fletcher Cyclopedia, Corporations, § 129.

John F. Whitworth, formerly Chief of the Corporation Bureau in the office of the Secretary of the Commonwealth, in his work entitled “Opinions, Corporations,” at page 26, states that, in his opinion, a charter should not be granted a Pennsylvania corporation for such a purpose.

We hesitate to disagree with the opinion of a writer whose ability we recognize and respect, but in support of his conclusion Mr. Whitworth cited the cases of People v. Chicago Gas Trust Co., 130 Ill. 268, 22 N. E. Repr. 798, decided in 1889, and Northern Securities Co. v. United States, 193 U. S. 197, decided in 1904. He placed great reliance upon that part of the opinion in the Illinois case which is purely dictum and which has since been repudiated. In Robotham v. Prudential Ins. Co. of America, 64 N. J. Eq. 673, 53 Atl. Repr. 842, Vice-Chancellor Stevenson, in an exhaustive and convincing opinion, said, inter alia: “As soon as our General Corporation Act was amended so as to permit the organization of corporations under it for ‘any lawful business whatever’ (Laws, 1865, page 913; Rev. Corp. Act, 1875, § 10), it seems plain that corporations could be created for the express purpose of acquiring, holding and dealing in stocks to the extent that such business may be lawiul. To construe the word ‘lawful’ in such a statute as this in the sense of ‘authorized’ (i. e., not ultra vires), in accordance with a dictum in the case of People v. Chicago Gas Trust Co., 130 Ill. 268, 8 L. R. A. 497, 17 Am. St. Reps. 319, 22 N. E. Repr. 798, converts the statutory definition of the lawful objects of corporations into a meaningless circle.” See, also, Cook on Corporations, supra, page 1068.

In the Northern Securities Company case, a majority of the stock of the Great Northern Railway Company and the Northern Pacific Railway Company was acquired in 1901, and when the United States Government questioned and attacked the power of the company to do this, the court held that, under the Anti-Trust Act of Congress of 1890, it was illegal for a corporation to hold a majority of the stock of two competing interstate railway corporations. In section 317, in his work on Corporations, Cook discusses this decision and directs attention to the fact that, while, under the laws of many states, corporations may legally be organized to purchase and hold the stocks of other corporations, nevertheless, having been thus legally organized, they may later conduct their business in such manner as to conflict with the Federal Anti-Trust Laws, which, of course, is an entirely different matter. As summarized by the learned author, at page 1091: “A holding company is legal and unobjectionable, where it is free from the taint of suppressing competition, and where the charter or the statutes of the state authorize the corporation to own stock in other corporations.”

I am, therefore, of the opinion that a corporation may properly be incorporated under the laws of Pennsylvania for the purpose of purchasing, holding and selling the stocks of other corporations, either separately or in conjunction with other characters of securities and investments, provided, of course, that such corporation is created to transact but a single character of business. Prom C. P. Addams, Harrisburg, Pa.


author: Schaeffer, P. J.,

text:
    Fritz v. Gehris.

      Real estate — Agreement of salet — Fee simple title — Title of grantor — Life estate or estate in fee — Wills—Construction—Contingent legatees — Parties to record.

    Plaintiff sued to recover from defendant the purchase price of real estate under an agreement of sale. The defendant admitted the agreement, but filed an affidavit of defense in lieu of demurrer on the ground that the plaintiff was incapable of giving him the title in fee simple stipulated in the agreement because she derived title from her husband by will and that the will gave her only a life estate. The will, a copy of which was attached to plaintiff’s statement of claim, provided that after the plaintiff’s death the estate was to be divided among certain named institutions. The will also contained a further contingent disposition naming intended legatees. None of such persons were parties to the record: Held, that consideration of the case should be postponed until all parties possibly interested were made parties to the suit. Leave was granted to the plaintiff to amend the pleadings by the addition of necessary parties and bringing them into court within sixty days; and in default thereof, judgment for defendant.
    Affidavit of defense in lieu of demurrer. C. P. Berks Co., Dec. T., 1927, No. 114.

      E. H. Deysher, for plaintiff; Randolph Stauffer, for defendant.
    April 12, 1928.
   Schaeffer, P. J.,

Plaintiff seeks recovery under an agreement for the sale of real estate. Defendant refused the tender of the deed offered and filed his affidavit of defense in lieu of demurrer to plaintiff’s statement of claim. Plaintiff claims title in fee simple under the will of her husband, Martin H. Fritz, deceased. Defendant refused on the theory that plaintiff took only a life estate in the property to be converted. The determination of this suit, therefore, involves and is dependent upon the interpretation of the will of said decedent.

Before determining this main issue, it becomes important and, in fact, essential, to determine a prior question, that of the effectiveness of a judgment rendered under the pleadings.

Without reciting the will, we note that while testator in the first instance gives plaintiff an absolute estate in all his property, he subsequently, in item 4, directs:

“After her death the estate is to be divided equally among the following institutions: Lutheran Orphans’ Home, Topton, Bethany Orphans’ Home, Womelsdorf, Home for Friendless Children, Beading, Home for Crippled Children, Allentown, and such other homes as my wife Ada may see fit to include, or above mentioned exclude.”

He adds a further contingent disposition, by item 5, naming intended legatees. Whether the original absolute estate is cut down by these subsequent testamentary provisions undoubtedly will require ultimate answer. When, however, such answer is made, it should have the effect of being binding against the world as to the title involved. To have such effect, all parties having any positive or possible, present or future, vested, contingent or defeasible interest in the property must have their day in court. The very question for determination, whether Lutheran Orphans’ Home and the others named have any interest in the real estate involved, must be left unsettled as to those parties, under present pleadings, for the reason that they are not now parties to the record, will not be heard, and, consequently, will not be bound by a judgment entered. After judgment entered, they would still have recourse against the grantee and their title would be determined without reference to this suit or the judgment here entered.

This action, by its pleadings, is analogous to a case stated for determination of title to real estate. Judgment, in either case, becomes effective only if all possible parties in interest are brought upon the record, have their day in court, and plead or defend tipon the facts presented. In Hoffeditz et al. v. Bosserman et al., 282 Pa. 570, 574, the Supreme Court say: “We have many times said that ‘a court should never undertake to declare title to real estate good and marketable unless all the parties in interest are present on the record’ (see Schuldt v. Reading Trust Co., 270 Pa. 363, 366; Hebron v. Magda, 280 Pa. 508, 510, 511; Smith v. Bloomington Coal Co., 282 Pa. 248); this means all parties with a substantial interest in the controversy before the court in the sense that, in order to determine the cause, their rights must be passed upon. In a case like the present, all persons ought to be made parties who, on the face of the will, have such a color or possibility of interest that the title to the property in controversy would not be marketable (in the sense of acceptable to ordinarily prudent purchasers) without their legal status first being judicially determined. We said in Hartley v. Langkamp et al., 243 Pa. 550, 555, that all parties ‘must be joined who otherwise, not being bound by the decree, might assert a demand against the principal defendant which would be inequitable after the latter’s performance of a decree in favor of plaintiff;’ and in Springfield Real Estate Co. v. Kellett, 281 Pa. 398, 400, 401, that ‘if the question for adjudication depended on a gift by will or otherwise and the point to be decided was, which of two or more donees was entitled to the fee, consideration of the case should be postponed until all parties possibly interested are given an opportunity to be heard.’ ”

In accordance with these views, and to the end that the matter may properly come before ns, leave is granted plaintiff to amend her pleadings, by the addition of necessary parties and bringing them into court, within sixty days from this date. In default thereof, judgment will he entered for defendant.

From Charles K. Derr, Beading, Pa.


author: Niles, P. J.,

text:
    Zaner v. Shearer & Co.

      Plaintiff’s statement — Sufficiency of averments — Pla,intiff’s theory of case need not be stated.

    1. The function of a plaintiff's statement is to state in concise and summary-form the material facts on which plaintiff relies for his claim, hut not the evidence by which they are to he proved, nor inferences or conclusions of law.
    2. Where a plaintiff’s statement sets forth a good cause of action, it is not necessary that it indicate a definite theory relative to the facts upon which the action is based.
    Rule to show cause why plaintiff should not file a more specific statement of claim. C. P. York Co., Aug. T., 1924, No. 175.

      Edgar S. Richardson (of the Berks County Bar) and James J. Logan, for defendant and rule.

      James G. Glessner, for plaintiff, contra.
    Dec. 23, 1927.
   Niles, P. J.,

The pleading attacked is plaintiff’s amended statement of claim in an action of trespass. The basis of the various objections urged is in effect that the statement is so indefinite, vague and lacking in particularity that it fails to meet the requirements of the Practice Act of May 14, 1915, P. L. 483.

The essential averments of fact are: That the plaintiff, Margaret A. Zaner, was the only child of Philip A. Altland, now deceased. That defendant was operating a drug store in the City of York, and on Aug. 3, 1923, sold and delivered to Mr. Altland a bottle of camphorated oil in response to his request for castor oil. That Mr. Altland, after taking the contents of the vial, became ill and died on Sept. 30, 1923, from the effects of taking the camphorated oil. That Mr. Altland believed that the vial contained castor oil, and that defendant and its employees knew that it did not, but that it contained camphorated oil, which was an injurious and fatally harmful drug, of which Mr. Altland was not informed. That plaintiff, before her father’s death, was receiving pecuniary aid from him in the sum of $1000 per year, with reason to expect a continuance of the same during his lifetime. The claim is for $10,000 damages.

These allegations of fact are sufficiently specific to sustain an action of tort for negligence.

The objection urged is that no definite theory is indicated by the plaintiff. This is not necessary.

The function of the pleading is to state in concise and summary form the material facts on which plaintiff relies for her claim, but not the evidence by which they are to be proved, or inferences or conclusions of law. Disposition as to these matters is for discussion and determination at the trial and in subsequent proceedings.

And now, to wit, Dec. 23, 1927, the rule issued Jan. 3, 1927, to show cause why plaintiff should not file a more specific statement of claim is discharged and the prayer of said petition refused, and the defendant is allowed fifteen days for the filing of his affidavit of defense, if it so desires.

From Richard E. Cochran, York, Pa.


author: Landis, P. J.,

text:
    Rhoads v. Margoshes et al.

      Partnership — Jurisdiction of law and equity — Action for amount paid into partnership by partner — Act of May lit, 1915.

    1. Where an action by a partner against copartners involves only a matter of accounting for a definite sum, the law courts have jurisdiction, equitable powers not being involved.
    2. Where, however, the plaintiff with five others constituted a firm which was subsequently reorganized by the three defendants, who employed the plaintiff for a percentage of the profits, the plaintiff cannot maintain a suit against the latter three for the amount paid in by him to the original firm and also the amount due him from the reorganized firm. He must either amend his action and bring in all the partners and strike out his claim for wages or strike out the first claim and proceed with it in equity or otherwise against all the original partners and amend his statement and ask for an accounting under section 19 of the Practice Act of May 14, 1915, P. L. 483, against the last partnership.
    Statutory demurrer. C. P. Lancaster Co., March T., 1926, No. 37.

      Harold G. Ripple and K. L. Shirk, for plaintiff.

      Charles W. Eaby, for defendants.
    Oct. 1, 1927.
   Landis, P. J.,

The statement filed in this case alleges that the plaintiff, with the defendants and others, entered into a partnership agreement dated July 19, 1921. The agreement is thereto attached. By it, Nathan Margoshes, Harvey Herr, Joseph R. Kistler, Walter G. Wenninger, John L. Buchheit and John Rhoads agreed to become partners in the business of silversmiths and pipe mounting, under the name of Lancaster Pipe Mount Company. The term of the partnership was to be from July 19, 1921, to Jan. 1, 1922, unless sooner terminated by mutual consent. Nathan Margoshes and Harvey Herr were to contribute $1699.42 in cash and stock and equipment, and Joseph R. Kistler, Walter G. Wenninger, John L. Buchheit and John Rhoads were each to contribute $849.71. In the event of any of the parties withdrawing, his interest was to be disposed of to the remaining members of the firm, and the amount of his interest was as provided for in case of the death of any of the partners, which was to be by an accounting. The parties were to draw an equal sum per week, which was to be charged against them on the books. Upon the dissolution of the partnership, after all the debts of the partnership should be paid, a true and final account was to be made between the partners, as therein stipulated.

It is stated that the partnership was dissolved on Dec. 31, 1923, and that it was then reorganized by the defendants as partners, and the plaintiff was employed by this partnership pursuant to an employment agreement. This agreement, dated Jan. 2, 1924, which is between John Rhoads, of the first part, and Nathan Margoshes, Harvey Herr and John L. Buchheit, trading as the Lancaster Pipe Mount Company, of the second part, provides that John Rhoads shall work as an employee for the partners for one year from the date of the agreement, and that the partners agree to pay him 125 per cent, of the net profits of the Lancaster Pipe Mount Company in addition to $30 per week. No settlement of the first partnership seems ever to have been made, and the plaintiff now claims that, as he paid in $849.71, and as that was a fair valuation of his interest at the time the partnership was dissolved, he can recover that amount, with interest, in this suit at law.

As to the second agreement, it is averred that he was entitled to receive $30 a week and 125 per cent, of the net profits. This would seem to be a correct proposition under the agreement. He claims that the profits amounted to about $8000, and the defendants have failed to pay him his proportionate share, less $210.18, which he has received on account.

Counsel for the defendants asserts that the remedy is by bill in equity apd not by an action at law. I think a statement of the facts as above made will not sustain this position.

First, let us see whether the original partnership can be settled in this way. It is true that, after allowing for the debts as provided for in the partnership agreement, the plaintiff is entitled to a share of the profits, if there should be ascertained to have been any made by the partnership.

Under section 13 of the Act of June 16, 1836, P. L. 789, it is declared that the “several Courts of Common Pleas shall have the jurisdiction and powers of a court of chancery so far as relates to . . . (V) the supervision and control of all corporations, other than those of a municipal character', and unincorporated societies or associations and partnerships.” But by the Act of Oct. 13, 1840, § 19, P. L. (1841) 7, it is further provided that the “several . . . Courts of Common Pleas within this Commonwealth shall have all the powers and jurisdiction of courts of chancery in settling partnership accounts and such other accounts and claims as by the common law and usages of this Commonwealth have heretofore been settled' by the action of account-render, and it shall be in the power of the party desirous to commence such action to proceed either by bill in chancery or at common law.” In Kauffman’s Appeal, 65 Pa. 383, it was held that “where no decree is sought but one for the páyment of money which can be as readily recovered in an action at law, the case is not one of specific relief, and consequently does not fall within the equity head of granting relief where a recovery in damages would be an inadequate remedy.” To the same effect is Sprigg v. Commonwealth Title Ins. and Trust Co., 206 Pa. 548.

As, then, this is only a matter of accounting and this court has already taken jurisdiction, we can see no good reason why it should not have power to settle the controversy if the same is before us in proper form.. The trouble, however, with the proceedings as presented is that this suit is against three partners, constituting a firm, whereas the original firm was made up of six persons, including himself. He cannot sue three partners for what is a joint liability of the six.

As to the second proposition, there can be no serious difficulty. The agreement between the plaintiff and the three defendants was an employment for a stipulated compensation made up of a cash weekly payment and a share of the profits. The proper practice is for the plaintiff to amend his statement and ask for an accounting under section 19 of the Practice Act of May 14, 1915, P. L. 483. It is, in my judgment, certain that a court of equity has nothing to do with such a controversy. It can be fixed in a court of law.

I am of the opinion that the plaintiff cannot pursue his two actions in one suit because they are not against the same defendants. He must either amend his action and bring in all the parties and strike out his claim for wages, or he may strike out the first claim and proceed with it by bill in equity or otherwise against all the partners. In this suit, he may, however, file a new statement against the last partnership, covering the amount of wages which shall be ascertained to be due to him under the employment agreement.

To this extent, the affidavit of defense raising a question of law is at this time sustained, but no judgment in favor of the defendants can for the reasons above given be entered. The parties have agreed to make the proper amendments and so dispose of the question raised.

Prom George Ross Eshleman, Lancaster, Pa.


text:
    Kayser v. Pennsylvania Railroad Company.

      Practice — New trial — Verdict—Excessive—Pérsonal injuries.

    1. A verdict of $15,000 is not so excessive as to require granting' a new trial, where plaintiff’s injuries were serious and painful, resulting' in the loss of the use of his right arm, with an even chance of regaining about SO per cent, of its normal use by an operation, and he had lost over $1000 in earnings up to the time of trial, and, if the operation were successfully performed, there would be a further period of recuperation, with loss of earnings amounting to about $5000, with a substantial permanent diminution of earning power thereafter.

      Railroad police — Negligence—Liability of employers — Act in course of employment.

    2. A railroad is liable for the negligence of a member of its railroad police commissioned by the Governor under the Acts of May 24, 1878, P. L. 125, and June 11, 1879, P. L. 152, where plaintiff was shot by the officer while the latter was endeavoring to arrest a third person and rescue goods belonging to the company.
    3. The officer, while making such arrest and endeavoring to rescue stolen goods, was acting in his employment and in the furtherance of the business and interests of his employer.
    Trespass for personal injuries. C. P. No. 2, Phila. Co., Dec. T., 1927, No. 11537.

      Robert M. Bernstein, for plaintiff; Francis B. Biddle, for defendant.
    July 23, 1928.
   Gordon, Jr., J.,

This is an action in trespass to recover damages for injuries resulting from the alleged negligent shooting of the plaintiff by an officer employed by the defendant company as a member of its railroad police force and commissioned by the Governor as a special officer, under the Act of May 24, 1878, P. L. 125, and the Act of June 11, 1879, P. L. 152. The case was tried, by agreement of the parties, by a judge without a jury, who rendered a verdict in favor of the plaintiff for $15,000. The defendant then filed the rule for a new trial and motion for judgment non obstante veredicto, which are now before us for consideration.

The rule for a new trial is based principally upon the contention that the verdict is excessive. In view of the injuries received by the plaintiff, however, we deem the verdict proper and are of opinion that the rule should be discharged. There is very little disagreement between the physicians on each side respecting the injuries that the plaintiff suffered. He was shot in the neck, the bullet entering the front of the lower part of the neck on the right side and severing, or doing extensive damage to, the nerves controlling the right upper arm. The result of this injury is that the plaintiff has lost almost the entire use of his arm, according to the doctors, the function of the arm being about 85 per cent, destroyed. The shooting occurred on Dec. 3, 1927, and since that date the plaintiff has been unable to do any work at his usual occupation of trucker, at which he earned from $30 to $32 a week, in addition to which he was earning at this time from $15 to $24 a week in a side line of picking glass from a dump and selling it. This makes his loss of earnings to the date of the trial about $1040. As to the future, the prognosis is poor. There is no hope of a complete restitution of the arm to its normal function, but an operation can be performed with the object of possibly improving its condition. The chances between success and failure of such an operation are described by the doctors as “50-50,” and if successful, the improvement would be only partial, that is, about 80 per cent, of the normal use. In any event, it is conceded that the patient could do no work for a year and a half or two years after the operation. This discloses an injury of a most serious and permanent character, accompanied by a certain total loss of earnings, including the period of recuperation from the operation, amounting to about $5500 and a permanent and substantial diminution of earning power thereafter. The plaintiff is thirty-one years old and, as already stated, was earning about $52 a week. Considering these facts and making a proper allowance for pain and suffering and physical crippling, we do not deem $15,000 unconscionable or excessive for such an injury.

The motion for judgment non obstante veredicto is based upon the contention that the defendant’s agent was not engaged upon its business when he shot the plaintiff, but with this contention we cannot agree. The facts, in our judgment, clearly show him to have been acting within the scope of his employment at the time. About three days before the shooting occurred, a freight car on the defendant’s lines had been broken open and some property stolen. The theft was committed by a number of young boys, some of whom were captured by the defendant’s officers. One of those taken confessed and named the leader of the gang responsible for the theft. The capture of the boys had resulted in the defendant regaining some, but not all, of the loot. On the day of the shooting, the defendant’s officer, Charles Braun, was out, with the boy who had confessed, searching for the leader of the gang, who was still at large, to apprehend him and to recover the rest of the stolen property if possible. He was tracked to a garage in the northeastern section of the city, which was located near a large public dump. He fled from the garage and across the dump, pursued by the officer. Just at this time, the plaintiff, who had been stooping over picking glass on the dump, heard the officer fire his revolver and noticed the fugitive pass within about twenty feet of him. The plaintiff then stood up and waved to the officer in an effort to warn him not to shoot. The officer immediately fired again in the direction of the fugitive, and the bullet struck the plaintiff in the neck.

The officer explained the shooting by testifying that he was shooting at the ground in the general direction of the fleeing man when the plaintiff suddenly arose out of a hollow in the dump just as he fired the last shot and too late to hold his fire. The plaintiff, on the other hand, contended that he was at all times, whether when stooping or after he had arisen, in plain sight of the officer, who could and should have seen him. The trial judge, after an inspection of the scene of the accident, has found in favor of the plaintiff’s contention, thus establishing the negligence of the officer. Even if we were inclined to do so, we could not disturb the trial judge’s finding in that regard, supported, as it is, by abundant evidence. Indeed, at the argument, the defendant itself did not dispute that the plaintiff’s injury was caused by the negligence of its officer.

Under these facts and the decisions applicable to them, it seems clear to us that the officer was acting within the apparent scope of his employment by the defendant when he was attempting to arrest the fugitive, and that the defendant is, therefore, responsible for the negligence of its agent.

The underlying doctrine of respondeat superior which governs cases of this general character is well settled in this Commonwealth, and a host of decisions might be cited in which it is pronounced in clear and unmistakable language. The case of Brennan v. Merchant & Co., Inc., 205 Pa. 258, adequately states the doctrine, by quotation from Rounds v. Delaware, etc., R. R. Co., 64 N. Y. 129, in the following language: “ ‘It is in general sufficient to make the master responsible that he give to the servant an authority, or made it his duty, to act in respect to the business in which he was engaged when the wrong was committed and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or inflicted an unnecessary injury in excess of his master’s orders. The master who puts the servant in a place of trust or responsibility and commits to him the management of his business or the care of his property is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and, the-occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another.’ Whether the negligent act was within the scope of the servant’s employment is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404.”

Clear as this statement of the doctrine is, its application to particular cases is difficult and has given rise to a number of apparently conflicting decisions. A careful inspection of the facts of each case, however, will disclose that they are in general harmony with the principle and that they can, in the main, be reconciled with each other. Thus it has been held that a conductor of a railroad company who improperly ejects a passenger is acting within the scope of his authority and his unlawful conduct renders his principal liable: McFarlan v. Pennsylvania R. R. Co., 199 Pa. 408. On the other hand, it has been held that the act of the starter of a trolley company stationed at a particular point in the line, who, within the scope of his authority, interferes with a passenger attempting to board a car of the company out of turn, and then drags him from the car, assaults and then prosecutes him, does not render the company liable for malicious prosecution, because the arrest and prosecution were not within the implied authority of the conductor: Riddell v. Philadelphia Rapid Transit Co., 80 Pa. Superior Ct. 176.

Without reviewing the vast number of cases upon this subject, it may be pointed out that they seem to fall into one or the other of two classes, namely, those involving the acts of employees generally, in which the tendency appears to be to confine the liability of the employer to instances in which the employees’ acts were either expressly authorized or clearly within their implied authority, and those in which are involved the acts of special officers of railroad and similar companies. In the latter class of cases a body of decisions has arisen in which a special rule appears to have been laid down, although the general doctrine of respondeat superior, cited above, is the governing principle upon which all such cases turn. This rule has arisen by reason of the fact that special officers of railroad companies receive their commissions, under the Act of Feb. 27, 1865, P. L. 225, from the Governor of the Commonwealth, and are vested with all the powers of policemen of the City of Philadelphia. Because of this, it was held, in Finfrock v. North. Central R. R. Co., 58 Pa. Superior Ct. 52, that such a policeman “presumptively acts as a public officer, and not as the servant or employee of the railroad company.” The case was reversed because of an improper submission to the jury of the company’s liability for an incidental assault by the officer when the arrest was made, but on the question under discussion the court said: “It is true, he may be both, as was Geiselman, and in such a case a different question may arise. But at present we are speaking of a commissioned policeman who is not, in addition, an employee or servant of the company. Confining consideration strictly to that kind of case, our conclusion is that the question above propounded must be answered in the negative. This conclusion is in accord with the great weight of authority in other jurisdictions, and there is sufficient similarity between the statutes there construed and ours to give the decisions persuasive force. Amongst these are: Healey v. Lothrop, 171 Mass. 263; Tolchester Beach Imp. Co. v. Steinmeier, 72 Md. 313, 8 L. R. A. 846; Tucker v. Erie Ry. Co., 69 N. J. Law, 19; McKain v. B. & O. R. R. Co., 65 W. Va. 233, 23 L. R. A. (N. S.) 289. The peculiar pertinency of Tucker v. Erie Railroad Company will he shown by the following excerpt from the opinion: ‘It is plain from a reading of the provisions of this statute that although these men were appointed on the application of the defendant company, received their compensation from it and were subject to be divested of their powers by its act, they were, nevertheless, state officers charged with the performance of public duties. They were, in law, police officers, constables, authorized to arrest persons guilty of criminal offenses or breaches of the peace, not only in cases where the property of the company was involved, but in every case where the crime was committed or the peace broken within the boundaries of any of the counties through which the company’s railroad ran. For the proper discharge of their official duties, as well as for the proper exercise of their official powers, they were responsible, not to the defendant company, but to the state. ... In order, therefore, to render the defendant company legally responsible for the unwarranted arrest made by them and the subsequent criminal prosecution maliciously instituted by Dwyer, it was necessary to show that their action was instigated by the company or by some of its officers or employees; that what they did was done by them as agents of the company and not solely of their own volition as police officers.’ ”

This prima facie, presumption, it was pointed out, however, may be overcome by evidence warranting a finding that the officer “was at the time engaged in special service for the company, such as guarding its property or enforcing obedience to its rules. If, in such case, it appears that the wrongful act was within the scope of such special service or employment, the fact that he also held a commission from the state will not bar recovery from the company. See, also, McKain v. B. & O. R. R. Co., 65 W. Va. 233; Higby v. Pennsylvania R. R. Co., 209 Pa. 452.”

The case just reviewed and that of Naugle v. Pennsylvania R. R. Co., 83 Pa. Superior Ct. 528, are the two most strongly relied upon by the defendant in its argument upon the motion for judgment non obstante veredicto. In the latter case, Judge Gawthrop reviews at length the Finfrock decision and applies its principles to the facts of the case before him, with a resulting reversal of the verdict for the plaintiff and an entry of judgment, in the Superior Court, in favor of the defendant. The facts of the Naugle case, however, clearly required the entry of a non-suit in the court below. The police officer there illegally arrested the plaintiff, without a warrant, as a “suspicious person.” The arrest was made upon a public street and was not directed or instigated by any officer or employee of the company, and the non-suit was entered because “the only testimony as to the powers and duties of the officers was their own. Each of them testified that he was commissioned by the Governor and paid by the company. We look in vain for any evidence of actions by them which were not fairly within the scope of the duties of railroad policemen under the Act of 1865. Nor was there any evidence that they were employed to do any other work. How, then, can it be said that the presumption that they acted as public officers was overcome?”

It will be noted that in the Naugle case the arzvest was not made upon the property of the defendant nor upon any charge which involved an offense committed to the injury of the defendant company, so that the officer could not be deemed to be acting for the protection of his employer’s property or in the enforcement of its rules. In the case before us, however, there was ample evidence to support the inference that Officer Braun was acting- in the furtherance of his master’s interests and primarily for the benefit of his master. • An arrest upon the vague charge of being a “suspicious person” in no way connected the defendant company with the subject-matter of the arrest and furnished no evidence from which an inference could be drawn that it was made for the benefit of the employer. Here, however, the attempted arrest was of a known and wanted thief who was being sought- by an officer of the company for a crime committed against the company, and in an effort, in addition, to locate and recover property of the company stolen by such thief. This clearly indicates that the officer, in attempting to make the arrest, was performing one of the very duties of his employment and was acting in furtherance, primarily, of the business and interests of his employer. It must not be forgotten that a crime had been committed against the company which had thereby suffered a loss of property, and that in performing the duties of his employment the officer whose negligence caused the injury to this plaintiff was searching for a thief through whom he had fair reason to believe his employer’s property could be located and recovered. The consequences that might have followed upon the failure of Officer Braun to endeavor to arrest the thief are not controlling considerations, but they are suggestive and illuminating in considering the question before us. The railroad company, of course, would not discharge one of its policemen who had failed to arrest a “suspicious person” upon the highway; but it would be strange indeed if such an officer were not instantly dismissed from his employment if he should report to the company whose stolen goods it was his duty to recover that, though he had searched for the thief and had found him, he had let this possible source of recovery of his employer’s property escape and should seek to justify his action upon the ground that the company had employed him to do no more than to protect its property while still in its possession. The circumstances, therefore, take this case out of that line of cases represented by the Naugle and Finfroek decisions and bring it, in our judgment, squarely within the line illustrated by Higby v. Pennsylvania R. R. Co., supra, in which all the facts and circumstances in evidence overcome the prima facie presumption that a special officer in making an arrest is acting solely in his capacity of police officer and not as agent of his employer.

Indeed, were it not for the controlling pronouncement of the court in the Finfroek and similar cases that a special officer of a railroad presumptively does not act on behalf of his employer, we would be inclined to adopt a contrary view. It seems to us that the clear purpose of the Act of 1865 was to aid public service corporations, such as railroads, in the protection of their property and the maintenance of order thereon by investing certain of their employees with general police powers, and that such powers are not primarily intended by that act to be conferred for general purposes of police regulation, but only as very proper and necessary aids in the maintenance of law and order on a class of property peculiarly open to general public resort, with the consequent danger of general public injury and disorder. As stated in the Finfroek case, the officer’s commission, which is granted on the application of the company, dies when he leaves its service; he is paid by the company and his activities are almost exclusively confined to enforcing the criminal law in. the interests of his employer. These facts would seem logically to require us: to hold the prima facie presumption to be that such an officer is acting within the scope of his employment and by authority of his master. However, the contrary rule has been established by our higher courts, and we are not at liberty to disregard it so long as it remains the law.

In conclusion, it may be noted that, notwithstanding the prima facie rule referred to, most of the decisions have sustained verdicts rendered against companies employing special officers and that it has been only in clear cases in which the acts of the officers were obviously outside the scope of their employment that this rule has been allowed to prevail. Thus, recoveries were sustained in Higby v. Pennsylvania R. R. Co., 209 Pa. 452; McGinley v. Philadelphia & Reading R. R. Co., 257 Pa. 519; Dunn v. Philadelphia & Reading Ry. Co., 65 Pa. Superior Ct. 406; Geiger v. Madden, 58 Pa. Superior Ct. 616; Duggan v. B. & O. R. R. Co., 159 Pa. 248; McFarlan v. Pennsylvania R. R. Co., 199 Pa. 408; Dunne v. Pennsylvania R. R. Co., 249 Pa. 76, and Keidel v. B. & O. R. R. Co., 281 Pa. 289; while recoveries have been denied in Berryman v. Pennsylvania R. R. Co., 228 Pa. 621; Shay v. American Iron and Steel Co., 218 Pa. 172; Zimmerman v. Adams Express Co., 240 Pa. 316, and Bunting v. Pennsylvania R. R. Co., 284 Pa. 117.

We, therefore, conclude that, under the facts as shown by the evidence in this case, from which all inferences unfavorable to the plaintiff must be excluded in considering a motion for judgment non obstante veredicto, a non-suit could not have been entered. The case was clearly for the jury and the trial judge was warranted in concluding that when the officer negligently fired the shot which injured the plaintiff he was acting within the scope of his employment and for the benefit of his employer and that the defendant is, therefore, responsible for his negligence.

Accordingly, the motion for judgment non obstante veredicto is overruled and the rule for a new trial is discharged.