text:
    Louis A. Irwin, Inc., v. McCullough et al.

      J. Andrew Frantz, for plaintiff; Guy K. Bard, for defendants.
    Dec. 31, 1927.
   Landis, P. J.,

This suit was brought by the plaintiff against the defendants upon a promissory note, which reads as follows:

“$920.00. Harrisburg, Pa., May 13, 1924.
“Three months after date we. promise to pay to the order of Office Service Co.,..................at the Mechanics Trust Company,
Harrisburg, Pa., Nine Hundred Twenty ..;.......xx/100 Dollars,
without defalcation, for value received.
“Democratic State Committee,
“Endorsed: A. E. McCullough, Chairman.
Office Service Co., Inc., E. M. Miley, Sec’t’y.
M. P. Hinkle, See.-Treas.”

It is averred that at maturity the note was presented by the plaintiff for payment and demand was made upon the defendants, but that payment was refused. The affidavit of defense filed by the defendants alleges that they are not liable because they acted as agents within the scope of their authority, revealing their authority, and that the plaintiff must look to their principal for the money; that neither of the defendants was a member of the Democratic State Committee, but that they were elected chairman and secretary, respectively, as the agents of the Democratic State Committee. The second proposition cannot be considered at this time, as the supposed defect does not appear in the record, and only for a defect shown in the statement can a decree be entered under an affidavit raising a question of law.

Are, then, the defendants liable personally on the above-recited note? I do not think that this question is doubtful. In Franklin Paper Co. v. Gorman, 76 Pa. Superior Ct. 276, it appeared that the defendant, for a political organization called The Charter Party, ordered a number of envelopes from the plaintiff. It was contended that the defendant was not personally responsible, and that the plaintiff must look to the organization for payment. Porter, J., among other things, said: “Any combination of electors, with sufficient coherence and organization to have acted together for a common purpose, and sufficient strength to have polled 2 per centum of the highest vote at the next preceding election, is a political party within the statutes relating to the right to put nominations on the ballot by certificate. . . . But those statutes do not constitute such a political party a corporation, nor an association, the members of which are not individually liable for the debts which they themselves contract or personally authorize. When the committee of a political party, or an officer of that committee, goes to a merchant and orders goods to be delivered at the party headquarters, the merchant is not required, in order to recover the value of his goods, to bring suit against all the members of the party, nor even against all the members of the committee; If he is required to sue all the members of the party, would it be all who held that political faith, or all that voted the party ticket at the ensuing election? Voluntary associations for social, political or charitable purposes, and the like, are not partnerships, nor have their members the powers and responsibilities of partners. The officers or a committee, or any number of members of such a party, have no right to contract debts which will be valid against every member of the party or of the committee from the mere fact that he is a member of the party or of the committee. But those who make a contract not forbidden by law are personally liable, and all are included in such liability who assented to the undertaking. But they cannot complain if the plaintiff fails to include every one in the action who is liable, or fails to discover proof against every one included: Ashe v. Guie, 97 Pa. 493.” Again, in Dunlap Printing Co. v. Ryan, 275 Pa. 556, the action was brought against the defendants as an unincorporated association, under the name of the “Ryan Campaign Committee.” It was held that “the members of unincorporated associations, other than those within the provisions of. the Act of April 28, 1876, P. L. 53, are individually liable for the debts of the organization which they contract or authorize, but not otherwise.” In Wilmoth v. Hensel, 151 Pa. 200, a point was submitted and refused, which read: “The offer of reward was made by the defendant in his representative capacity, as chairman of the committee, and he is not individually liable, and the verdict should be for the defendant.” The answer was assigned for error, but while that point was not discussed in the opinion of the Supreme Court, the case was affirmed. I do not think the case of Markley v. Quay, 8 W. N. C. 145, is the rule of law in Pennsylvania at this day.

The affidavit of defense raising a question of law must, therefore, be overruled, and the question is decided against the defendants, and the defendants are ordered to file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days of the filing of this opinion.

Affidavit of defense overruled.

From Georgre Ross Eshleman, Lancaster, Ra.


source: Caselaw Access Project

author: Hare, P. J.,

license: Public Domain

text:
    Geiselman v. Roaring Spring Blank Book Company et al.

      Peter P. Jurchat, for plaintiff; Samuel I. Spyker, for defendants.
    Dec. 19, 1927.
   Hare, P. J.,

This case presents for solution a novel problem. Persistent investigation has not revealed any recorded decision precisely in point. The proven facts are that the claimant was an employee of the defendant. She sustained an accident on April 16, 1920, which caused an impairment of the use of her left hand. The parties deemed the disability to be total and a compensation agreement was executed on that basis, in which it was provided that the claimant should receive compensation at the rate of $6 per week from and after April 26, 1920. Compensation was paid to June 13, 1920, the claimant having certified in her final receipt that disability terminated on that date. She then returned to her employment and continued therein, at the same wages she received before the injury, until Dee. 28, 1921, at which time she presented her petition for reinstatement of the compensation agreement. An order of reinstatement was entered and compensation directed to be paid from the date of the petition and to continue until disability ceased or changed in extent, but not to exceed a period of 175 weeks.

On May 4, 1922, the insurance carrier applied for a cancellation of the agreement, alleging termination of the disability. To this petition the claimant filed an answer, denying recovery from the injury sufficient to resume her employment and requesting a modification of the agreement, with credit for compensation already paid. This controversy was concluded by the parties in an agreement providing for the payment of compensation for partial disability at the rate of 99 cents per week for a period of 300 weeks, or until the partial disability terminated, if the termination thereof occurred prior to the expiration of that period. Compensation was paid in accordance with the terms of this agreement until Jan. 25, 1926. In condensed form, we have this classification of disability and schedule of payments:

Claimant was injured April 16, 1920.

From that date, compensation for total disability was paid to June 13, 1920, a period of eight weeks.

From the last date, no compensation was paid until Dec. 28, 1921, a period of eighty weeks.

From the last date, compensation for total disability was paid to May 3, 1922, a period of eighteen weeks.

From said date, compensation for partial disability was paid to Jan. 25, 1926, a period of 194 weeks.

The sum total of these periods is 300 weeks, and the compensation for partial disability during the period of 300 weeks, established by the Compensation Act, is computed by the appellant in the order and by the classifications just stated.

Upon the assumption that there had been full compliance with the terms of the agreement for partial compensation, payments were discontinued on Jan. 24, 1926, which date was 300 weeks subsequent to the injury. The claimant then presented her petition to the Compensation Board for a review of the agreement, which resulted in an order by the referee setting aside the supplemental agreement for compensation for partial disability, reinstating the original and modifying the terms thereof.

Upon appeal from the order of the referee, the Workmen’s Compensation Board modified the order and directed compensation to be paid for partial disability at the rate of 99 cents a week, beginning May 3, 1922, payments to continue until the disability ceases or changes in extent, not to exceed, however, a period of 300 weeks from May 3rd, if partial disability continues that long, with proper deduction for payments for total and partial disability previously made.

All the jurisdictional facts either have been conceded or sufficiently proven. This appeal presents this narrow legal question: If partial disability immediately follows total disability, which total disability was preceded by a period of no disability, under section 306, paragraph (b), of the Act of June 2, 1915, P. L. 736, as amended by the Act of June 26, 1919, P. L. 642, shall there be a credit of the number of weeks during the interim, period of no disability on the period of 300 weeks, specified in the act, during which compensation shall be paid for partial disability?

Had the accident from which the disability resulted occurred prior to Jan. 1, 1920, the right of the claimant to compensation for partial disability would have been limited to the period of 300 weeks immediately following the fourteenth day of the total disability. Intervening periods of total disability, or periods during which the claimant was not at all disabled, would have been entirely immaterial. The right to compensation would have expired, in the language of the statute, at the expiration of “three hundred weeks after the fourteenth day of such disability:” Ludington v. Russell Coal Mining Co., 90 Pa. Superior Ct. 318.

The legislative intent and the appropriate application of the provisions of the statute have been so frequently stated by our appellate courts, and recently reiterated in the case of Bausch v. Fidler, 277 Pa. 573, that further discussion would not serve any useful purpose. The legislature, by the Act of June 26, 1919, P. L. 642, did not leave open to conjecture the intent to change the period of compensation for partial disability. It has expressed such intent in clear, definite and unequivocal language which is self-explanatory. It declared that “this compensation (for partial disability) shall be paid during the period of such partial disability; not, however, beyond three hundred weeks after the tenth day of such partial disability;” that is, from and after the tenth day following the beginning of partial disability. The date upon which total disability began is not of any significance.

Partial disability is compensable, under the statute, so long as it exists, not exceeding 300 weeks. No doubt, the draftsman of the act had in mind that there might be intervening periods when there would not be disability, for paragraph (a>) provides for payment of compensation only during the first ,500 weeks after the tenth day, unless such disability should cease prior to the expiration of that period. Paragraph (b), covering disability of partial character, provides for compensation only during the period of 300 weeks immediately following the tenth day of such partial disability. These are periods of limitation as to maximum time and amount of compensation, fixed in accordance with the nature and character of the disability. They do not describe or define the reductions allowable or credits to be made in the event that one class of disability is followed by another. The last sentence in each paragraph prescribes the precise method of determining the proper reduction for a preceding disability. The portion of paragraph (b) pertinent to this issue is, “should total disability be followed by partial disability, the period of three hundred weeks mentioned in this clause shall be reduced by the number of weeks during which compensation was paid for such total disability.” The direction is not that the period prescribed for partial disability shall be reduced by the number of weeks intervening between the inception and cessation of such disability, but by the number of weeks during which compensation was actually paid. The claim for reduction must rest upon payment. The claimant has received compensation for total disability during twenty-six weeks, and for partial disability during 194 weeks, or an aggregate of 220 weeks. She is entitled to receive compensation for partial disability during the additional period of eighty weeks at 99 cents per week.

Now, Dec. 19, 1927, the exceptions to the findings of the Workmen’s Compensation Board are overruled, the appeal dismissed at the cost of the appellant, and the award of the board is hereby confirmed and judgment is directed to be entered in favor of the claimant and against the defendant in the sum of $79.20. The prothonotary is hereby directed to certify this judgment to the Workmen’s Compensation Board.

From Robert W. Smith, Hollidaysburg, Pa.


author: Bechtel, P. J.,

text:
    Lehigh Valley Railroad Co. v. Schuylkill Railway Co.

      Otto E. Far quinar, for plaintiff; A. S. Shay, for defendant.
    Dec. 19, 1927.
   Bechtel, P. J.,

The plaintiff filed its declaration in this case, wherein, after setting forth that the parties to the action are corporations, it is averred, inter alia, that the tracks of the defendant company cross the tracks of the plaintiff on the public highway in the Borough of Ashland.

That the crossing was originally constructed under an agreement dated Nov. 26, 1892, between the Lehigh Valley Railroad Company and the Philadelphia & Reading Railway Company, lessee, and the Schuylkill Traction Company, lessee of the Mahanoy City, Shenandoah, Girardville and Ashland Street Railway Company.

That the said Mahanoy City, Shenandoah, Girardville and Ashland Street Railway Company leased unto the Schuylkill Traction Company its railway, including said crossing, by lease dated Jan. 6, 1893.

That by deed of release, dated April 12,1905, the Schuylkill Traction Company surrendered unto the Mahanoy City, Shenandoah, Girardville and Ash-land Street Railway Company the railway leased unto it under the said lease of Jan. 6, 1893.

That by deed dated April 12, 1905, the Mahanoy City, Shenandoah, Girardville and Ashland Street Railway Company conveyed unto the Schuylkill Railway Company, the defendant above named, its street railway, including said crossing. These different leases were duly recorded.

That from the date of the installation of the crossing until April 12, '1905, the Schuylkill Traction Company continuously operated its cars over the same. From that date, the defendant company has continuously and is now operating its cars over said crossing and from time to time maintains and repairs the same.

That under the agreement of Nov. 26, 1892, it became the duty of the party of the second part to maintain said crossing.

That by reason of the fact that the defendant company, since it acquired the street railway under the lease of 1905, as aforesaid, has continuously used said crossing and from time to time repairs the same, it, therefore, obligated itself to maintain said crossing according to the terms of said agreement of Nov. 26, 1892.

That the defendant company failed to keep the frogs and other equipment in said crossing in good repair, and that the same, on or about October, 1921, impeded and made unsafe the operation of the plaintiff company’s trains over said crossing; whereupon the said plaintiff company was compelled to place new frogs in said crossing, for which the defendant refused to pay, hence this suit.

To this statement of claim an affidavit of defense has been filed raising questions of law. The defendant claims that the plaintiff is subject to have its railroad crossed by other railways whenever the public’s interest requires such crossing. The place and manner and expense of same are not matters of private contract. No contract between railway parties can be made except subject to the right of the public to have these matters regulated under the Act of June 19, 1871, P. L. 1361, and the Act of May 14, 1889, P. L. 211.

It is also averred that the plaintiff’s statement is insufficient, in that it does not aver which company caused the frog to require repairs. It is claimed that the defendant was not a party to the original contract, and, hence, is not bound to maintain the crossing.

It is also claimed that the contract is nudum pcoctum lacking consideration. The Act of 1871, supra, provides, inter alia: “When such legal proceedings relate to crossing of lines of railroads by other railroads, it shall be the duty of courts of equity of this Commonwealth to ascertain and define, by their decree, the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed; .and if in the judgment of such court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.”

The Street Railway Act of May 14, 1889, § 18, P. L. 211, provides: “Any company incorporated under the provisions of this act shall have the right, in its construction, to cross at grade, diagonally or transversely, any railroad operated by steam or otherwise now or hereafter built.”

In the case of Western New York & Penna. Ry. Co. v. Buffalo, Rochester & Pittsburgh Ry. Co., 193 Pa. 127, it is said: “The learned judge below was entirely correct in holding that the Act of June 19, 1871, § 2, P. L. 1361, in relation to the regulation of grade crossings by courts of equity, did not control this case. The Olean, Bradford & Warren was the first, and the appellant, being the second comer, was bound to exercise its rights in subordination to the prior rights of the Olean, Bradford & Warren. Under the contract of 1882, however, the appellant acquired a status as to the existing crossing of which it has the burden of maintenance.”

This is cited approvingly in the case of Park Steel Co. v. Railway Co., 213 Pa. 322.

In Lehigh & N. E. R. R. Co. v. Del., L. & W. R. R. Co., 240 Pa. 401, it is said: “Railroad companies, as between themselves, may lawfully contract for the manner in which expenses of repair and maintenance of crossings of extensions shall be borne, but such contracts will relieve neither from answer to the Commonwealth for default.”

It will be noted in this case that while the defendant was not a party to the original agreement by virtue of which the grade crossing was established, still that crossing was incident to the construction and building of the road which defendant operates, and, under the plaintiff’s statement, which must be taken as true for the purposes of this case, it is alleged that the defendants took over said crossing, operated it and from time to time maintained and repaired the same. There can be no doubt that the crossing was built for the accommodation of the owners of the defendant company. While it may be true, as alleged by counsel for defendant, that it could have compelled the plaintiff to permit the crossing of its tracks, for which reason, he contends, the agreement is nudum pactum, still it is equally true that an agreement was entered into by the owners of the railway for the construction of the grade crossing. This crossing was taken over by the defendant company in 1905. It operated it, maintained it and enjoyed all the rights and privileges flowing therefrom. It was entirely for its benefit. The plaintiff company derived no benefit from the crossing at all. Under these circumstances, it seems to us that, even though it be true that the defendant company might have compelled the plaintiff to permit the crossing of its tracks, since that crossing was for its benefit and since it ratified the obligation of the agreement by the use, enjoyment and maintenance of the crossing, it cannot now be heard to disavow its liability for the maintenance of the same or failure of consideration in the agreement made.

In 13 Corpus Juris, § 824, page 714, it is said: “It has been held that one who knowingly accepts the benefits intended as the consideration coming to him under a contract, voluntarily made by another in his behalf, becomes bound by reason of such acceptance to perform his part of the contract.”

This doctrine is dwelt upon at considerable length in the case of the Suburban Traction Co. v. Gas Company, 230 Pa. 109, wherein it is said: “It will not do to say that the turnpike company had no power to grant a right of way beneath the surface of the road. The gas company, having accepted the right of way with the obligation to surrender it upon a failure to comply with the conditions of the grant, so long as undisturbed possession is enjoyed, is estopped from questioning the power of the turnpike company to make the grant.”

It does not seem unreasonable that the company for whose benefit the crossing was installed and existed should be the one to maintain it and keep it in repair.

In the case of Schweikert v. Mahoning & Shenango Railway and Light Co., 3 D. & C. 157, it was held:

“When the railroad has laid its tracks across a public highway and a street railway company subsequently desires to cross the same on said highway, it is the duty of the street railway company to install and maintain the crossover.

“A company operating the tracks of a street railway company is presumed to have covenanted to keep the same in repair, and, unless it produces a contract to the contrary, this presumption is conclusive.”

It seems to us that these authorities dispose of all of the points raised by defendants’ affidavit of defense after considering the same seriatim. We are, therefore, of the opinion that the amended affidavit of defense raising questions of law should be overruled.

Defendant’s affidavit of defense raising questions of law is herewith overruled and defendant is hereby given fifteen days from this date to file its affidavit of defense on the merits of the case.

Prom M. M. Burke, Shenandoah, pa.


author: Whitten, J.,

text:
    Commonwealth v. Allison.

      John L. Mollison, Marker & Rail, for plaintiff.

      John E. Kunkle, for defendant.
    Oct. 13, 1927.
   Whitten, J.,

In the plaintiff’s statement of claim it is alleged that the defendant is the father of Keats Wesley Allison, a lunatic, now deceased, who was admitted to the Dixmont Hospital of Pennsylvania and was there maintained periodically as an indigent insane patient from Dec. 23,1913, until March 16,1926; and that the plaintiff, the Commonwealth of Pennsylvania, paid to the Dixmont Hospital the sum of $1941.24 on account of the maintenance of the said Keats Wesley Allison during the period above mentioned.

In his affidavit of defense, the defendant raised only questions of law, to wit, that:

(a) The statement of claim does not allege that the defendant is legally able or of sufficient ability to pay for the maintenance of the said Keats Wesley Allison; and

(b) That the present action is not in accordance with the Act of June 1, 1915, P. L. 661, which provides the only procedure by which the legal ability of the defendant may be determined and enforced.

When an indigent insane person so confined in a State institution has an estate, the Commonwealth has the right to receive from such estate the total cost of the maintenance of such lunatic, even though such estate should thereby be entirely consumed.

When the estate of the deceased parent of such an indigent insane patient is being distributed by the Orphans’ Court, that court has jurisdiction to determine whether such estate should pay to the Commonwealth the amount expended for the maintenance of such indigent insane child: Harnish’s Estate, 268 Pa. 128.

In Harnish’s Estate, supra, the court (opinion, page 131) says: “The Act of 1915 is for the protection of the Commonwealth and refers only to indigent insane; as to that class it changes the standard of liability and method of procedure. . . . The liability imposed upon a father by “section 3 is conditioned only upon his legal ability to pay. . . . Here the statute imposed a liability upon the father for the support of his son, and, since the former’s death, the proper forum for its enforcement is the Orphans’ Court. Every essential provision of the statute was complied with. Undoubtedly, the liability of living parties in such cases is properly adjudicated in the Court of Common Pleas.”

In the instant case, the defendant is the father of a deceased indigent insane son, for whose maintenance the Commonwealth of Pennsylvania expended the sum of $1941.24. It does not appear that such indigent insane son had any estate. The Court of Common Pleas — not the Court of Quarter Sessions or the Orphans’ Court — has jurisdiction to adjudicate the rights of the parties to this suit.

However, the father of an indigent insane child is liable to the Commonwealth for the maintenance of the latter only upon condition that he “is legally able so to do.”

Section 4 of the said Act of 1915, as amended by the Act of May 10, 1921, P. L. 438, further provides that the Court of Common Pleasi “shall, upon application of the Attorney-General, make an order for the payment of maintenance to the Commonwealth . . . against the . . . father ... of any person so maintained ... in such amount as the court, in its discretion, deems proper, taking into consideration their ability to pay for said maintenance.”

The court is of the opinion that the plaintiff’s statement of claim is insufficient, in that (d) there is no averment that the defendant is “legally able” to pay such maintenance charge or that his ability so to pay has been previously determined by any court of competent jurisdiction; and (b) the Act of June 1, 1915, P. L. 661, as amended, plainly implies that the defendant’s “ability to pay” for the maintenance of his indigent insane son must be fixed— not by a jury in the course of the common law, but by the court in the exercise of its discretion, taking into consideration his ability to pay for such maintenance.

The plaintiff has not averred that the defendant’s ability to pay has been established as required by law.

And now, Oct. 13, 1927, after argument by counsel and upon due consideration, the defendant’s statutory demurrer is sustained, with leave to the plaintiff to file a proper statement of claim within fifteen days from this date. Should the plaintiff fail to file such a statement of claim within the time above limited, leave is given to the defendant to move the court to enter judgment for the defendant, or to make such other order as may be just.

Prom William S. Rial, Greensburg, Pa.


author: Stock, J.,

text:
    Erwin’s Estate.

      Robert S. Spangler, for petition; Cochran, Williams & Kain, contra.
    Nov. 28, 1927.
   Stock, J.,

The Commonwealth of Pennsylvania, on Aug. 17, 1927, filed its petition for an order of maintenance upon the York Trust Company, guardian of Mary L. Erwin, for the maintenance and support of Mary L. Erwin at the Harrisburg State Hospital.

Mary L. Erwin died Jan. 1, 1927. The York Trust Company, in her lifetime, had been appointed her guardian, she having been adjudged a lunatic and a weak-minded person by this court on Nov. 8, 1915. The York Trust Company filed its final account as guardian June 10, 1927, showing a balance due her estate of $129.31.

The unpaid balance for maintenance due the Commonwealth is $1211.69.

The County of York, on Aug. 30, 1927, presented to said guardian its claim for maintenance of Mary L. Erwin in the sum of $952.66. The statute of limitations runs against the county for such part of its claim which is for maintenance furnished more than six years from the date of filing the claim: In re Margaret MeCanna, a Lunatic, 77 Pa. Superior Ct. 1. This will restrict the county’s claim to maintenance furnished since Aug. 30, 1921, reducing the claim to $835.66.

This proceeding is under the Act of June 1, 1915, P. L. 661, as amended by the Act of May 10, 1921*, P. L. 438. Section 4, as amended, empowers the Court of Common Pleas to make an order for the payment of maintenance to the Commonwealth upon the guardian who has charge of the estate of the inmate at a hospital.

Section 7 of this act provides pro rata payment of claims of the county and Commonwealth where there is not sufficient in the estate to pay the claims in full.

The costs of these proceedings are $32.70. In accordance with the provisions of the Act of 1915, the balance on this account, after payment of costs, is directed to he paid pro rata to the Commonwealth of Pennsylvania and to the County for York for the maintenance of said ward.

And now, to wit, Nov. 28, 1927, it is ordered and decreed that the York Trust Company, guardian of Mary L. Erwin, pay the balance on its account as follows:

Costs ................................................. $32.70
Commonwealth of Pennsylvania......................... 57.19
County of York........ 39.42
Total............................................ $129.31
From Richard E. Cochran, York, Pa.


author: McDevitt, P. J.,

text:
    Commonwealth v. Mellor.

      Charles F. Kelley, Assistant District Attorney, for Commonwealth.

      Thomas J. Minniek and J. Jerome Katz, for defendant.
    July 23, 1928.
   McDevitt, P. J.,

MacNeille and Gordon, Jr., JJ.,

On March 23, 1928, at about 10 o’clock in the evening, Max T. Harrison, the manager of the Cross Keys Theatre, located at the corner of Salford and Market Streets, in the City of Philadelphia, was held up as he was leaving the theatre with the day’s receipts by the defendant and a companion named Barclay, who attempted to rob him. Mr. Harrison was accompanied by John A. Clark, a police officer, who had been assigned regularly to guard him. When Mr. Harrison and Clark ignored the defendant’s order to “stick ’em up,” the defendant discharged his revolver at Mr. Harrison, who fell to the ground mortally wounded. At about the same time, Barclay fired his revolver from an automobile used in the holdup. Officer Clark then fired two shots at the robbers, one of his bullets unfortunately hitting a young lady who was standing nearby and who died on the day of the trial of the wound so inflicted, and the other apparently hitting the car in which the defendant and Barclay were making their escape from the scene of the crime. The defendant was later arrested and indicted for the murder of Mr. Harrison in the attempt to perpetrate this robbery. The jury found him guilty of murder of the first degree and fixed the penalty at death, and he now moves for a new trial, assigning nineteen reasons therefor. For convenience of discussion, the reasons assigned may be considered under four general groups:

1. Those having to do with the examination of the jurors on their voir dire.

2. Those relating to rulings on evidence and the general conduct of the trial.

3. The refusal by the trial judge of a request for charge.

4. The admission of the confession of the defendant in its entirety, objection having been made by him to certain parts of it.

The first of these groups embraces reasons 5, 6, 7 and 8. The fifth relates to the action of the court in ruling out a question asked of a juror which called for an explanation of apparently conflicting answers. The form of the question was objectionable, and the juror’s confusion was afterwards cleared up by a proper question which disclosed no cause for challenge. The defense then challenged the juror peremptorily. This ended the ruling as a possible harmful factor of the trial. The defense was not compelled to take an unacceptable or disqualified juror; and it is well settled that a defendant is not entitled to a particular juror or set of jurors, but only to twelve disinterested and fair-minded triers of his case: Com. v. Payne, 205 Pa. 101. It is also well settled that when, as here, the defense does not exhaust its peremptory challenges, it is harmless error even to overrule a challenge for cause which should have been sustained if the juror is actually excluded by a peremptory challenge. This is one of the purposes for which the right of peremptory challenge is given.

The sixth reason relates to the sustaining of the Commonwealth’s objection to the following question, asked of a prospective juror, as to the substance of which the court ruled that the defense was not entitled to inquire: “If you were accepted as a juror in this case, and assuming that you had, after a conscientious deliberation and consideration of all the evidence, arrived at a conclusion as to the guilt or innocence of the defendant, and if, after you had arrived at that conclusion or determination, you then realized that the majority of your fellow-jurors did not coincide and agree with your verdict, would you, from the mere fact that the majority of the jurors disagreed with you, change your conclusion to the conclusion of the majority of the jurors before you were convinced beyond a reasonable doubt that the conclusion or determination that you had arrived at was the incorrect one and that the new position or determination of the majority of the jurors was the correct one?”

The twofold vice of this question is apparent. In the first place, it is an effort to find out, in advance, how the juror will act in a particular contingency and subtly to pledge him to a particular course of action; and, in the second place, it overlooks the right of a juror to yield and reform his judgment in deference to the opinion of the majority of his fellows. All that a defendant is entitled to learn on a voir dire examination is whether the juror will go into the box with an open and unbiased mind, free from fixed and preconceived judgments about the case. Beyond this he cannot inquire. When it becomes evident that the juror is not handicapped by bias or prejudice, the defendant must take his chance on the manner in which the juror will exercise his reasoning faculties and judgment. The purpose of the voir dire examination in our system of trial by jury is to get twelve average citizens who can exercise upon a problem before them their best judgment, untrammeled either by preconceptions of the facts and law or by anticipatory pledges designed to control their deliberations. In addition, as already indicated, a juror would have the right to yield his judgment to that of a majority of his fellows. This is the essence of group deliberation, and a pledge in advance to do otherwise would destroy the juror’s freedom of action.

It may be noted here that the third of the groups of reasons for a new trial contains but one reason — the sixteenth — which raises, in the form of a point for charge, the question that has just been discussed. The point is a direction to the jury substantially to the same effect as the question asked of the juror, and, for the reasons indicated, was properly refused by the court.

The seventh reason for a new trial involves the action of the court in stopping further examination of a prospective juror who had declared that he would not, under any circumstances, render a verdict carrying the death penalty. The determination of the qualification of a juror rests in the discretion of the court. The questions are asked to enable it to exercise that discretion, and it may stop profitless examination as soon as it is satisfied upon the subject. The juror had clearly and explicitly disclosed his scruples against capital punishment, and further examination would have been an unnecessary waste of time.

The eighth reason relates to the remarks made by the court to the panel during the drawing of the jury. As the examination of the panel progressed, the proportion of jurors who declared that they had conscientious objections to capital punishment grew until almost every juror claimed to have such objections, and it became evident that many were making false answers in that regard in order to avoid performing their duty. This prompted the remarks of the court, which we have examined with care and find to be free of error and fully justified by the situation confronting the trial judge.

The second group of reasons for a new trial embrace reasons Nos. 9 to 15, inclusive, and 17 and 18. Of these, the ninth, tenth, eleventh and twelfth relate to rulings made during the examination of Officer Clark, who, it will be remembered, had been assigned to guard.,the deceased and who resisted the attempted robbery. The ninth reason assigns as error the action of the court in stopping, in the following language, the repeated putting, by counsel for the defendant, of the same question to the witness. The question put was: “1 am not asking you whether he was or not, but whether you didn’t say that to the district attorney?” At this point, the court interposed and said: “Don’t pursue that line any further. The jury heard whatever he said, and we all heard it, and you don’t have to ask him whether he said this or that. Ask him any question of fact, but don’t debate it with him.” The witness had already answered the question three times, denying that he had so said, and the record shows his denial to be correct. The court, therefore, did not err in stopping further repetition of the question. The habit of unduly pressing a witness in this manner in an effort to get him to change his testimony or to trick him into a seeming contradiction is not good practice and should not be permitted.

The tenth reason alleges error in the court’s refusal to hear argument by counsel on an objection. An attorney has no legal right to argue an objection unless the court desires it. He is fully protected against error by his exception, and if the court is satisfied to rule without argument, counsel cannot demand that he be heard. Many objections are made in the course of a trial upon which it would be a needless waste of time to hear argument, and it is unseemly and destructive of the order and decorum of a trial for counsel to insist upon arguing a question after the ruling has been made.

The ruling of the trial judge, which is the subject of the eleventh reason for a new trial, was clearly correct and does not require discussion.

The twelfth reason for a new trial involves the same question that was discussed under the ninth reason, and it is sufficient, therefore, to note that, in our opinion, the ruling of the court was free from error.

The thirteenth, fourteenth and eighteenth reasons may be considered together. They involve a complaint of alleged unfair and prejudicial conduct by the trial judge. A careful examination of the record shows that the complaint is unfounded. The parts of the record covered by these assignments speak for themselves. There is nothing in them to justify the general and severe stricture on the trial judge’s conduct of the case or to support the contention that anything said prejudiced the defendant’s cause. Indeed, the court was careful to protect the defendant’s interests by withdrawing the jury from the room while it administered the “rebuke” of which counsel complains and which his repeated disregard of the court’s rulings and admonitions fully justified.

The seventeenth reason is without merit. It is merely a repetition of other reasons in this group and has been fully covered by the foregoing discussion.

The nineteenth assignment constitutes the fourth and last of the groups of reasons for a new trial. The defendant contends that it was error for the trial judge to admit in evidence his entire confession and to refuse to strike out those parts of it to which he objected. The parts objected to were those in which the defendant told, in some detail, of a number of other crimes committed by himself and Barclay during the space of a few months before the murder. Ordinarily, it would be error to admit evidence of other crimes committed by a defendant, as they would have no probative value in establishing the crime on trial. That is well settled. It is also well settled, however, that such evidence is admissible when the other crimes are so connected with the one on trial as to have evidential value in explaining intent and motive; proving a general and common design; guilty knowledge and purpose; to obviate mistake, or to show that the participants in the crime on trial were “banded together to commit crimes of the kind charged:” Com. v. Elias and Johns, 76 Pa. Superior Ct. 576; Hester v. Com., 85 Pa. 139; Com. v. Griffin, 42 Pa. Superior Ct. 597; Com. v. Shields, 50 Pa. Superior Ct. 1; Com. v. Dumber, 69 Pa. Superior Ct. 196; Com. v. Rabinowitz, 73 Pa. Superior Ct. 221; Com. v. Coles, 265 Pa. 362; Com. v. Weiss, 284 Pa. 105; Com. v. Dwyer, 79 Pa. Superior Ct. 485; Wharton on Criminal Evidence, § 53.

From these and the many other cases dealing with the subject, the fundamental principle is to be gathered that evidence, which is otherwise admissible, is not rendered inadmissible merely because it involves the commission of another crime than the one on trial. Applying this rule to the confession before us, it is clear that those parts of it to which objection was made were properly admitted. They tell how, about three months before the murder, the defendant and Barclay started a course of joint and systematic stealing and robbery; how, on the first night of their criminal enterprises, they stole an automobile and held up and robbed a citizen in southwest Philadelphia; how, from then on, during the short space of a dozen weeks, they, together with others who had joined their band, committed theft after theft and robbery after robbery; stole at different times the car and the automatic guns which were used in the attack on Mr. Harrison; and, finally, how their organized criminal course culminated in the murder of Mr. Harrison in that attempted robbery. When the confession was offered, the Commonwealth had shown no more than the assault and the order of the defendant, at the beginning of it, to “stick ’em up.” It was only an attempt at robbery, however; and while the jury might have inferred from the circumstances the intention to rob, upon which the charge of first degree murder was based, the Commonwealth was entitled to use all the relevant evidence in its possession to make certain and to clarify the criminal purpose of the assault and the significance of the possible ambiguous command to “stick ’em up.” It, therefore, seems to us that the admissibility of the confession in its entirety, at the time it was offered, is undoubted. But, even if it were error to admit the parts of the confession objected to, it was cured by the defendant’s subsequent admission, on the stand, that the killing occurred in the perpetration of a robbery. This rendered harmless any possible technical error, for the defendant’s own testimony fixed the crime at murder of the first degree. In these circumstances, the evidence took on a further value in assisting the jury to fix the proper penalty for the crime. It showed that it was not an isolated offense, committed suddenly and without full realization of its true nature. It was disclosed by this evidence in its real light, as a deliberate and studied deed, the outcome of a well-settled and long-continued course of misconduct of the same kind. The Act of May 14, 1925, P. L. 759, vests in the jury the judicial function of fixing the penalty to be imposed for murder of the first degree. In performing that duty, the considerations indicated were proper and important for the jury to bear in mind, and to have deprived them of such evidence would have interfered with their administration of exact justice in the case. Of course, such evidence would not be admitted if it were prejudicial to the determination of guilt or innocence; but, being harmless to that issue, it was illuminating of the other, and it was not error to let the jury consider it in determining what penalty the prisoner’s offense deserved.

The remaining reasons for a new trial are formal — that the verdict was) against the law, the evidence and the weight of the evidence, and are without merit. The defendant admitted that, when the killing occurred, he was engaged, with his confederate Barclay, in robbing the deceased. There was no dispute about that fact, and his only defense consisted in an effort, by confusion of evidence, to make it appear doubtful whether the deceased was killed by himself or Barclay, on the one hand, or, on the other, by Officer Clark, who returned his fire. His efforts in that direction failed, for it was clearly and overwhelmingly established that it was the defendant who fired the fatal shot. This made his crime murder of the first degree under the act, and any other verdict would have been contrary to law and a miscarriage of justice. So far as the penalty is concerned, that is a matter resting exclusively in the sound discretion of the jury, whose decision is fully justified by the enormity of the crime.

The motion for a new trial is, therefore, overruled.


author: Martin, P. J.,

text:
    Green v. Bartlett Tours Company.

      Taylor, Robey, Hoar & Nicholson, for plaintiff.

      Porter, Foulkrod & McCullagh, for defendant.
    June 11, 1928.
   Martin, P. J.,

Defendant is tenant in a property, No. 1415

Locust Street, in the City of Philadelphia, under a written lease from the owner, William Goldstein, dated Peb. 4, 1924, for a term of six years from March 1, 1924, at the annual rent of $5500, payable monthly in advance in sums of $458.34.

The rent was paid by check sent by mail to the agents of the landlord.

After executing the lease, Goldstein made a mortgage secured upon the property.

Default was made in the payment of interest, the mortgage was foreclosed and the property was sold by the sheriff to Charles J. Green.

There was some confusion as to who was entitled to rent falling due in advance on Aug. 1, 1927. The president of defendant was absent in Europe on business of the company, but on Aug. 5, 1927, defendant delivered to plaintiff a check, dated Aug. 1, 1927, for $416.68, in payment of the rent. Plaintiff refused to receive the cheek and returned it to defendant, and on Aug. 3rd wrote to defendant:

“In accordance with the terms of your tenancy, the sum of $416.68, as one month’s rent in advance for the front store and ground floor of premises 1415 Locust Street, became due and payable on Aug. 1, 1927. Likewise, the sum of $50 for the middle office became due and payable on the same day. Having failed and neglected to so make payment, you are hereby notified and advised that because of your breach, the leases under which you hold tenancy are abrogated by me and declared null and void. Possession of the premises demised is hereby demanded by me and you are required to vacate forthwith. Unless you advise me promptly of your intention to vacate, ejectment proceedings will be commenced against you without further notice.”

Subsequently, all the rent was paid in full by defendant and accepted by plaintiff under an agreement that the acceptance of rent should not prejudice any rights plaintiff had under the terms of the lease.

On Oct. 3, 1927, plaintiff filed a copy of the lease with an affidavit, averring that, in violation of the provisions of its lease and covenant, the lessee failed to pay the rent due Aug. 1, 1927, in advance, and that, in consequence thereof, the lease had been canceled and terminated by the plaintiff, successor and assignee of the lessor, in accordance with the provisions relating to such termination, and that the defendant’s rights in and to the lease had, therefore, ceased and determined. Judgment against the defendant was entered by the prothonotary, and a writ of habere facias issued.

Defendant filed a petition, averring that the affidavit was false and untrue, in that defendant did pay to plaintiff the rent due Aug. 1, 1927, in advance, by a check which was deposited by plaintiff, and that all monthly rental payments made by the defendant under the lease, prior to Aug. 1, 1927, had been paid by defendant by checks, which were received and accepted, and that defendant paid the rent due on Sept. 1, 1927, and Oct. 1, 1927, by checks, which were accepted by plaintiff.

A rule was granted on Oct. 5, 1927, to show cause why the judgment should not be opened.

Plaintiff filed an answer, denying that the affidavit filed by plaintiff was false and untrue, and averring that it was true and correct; that defendant did fail to pay in advance the rent due Aug. 1, 1927, and that he notified the defendant that the lease was abrogated by reason of the failure to pay the rent, and that possession of the demised premises was demanded; and that, on Aug. 5, 1927, he received, by mail, a check in the sum of $416.68 for the rent due Aug. 1, 1927, but refused to accept the check and returned it to the defendant by mail. It was admitted in the answer that plaintiff received the check dated Aug. 1, 1927, but denied that the check was in payment for the rent due Aug. 1st in advance, but averred that the check was given and accepted on Aug. 22, 1927, as a result of an agreement between plaintiff and counsel for defendant providing, if the plaintiff would withhold action for the possession of the demised premises until certain officers of the defendant corporation returned from Europe, defendant would pay for the use and occupation of the premises in the meantime, as diminution of the damages for detention, and that it was agreed the payment and acceptance of the check was to be without prejudice to any claims that might be made as to the status of the lease caused by the failure of the defendant to pay the rent due Aug. 1st in advance.

It is admitted that the monthly payments for rent made by the defendant under the lease, prior to Aug. 1st, had been made by checks which were received and accepted by the landlord, but it was denied that the payments made by the defendant to the plaintiff on Sept. 1, 1927, and Oct. 1, 1927, were for monthly rental payments under the lease, but it is averred that the cheeks were accepted in accordance with the agreement between plaintiff and defendant’s counsel, that no prejudice would result as to the status of the lease occasioned by the failure of the defendant to pay the rent due on Aug. 1st.

On Dee. 5, 1927, defendant filed another petition, setting forth the facts averred in the former petition and averring that judgment in ejectment had been entered, a writ of habere facias issued, and that the affidavit of plaintiff filed to support the judgment was insufficient.

On Dee. 5, 1927, a rule was granted to show cause why the judgment should not be stricken off.

No depositions were taken, the parties having agreed upon the facts.

There was no place stipulated in the lease where the rent was to be paid. It was uniformly paid by checks sent by mail, and all rent has now been paid in full to date upon the understanding that its receipt by plaintiff was without prejudice.

It is admitted that the rent due Aug. 1st in advance was subsequently tendered and paid before the judgment was entered, and it is also admitted that no demand for payment of the rent was made on the premises by the plaintiff.

In Lynch v. Gas Co., 165 Pa. 518, 521, it was said by Mr. Justice Mitchell: “There is a wide, distinction even in equity between forfeitures for failure of punctual payment of money where time is of the essence of the contract and where it is not. If parties choose to stipulate for matters as essential, it is not for courts to say that they are not so, but in the absence of a clear agreement for materiality, courts will look into the nature of the transaction and be governed by the real bearing of the facts upon the intentions and rights of the parties. Hence, it is a settled general rule that where time is not stipulated as essential and a forfeiture for non-payment of money or other matter that admits of accurate and full compensation is provided as a mere penalty whose object is to enforce performance of another and principal obligation, equity will relieve against it and will not permit it to be used for a different and inequitable purpose: Story, Equity Jur., § 1316.”

Where no place is mentioned in a lease for payment of rent, it is incumbent on the landlord to show a demand on the land previous to a declaration of forfeiture. A habit between the parties for the tenant to seek the landlord and pay will not relieve the latter from the necessity of formal and legal demand on the land if he seeks to make non-payment the basis of a forfeiture: Rea v. Eagle Transfer Co., 201 Pa. 273; Shapiro v. Malarkey, 278 Pa. 78, 83.

While the letter declaring the intention of the landlord to forfeit the lease was written before the tender or acceptance of the check for the rent due Aug. 1st, the tender was made and the check accepted prior to the entry of the judgment. There was no right in the landlord to forfeit the lease for non-payment of rent before a demand for payment was made upon the land.

In Artzerounian v. Demetriades, 276 Pa. 303, it was declared that a forfeiture is abhored at law as in equity, and, where the rights of one of the parties will be injured by declaring a forfeiture, the courts will not be slow to seize on a reasonable opportunity to prevent it. As a general proposition, equity will relieve against a forfeiture where to permit a forfeiture to be enforced would be unconscionable.

“Forfeitures, in equity, are regarded with extreme disfavor, and, where compensation can be made for non-performance, a court of equity will ordinarily give relief against forfeiture. This is on the principle that a court of equity is a court of conscience and will permit nothing to be done within its jurisdiction which is unconscionable, and that a person having a legal right shall not be permitted to avail himself of it for the purpose of injustice and oppression:” 16 A. L. R. 437.

In Homet v. Singer, 35 Pa. Superior Ct. 491, it was stated that, among other requirements necessary to establish the right of forfeiture, “the proof of the happening of the event upon whieh it is to be exercised must be clear; such right must be exercised promptly, and the result of enforcing the forfeiture must not be unconscionable.”

Having failed to make demand upon the leased premises for payment of the rent, plaintiff was not entitled to forfeit the lease.

“The distinction between striking off and opening a judgment is clear and well settled. It can be stricken off only for irregularity appearing on the face of the record. Relief from it, when regularly entered, ... if the defendant is entitled to relief, must come through a motion or petition to open it, such motion or petition being an appeal to the equitable power of the court to let the defendant into a defense:” Spiese v. Shee, 250 Pa. 399, 400.

“A rule to strike off a judgment is a common-law proceeding, raising questions of irregularity or insufficiency apparent upon the face of the record. A rule to open judgment is an equitable proceeding. The two are not interchangeable, and where the parties do not consent thereto, one cannot be substituted for the other by the court:” Hamborsky v. Magyar Presbyterian Church, 78 Pa. Superior Ct. 519.

And now, to wit, June 11, 1928, the rule to show cause why the judgment should not be opened and the defendant let into a defense is made absolute; the rule to show cause why the judgment should not be stricken off is discharged.


author: Landis, P. J.

text:
    John E. Weaver’s Sons v. Pennsylvania Railroad Co.

      Zimmerman, Myers & Kready, for rule; Charles W. Eaby, contra.
   Landis, P. J.

On Dec. 8, 1926, a summons in assumpsit was issued by W. S. Doebler, an alderman of Lancaster City, against the defendant company, returnable on Dec. 15, 1926, between the hours of 9.30 and 10 o’clock A. M. On Dec. 15th, a hearing was duly had, and, after hearing the parties, judgment was entered by the alderman in favor of the plaintiffs for $142.80. On Dec. 23, 1926, the defendant appealed to this court, and the same vías duly entered on Jan. 5, 1927. Thereupon the plaintiffs presented their petition to strike off the appeal, alleging that the appeal and the affidavit were not taken before an alderman or justice of the peace, but before a notary public, and because neither the affidavit nor the recognizance was taken within the County of Lancaster but in the County of Philadelphia.

The Act of March 25, 1903, P. L. 61, relating to appeals from justices of the peace and aldermen, provides: “That from and after July 1, 1903, no appeal shall be allowed from the judgment of a justice of the peace or alderman, unless the appellant or his attorney or agent, at the time of taking said appeal, shall make affidavit in writing that the appeal is not for delay, but because he verily believes that injustice has been done.” Under this act, this court, in Eby v. Great Eastern Casualty and Indemnity Co., 21 Lanc. Law Rev. 298, decided that “it is not necessary . . . that the affidavit required on taking an appeal be made in the presence of the justice granting the appeal and at the exact time of the taking thereof;” that “it is sufficient if it was previously taken before another magistrate and filed when the appeal is taken.” In that case, we said: “The transcript discloses that the affidavit made in this case is in writing and in the form required by the act.” Admittedly, it was not done in the presence of the justice allowing the appeal, “but it was doné before an alderman prior to the suing out of the appeal, and it was filed with the justice at the time the said appeal was taken and delivered. It is not directed in any of the acts that the affidavit must be made before the trial justice. All that is said is that the affidavit must be made at the time of taking the appeal. If, then, it is made before the appeal is sued out and filed with the justice when the appeal is taken and the papers are delivered to the defendant, we think that a compliance is had with the provisions of the statute.”

In Oliver Mfg. Co. v. Burchfield, 18 Dist. R. 853, it was decided, and we think properly, by Criswell, P. J., that the affidavit upon appeal from a justice may be made before a justice of another county. We also think the recognizance may be signed in another county. There is nothing in any of the acts of assembly to the contrary, and there is no provision indicating before whom the affidavit shall be made. The taking of the appeal is when the alderman accepts the written recognizance and grants the appeal, and, therefore, the recognizance need not be signed in the presence of the hearing magistrate. The Act of March 15, 1847, § 1, P. L. 361, provides that “when any corporation . . . being sued shall appeal or take a writ of error, the bail requisite in that case shall be taken absolute for the payment of debt, interest and costs on the affirmance of the judgment.”

We also think that the affidavit can be taken before a notary public. The Act of March 5, 1791, § 3, 3 Sm. Laws, 6, provides that “the said notaries so commissioned as aforesaid, and every of them, shall have the power of administering oaths and affirmations according to law in all matters belonging or incident to the exercise of their notarial office.” In American Ry. Express Co. v. Berry, 7 D. & C. 687, it was held that the affidavit upon an appeal from the judgment of an alderman or justice of the peace is not only not required to be made before the justice from whose judgment the appeal is taken, but that it may be made before a notary public and filed with the justice at the time the appeal is taken.

I am, therefore, of the opinion that the objections raised have no merit, and the rule is for this reason discharged.

Rule discharged. Prom George Ross Eshleman, Lancaster, Pa.


author: Henry, P. J.,

text:
    Harrisburg Light and Power Company v. Sebastian.

      Spencer G. Nauman (of Nauman & Smith, of Harrisburg) and Paul G. Adams, for plaintiff.

      Eugene D. Siegrist, for defendants.
    Dec. 2, 1927.
   Henry, P. J.,

The Harrisburg Light and Power Company filed a petition, accompanied by a bond, asking for the approval of the bond in the condemnation of “an easement” or right of way over certain lands of the defendants. A large number of exceptions to the petition and bond were filed by the owners of the land, but the ones pressed in support of the contention that the bond should not be approved are that the proceedings are defective because the company appropriates “an easement” instead of property; that the company has not sufficiently designated in its proceedings before the Public Service Commission or in its resolutions the type of construction of the proposed transmission line; that the petitions and record fail to properly and sufficiently describe the tract from which the appropriation is taken; and that the proposed taking or appropriation is unreasonable, arbitrary and an improper exercise of the discretion of the board of directors.

It is contended that the appropriation of “an easement” is beyond the power of the petitioner because the Act of May 21, 1921, § 4, subdiv. (d), P. L. 1057, authorizes only the appropriation or taking of property by electric light, heat and power companies. In Railway v. Peet, 152 Pa. 488, 492, it was suggested that the term “easement” is a misnomer as applying to the land taken in condemnation for railroad purposes, but the use of the word in this connection was recognized, although it was suggested that it was a “loose way for the purpose of distinguishing it from a fee.” While the petition does call the appropriation an easement and it also speaks of a right of way, it is clear that by whatever name it may be called, what the petitioner proposes taking is a certain portion of the lands of the defendants for the purpose of erecting and maintaining poles and wires for the transmission of power. It may be an easement, and, under the authority of Railway v. Peet, it may possibly be more than an easement, although we might distinguish between land taken in condemnation by a railroad for railroad purposes and land taken by a light and power company for its purposes. We do not consider the use of the word easement as unwarranted by the use of the word property in the act of assembly. An easement is property. It is real property. It is a right in land, and we take it that under the provisions of the act of assembly the condemnation might be a taking of the whole property, that is, the fee or a restricted right, such as an easement.

While it might be well for a corporation to describe the construction to be placed upon land taken in condemnation proceedings, yet there is nothing in the act of assembly that requires this to be done, and, where evidence is pre: sented showing what that construction is to be, the court has knowledge of this fact in so far as it may affect the validity of the taking, and, as long as there is nothing essentially wrong in the construction, it only is important in connection with the manner in which it may affect the remaining portion of the owner’s land and as going to the amount of damages that should be awarded for the appropriation.

The objection that the petitions and record do not contain a description of the entire tract of land from which the appropriation is made seems to have some force when we consider the case of Wilson v. Public Service Commission, 89 Pa. Superior Ct. 352, 360. The failure to set forth a description of the entire tract of land in the petition before the Public Service Commission asking for that body’s approval of the exercise of the right of eminent domain is criticised and even termed an “error,” although it was cured in that case by a blue-print which showed the entire tract. There is nothing in this opinion that indicates the reason for the criticism of a failure to attach a draft or description of the entire tract of land, and we find nothing requiring it in the Act of 1921 or in the Act of April 29, 1874, P. L. 73, which provides for the manner in which damages shall be ascertained and recovered in the exercise of eminent domain by corporations. While it is important that the manner in which the taking or appropriation affects the owner’s remaining property should be considered in assessing damages, yet that is a matter which is the subject of presentation through proper evidence, and we see no reason why it should be an essential part of the petition asking for the approval of the bond. What is important is that the property taken should be accurately described so that it can be located on the ground, but the petition in the instant ease is very clear in this respect and definitely fixes the beginning point, not only with respect to the owner’s land, but with respect to the lands of others, and then runs a definite course to a fixed place of ending, again fixed with reference to lands other than those taken. It might be better to have a description of the whole tract from which the property or land taken is carved, but we do not deem its absence fatal to the validity of the proceeding.

Considerable evidence was presented indicating the character of the construction proposed to be put upon*the easement or land taken, and, while it does not appear to be, and we do not 'believe it to be, the safest and most durable construction, yet it is such as is in ordinary and common use for the purpose intended, and we do not feel that we would be warranted in requiring a construction which would be very much more expensive, but which would in all probability be more durable and safe.

We are in thorough accord with counsel for the exceptants when he says that the condemnation of private property for public use is contrary to the course of the common law and that the manner pointed out by legislation for the course to be followed in the appropriation of another’s property should be strictly followed; but we are as strongly impressed with the recognized principle that not only the property but the lives of her citizens are subject to the sovereignty of the State for the public weal, and that this right of sovereignty to take private property for public use may be delegated and exercised upon making proper compensation: indeed, it is only through such delegation of the sovereign power of the State that many of the comforts of life may be enjoyed by the great bulk of our people.

We feel that the petitioners should be allowed to take possession of the property of the defendants proposed to be taken, and that the land owners should be referred to the remedies the law gives them for compensation. At bax-, no exception was taken to the sufficiency of the bond.

And now, Dec. 2, 1927, the exceptions to the petition and bond filed in the matter of the condemnation of the real estate of Joseph Sebastian and Vera Sebastian are overruled and the bond will be approved.

From Dawson W. Light, Lebanon. Pa.


text:
    Bucher’s Estate.

      Ehrehart & Bange, for petitioners; Walter B. Hays, for respondents.
    Dec. 23, 1927.
   Stock, J.,

This is a citation issued at the instance of the Hanover Trust Company, trustee, Carlotta B. Wilson and Myrtle Barnitz, to show cause why certain deeds should not be set aside and decreed null and void.

Respondent filed an answer to this citation. Testimony of witnesses was taken in support of the disputed allegations of facts.

A. M. Bucher died July 4, 1920, leaving a will which was probated in York County on July 9, 1920, and letters testamentary thereon were granted to John J. Bollinger, the executor therein named.

A. M. Bucher provided in his will, inter alia, as follows:

“Eighteenth. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever situated, I direct shall be divided into four equal parts, one of which I give to each of my sisters, Mary Jane Barnitz, Ella E. Bollinger and Clara E. Bittinger, and my brother, J. C. Bucher, provided, however, that the share of my estate to which my sister, Mary Jane Barnitz, is entitled under this provision, shall be paid by my executor to the Hanover Trust Company, of Hanover, Pa., in trust to invest, reinvest and keep the same invested and to pay the net income derived therefrom to the said Mary Jane Barnitz in quarterly payments for and during the term of her natural life, and upon her decease in further trust to pay the net income derived therefrom in quarterly payments to Carlotta B. Wilson and Myrtle Barnitz in equal shares for and during the term of their natural lives. Upon the death of either of the said Carlotta B. Wilson or Myrtle Barnitz, one-half of the principal of the said fund shall be paid to the children or issue of deceased children of the one so dying in equal parts, share and share alike, per stirpes. In the event that the one so dying shall leave no children or issue of deceased children surviving her, then one-half of the said fund shall be distributed to those entitled to my residuary estate at the time of my death, or their heirs, in such proportion as they would be entitled to under the intestate Jaws of the State of Pennsylvania in force at the time of my death.”

Mary Jane Barnitz, sister of the testator and mother of Carlotta B. Wilson and Myrtle Barnitz, died Sept. 11, 1922.

Carlotta B. Wilson and Myrtle Barnitz and Hanover Trust Company, testamentary trustee under said will, are petitioners herein.

Decedent died seized of an undivided one-sixth interest in an improved parcel of land situate at the corner of Carlisle Street and Centre Square, Hanover. The remaining five-sixths interests were vested in equal undivided one-sixth interests in each of the decedent’s three surviving sisters and a surviving brother, Ella E. Bollinger, Clara E. Bittinger, Mary Jane Barnitz and J. C. Bucher, and in the estate of the decedent’s deceased brother, H. C. Bucher.

Decedent empowered his executor to sell said real estate by the following provision in his will:

“Nineteenth. I hereby authorize and empower my executor hereinafter named or his survivor to sell and dispose of all or any part of my real estate either at public or private sale for the best price that may be obtained for the same and to convey and assure unto such purchaser thereof in fee simple, without any obligation on the part of such purchasers to see to the application of the purchase money.”

On March 29, 1922, the said John J. Bollinger, executor of the said A. M. Bucher, deceased, sold and conveyed at private sale an undivided one-eighteenth interest in the property to his mother, Ella E. Bollinger, for $2500, which deed was recorded May 3, 1923. This undivided one-eighteenth interest was reconveyed by said Ella E. Bollinger to her said son, John J. Bollinger, on Sept. 18, 1922, for a like consideration of $2500, the deed being recorded May 3, 1923.

On March 29, 1922, the said John J. Bollinger, executor as aforesaid, sold and conveyed at private sale an undivided one-eighteenth interest in the property to his uncle, J. C. Bucher, for $2500, which deed was recorded May 3, 1923. This undivided one-eighteenth interest was also reconveyed by said J. C. Bucher and wife to his said nephew, John J. Bollinger, on March 31, 1922, for a like consideration of $2500, the deed being recorded May 3, 1923.

On March 29, 1922, the said John J. Bollinger, executor as aforesaid, sold and conveyed at private sale an undivided one-eighteenth interest in the property to his aunt, Clara E. Bittinger, for $2500, which deed was recorded May 3, 1923.

Petitioners, as residuary legatees under the eighteenth item of the will of the decedent, are interested in said real estate and the proceeds received from its sale.

Said Ella E. Bollinger died Feb. 15, 1925, and letters testamentary on her estate were granted to said John J. Bollinger.

Said John J. Bollinger died March 23, 1925, and letters of administration on his estate were granted to his sister, Anna B. Rebert, and Jacob F. Rebert, her husband.

Letters of administration de bowis non cum testamento annexo on the estate of said Ella E. Bollinger were granted to her > daughter, the said Anna B. Rebert, and Jacob F. Rebert, her husband.

Letters of administration de bonis non cum testamento annexo on the estate of the said A. M. Bucher were granted to his brother, the said J. C. Bucher.

All parties interested in the real estate of the decedent sold as aforesaid, or legatees under said residuary clause in the will of A. M. Bucher, deceased, have been made parties to this proceeding and are in court .either as petitioners or respondents.

Neither the Hanover Trust Company, trustee as aforesaid, Carlotta B. Wilson, nor Myrtle Bamitz received notice of the sales and transfers of decedent’s real estate made as aforesaid until after the same had been made; nor did Mary Jane Bamitz receive such notice in her lifetime. None of these parties assented to or had knowledge of these transfers at the time they were made.

The value of this undivided one-sixth interest in the real estate at the time when it was sold by decedent’s executor was greatly in excess of the sum of the purchase prices therefor.

The inadequacy of the price at which the undivided interest in the real estate was sold by the executor to three of the four residuary legatees, without notice to the fourth, resulted in a constructive fraud upon petitioners.

The reconveyance of two of these undivided interests in the real estate of the decedent by the purchasers to the executor, at a consideration grossly inadequate, resulted in a constructive fraud upon petitioners.

The Orphans’ Court has authority to set aside these sales made by the executor.

These sales made by the executor should be set aside by this court.

Under the Act of June 7, 1917, § 9, pars, (d) and (l), P. L. 363, the Orphans’ Court is given power to control executors in the management of estates placed in their hands and of “all cases within their respective counties wherein executors, administrators, guardians or trustees may be possessed of or in any way accountable for any real or personal estate of a decedent.” Under this power, the Orphans’ Court has jurisdiction to review, set aside and order a resale of real estate made under a testamentary power: Spencer’s Estate, 227 Pa. 469. This was the same interpretation of powers of the Orphans’ Court as granted by the earlier Act of 1836: Dundas’s Appeal, 64 Pa. 325.

• Such jurisdiction of the Orphans’ Court to set aside a sale made by an executor under a power conferred by a will may be exercised in case of gross inadequacy of price: Fricke’s Estate, 16 Pa. Superior Ct. 38; Schnebly’s Estate, 249 Pa. 208.

This furnishes ample authority to set aside all three sales made by the executor of A. M. Bucher, deceased.

Two of the grantees, one the uncle, the other the mother of the executor, conveyed the fractional interests sold to them to the executor at the same consideration. This would make the relief prayed for more imperative. No person acting in a fiduciary character can purchase at his own sale, directly or indirectly, or acquire by purchase any interest in a trust estate without the consent of the beneficiary or others interested therein, or of the court having jurisdiction of the trust, unless such right be given by the testator in the will: Shuman’s Appeal, 27 Pa. 64; Hannum’s Appeal, 2 Penny. 103; Schnebly’s Estate, supra.

The suggestion has been made by respondents’ attorney that equity can be done without cancellation of these deeds; that since petitioners’ interest under the terms of the residuary clause is one-fourth of the proceeds of the sale of this real estate, they may be awarded a sum equal to -one-fourth of the difference between the price paid and the value as found by the court.

Title to this real estate is now in one of the original grantees, Clara E. Bittinger, and in the heirs of John J. Bollinger, the executor who made the conveyances. No substantial improvements have been made to the property by the grantees. In addition, Carlotta B. Wilson and Myrtle Barnitz own another fractional interest in this real estate vested in them through other sales. It would, therefore, appear that the interests of all parties can be best served by granting the prayer of the petitioners and directing a public sale of the undivided interest of the decedent.

And now, to wit, Dec. 23, 1927, it is ordered and decreed that the three sales of real estate of A. M. Bucher, deceased, made by his executor be set aside and that the following deeds of conveyance be and are hereby decreed to be null and void, to wit, (1) deed of John J. Bollinger, executor of A. M. Bucher, deceased, dated March 29, 1922, to Ella E. Bollinger, for a one-eighteenth interest in the real estate in Centre Square, in the Borough of Hanover; (2) deed of John J. Bollinger, executor of A. M. Bucher, deceased, dated March 29, 1922, to J. C. Bucher, for a one-eighteenth interest in the real estate in Centre Square, in the Borough of Hanover; (3) deed of John J. Bollinger, executor of A. M. Bucher, deceased, dated March 29,1922, to Clara E. Bollinger, for a one-eighteenth interest in real estate in Centre Square, in the Borough of Hanover; and, further, upon petitioners, or any of them, giving bond in the sum of $2000 conditioned to bid the sum of $12,500 at a resale of said undivided one-sixth interest, the court order a public sale of the same. From R. E. Cochran, York, Pa.


author: Wagner, Dep. Att’y-Gen.,

text:
    Tax on Foreign Fire Insurance Companies’ Premiums.
    March 23, 1928.
   Wagner, Dep. Att’y-Gen.,

We beg to acknowledge receipt of your request of Feb. 21, 1928, for our opinion relative to the proper interpretation and construction of the Act of July 15, 1919, P. L. 964, amending section 2 of the Act of June 28, 1895, P. L. 408, which supplemented section 24 of the Act of June 1, 1889, P. L. 420, providing for the payment by the State Treasurer to the treasurers of the several cities, townships and boroughs within the Commonwealth of the 2 per centum tax paid upon premiums by foreign fire insurance companies, with particular reference to:

(a) The amount of tax paid upon premiums by foreign fire insurance companies which should be paid to the treasurers of the designated municipalities ; and

(b) The proper method of computing the amounts to be paid to such treasurers, respectively.

The 2 per centum tax paid upon premiums by foreign insurance companies is levied under the provisions of the Act of May 6, 1925, P. L. 526, the latest amendment of section 24 of the Act of June 1, 1889, P. L. 420 (referred to above), supplementing the' Act of June 7, 1879, P. L. 112. The payment of part of this tax to the treasurers of designated municipalities of the Commonwealth is authorized by the said Act of July 15, 1919, which reads as follows: “On and after the first day of January, one thousand nine hundred and nineteen, and annually thereafter, there shall be paid by the State Treasurer to the treasurers of the several cities, townships and boroughs within the Commonwealth the entire net amount received from the two per centum tax paid upon premiums by foreign fire insurance companies. The amount to be paid to each of the treasurers of the several cities, townships and boroughs shall be based upon the return of said two per centum tax upon premiums received from foreign fire insurance companies doing business within the said cities, townships and boroughs, as shown by the Insurance Commissioner’s report. Warrants for the above purposes shall be drawn by the Auditor General payable to the treasurers of the several cities, townships and boroughs, in accordance with this act, whenever there are sufficient funds in the State Treasury to pay the same.”

By virtue of the provisions of section 212 of the Insurance Department Act of 1921 (Act of May 17, 1921, P. L. 789 , known as the Retaliatory Section, a foreign insurance company authorized to do business in this Commonwealth pays a tax in excess of 2 per centum on the premiums collected by it in this Commonwealth, if, under the laws of the state in which such foreign insurance company is incorporated, a tax in excess of 2 per centum is levied upon the premiums collected by a Pennsylvania insurance corporation in that state, the basis of taxation applied by this Commonwealth to the foreign corporation being the same as that applied by the foreign state to the Pennsylvania corporation.

It is our opinion that the legislature intended by the above Act of July 15, 1919, to provide for the payment to the treasurers of the designated municipalities such amount, not in excess of 2 per centum, as should be received as a tax upon premiums from foreign fire insurance companies. Any additional tax received, due to the operation of the Retaliatory Section referred to above, is not a 2 per centum tax or any part thereof, and is, therefore, to be paid into the State Treasury as part of the general fund.

The said Act of 1919 does not prescribe a detailed method for computing the amounts to be paid to the various treasurers respectively. It is required that the amount to be paid shall be based upon the premiums received from foreign fire insurance companies doing business within the various cities, townships and boroughs. It is our opinion that it was the intention of the legislature that the treasurer of a particular municipality should be paid an amount equivalent to 2 per centum of the premiums collected by foreign insurance companies on account of business done within the limits of such municipality. The amount of such premiums will, of course, be the aggregate of such premiums reported by the various foreign fire insurance companies doing business within the limits of any particular municipality.

In this connection, reference is made to an informal opinion of Special Deputy Attorney-General Sehnader to Honorable Charles Johnson, Deputy Auditor General, under date of Oct. 7, 1926, outlining the duties of the Insurance Commissioner and the Auditor General in connection with the payment of the amounts due to the respective treasurers, from which is quoted the following:

“While the Act of 1919 does not require the Insurance Commissioner to present requisitions to the Auditor General for payments to the several cities, boroughs and townships thereunder, there can be no objection to the continuance of the practice which has hitherto prevailed. We understand that, under the existing practice of the fiscal departments of the Commonwealth, a requisition is drawn for every payment to be made out of the State Treasury. This is a practice which is highly desirable, and it is entirely appropriate that the requisitions for payments to be made under the Act of 1919 should be presented to the Auditor General by the Insurance Commissioner, although, as previously stated, the preparation and presentation of these requisitions is not obligatory upon the Insurance Commissioner.

“If the Insurance Commissioner presents requisitions for payments to be made under the Act of 1919, such requisitions should be sufficiently definite to enable the Auditor General to prepare and forward warrants to the treasurers of the several cities, boroughs and townships entitled to payments. The warrants, in order to reach their respective destinations, must be sent to the treasurers of the several cities, boroughs and townships by mail. That being so, the requisitions forwarded to the Auditor General should specify the names and addresses of the treasurers of the several cities, boroughs and townships to which payments are due.

“If the Insurance Commissioner does not present to the Auditor General requisitions for the payments to be made under the Act of 1919, it is our opinion that it is the duty of the Auditor General to procure the names and addresses of the treasurers of the respective cities, boroughs and townships to which payments are to be made, and to prepare the warrants upon the State Treasurer, such warrants to be made payable to the treasurers of the several cities, boroughs and townships by name, giving their respective addresses.

“To summarize, it is our opinion that it is the duty of the Insurance Commissioner to forward to the Auditor General a report showing collections of tax from foreign insurance companies doing business within the several cities, boroughs and townships; that if the Insurance Commissioner presents to the Auditor General requisitions for the payments to be made to the treasurers of cities, boroughs and townships, such requisitions should give the names and addresses of the respective treasurers to whom payments are due ; and that if the Insurance Commissioner does not present requisitions to the Auditor General calling for the payments to be made under the Act of 1919, it is the Auditor General’s duty to ascertain the names and addresses of the treasurers of the respective cities, boroughs and townships to which payments are due and to prepare and forward to the State Treasurer warrants for such payments.”

It is, therefore, our opinion that, under the provisions of the said Act of July 15, 1919, the total amount to be paid to the treasurers of the designated municipalities is limited to 2 per centum of the premiums received by foreign fire insurance companies within this Commonwealth, paid as a tax levied in accordance with the provisions of said Act of May 6, 1925, and that the amount to be paid to the treasurer of any particular municipality is limited to 2 per centum of the premiums received by such foreign fire insurance companies on account of the business done within such municipality.

From C. P. Addams, Harrisburg, Pa.