author: BERGER, J.,

text:
    Mayberry v. Mayberry.

      Divorce — Residence — Averments of libel — Evidence — Proof—Master’s report — Examination of whole case by court.

    1. Averments as to residence in a libel for divorce do not stand upon any higher plane as to conclusiveness than any other essential averments in the libel, and must, therefore, be established by competent evidence.
    2. Evidence is not sufficient to sustain residence of libellant in Pennsylvania for one year prior to the filing of a libel in divorce, -which shows that, prior to the beginning of such year, she had removed to another state with the intention to reside there permanently, and that she had returned to her old residence in Pennsylvania only on two occasions, and stayed there but a short time, with no intent to resume it as her residence.

      Divorce — Adultery — Collusion — Paramour — Connivance — Words and phrases.

    3. A divorce at the suit of the wife on the ground of adultery will not he granted where the only evidence of the adultery is that of the husband’s paramour, and the evidence as a whole convinces the court that the suit was brought by collusion of the libellant, respondent and paramour.
    4. The maxim that to obtain relief in equity, the plaintiff must' come into court with clean hands, applies to divorce cases.
    5. "Connivance” is the corrupt consenting of a married party to that conduct of the other of which afterwards complaint is made.
    6. The report of a master relieves neither the trial court nor the appeal court from the duty of reviewing the testimony and deciding all cases of divorce upon the merits.
    Consideration of master’s report in divorce. C. P. Schuylkill Co., Nov. T., 1926, No. 10.

      John W. Clemens, for libellant.
    Feb. 28, 1927.
   BERGER, J.,

The master has recommended a decree in divorce on the ground of adultery. The parties were married Feb. 2, 1917, in Brooklyn, N. Y., and lived together in Pottsville, Pa., from March, 1924, to Feb. 13, 1926. The libellant had no marital relations with her husband after Jan. 9, 1926, but remained in their home, No. 404 Hotel Street, Pottsville, until Feb. 13, 1926, on account of her illness. Since then she has been earning her own living as housekeeper in a community institution, No. 124 Columbia Heights, Brooklyn, N. Y. The libellant has had no residence in Pottsville since Feb. 13, 1926, save that of her husband. She has been in Pottsville twice since she left on Feb. 13, 1926; once on or about Aug. 30, 1926, when she executed her libel in divorce, and again Jan. 14 and 15, 1927, the hearing before the master having been held on the latter date. On the occasion of each return to Pottsville, she stayed at her husband’s place of residence, No. 404 Hotel Street, and occupied it jointly with him during her stays. She still receives notice of the premiums about to fall due on her insurance policies at the home and address of her husband. In August, 1925, the husband confessed to her that he had been committing adultery with one Emily Frew from May, 1925, until that time, when he also told her that Miss Frew was pregnant. At the libellant’s suggestion, Miss Frew, .after a conference held in the home of the parties to this action, in September, 1925, was invited to come to their home and remain until the child should be born, and this because the libellant says that at that time she and her husband were engaged in religious work for the International Bible Students’ Association, and that both wanted to keep knowledge of Miss Frew’s condition, as well as the parentage of the prospective child, from the public, and that she, the libellant, also wanted to regain her husband’s loyalty and affection. Miss Frew came to their house, pursuant to this invitation, Oct. 23, 1925, and remained as a member of the household until Jan. 9, 1926, when she gave birth to a male child, which lived about fourteen hours. After the birth of the child, Miss Frew continued to remain as a member of the household at No. 404 Hotel Street or until about Feb. 20, 1926, the libellant having left about a week earlier to take a position with the International Bible Students’ Association in Brooklyn, N. Y., which makes her so self-supporting that she has not wanted anything further to do with her husband, nor to hold him to any obligation of alimony or support. From Oct. 23, 1925, until Jan. 9, 1926, the respondent spent many nights in bed with Miss Frew with the full knowledge of his wife, and also cohabited with his wife occasionally during that interval. After Jan. 9, 1926, the respondent spent all his time at night in Miss Frew’s room, and then the libellant quarreled with him about it, and thereafter refused to submit to his embraces, so she says. The husband admitted to his wife several times (Aug. 30, 1926, and Jan. 14, 1927) that he had committed adultery with Miss Frew from Feb. 13, 1926, to Feb. 20, 1926, and she, having been subpoenaed as a witness by the libellant, appeared before the master and refused, after warning, to plead self-incrimination, and there testified to her own acts of prostitution with the respondent. The master, in considering this evidence, in order to determine whether it justified the recommendation of a decree, has discussed, inter alia, three controlling questions, as follows:

“1. Has libellant proved a residence sufficient to give this court jurisdiction?
“5. Was respondent’s adultery after Jan. 9, 1926, condoned by libellant?
“6. Is the proceeding collusive?”

First, as to residence. The libellant has averred in her libel (paragraphs 3, 5, 6 and 7) that her place of residence at the time of the execution of her libel, Aug. 30, 1926, was, and for two years and four months immediately prior thereto had been, at No. 404 Hotel Street, Pottsville, Pa., with her husband, but these averments do not stand upon any higher plane as to conclusiveness than any other essential averments in the libel, and must, therefore, be established by competent evidence: Mauser v. Mauser, 59 Pa. Superior Ct. 275, 280, 281; Lynn v. Lynn (No. 1), 76 Pa. Superior Ct. 428, 431. The only direct testimony respecting the residence of the libellant in the County of Schuylkill at the time of the filing of her libel, and of her residence in the State of Pennsylvania for one whole year previously, is her own, as follows: “I regard Pottsville, Pa., as my home and No. 404 Hotel Street, Pottsville, as my residence. This is the residence of my husband; it is the residence in which we both resided when I left, as above testified. I was compelled to support myself and to go to Brooklyn to follow the employment in which I was engaged for years, and in which I am now engaged. I have stayed at No. 404 Hotel Street on the only two occasions in which I have come to Pottsville since leaving my husband, viz., last summer and last night. I have no other residence in Pennsylvania, and none anywhere else. My husband knew I stayed at No. 404 Hotel Street on the occasions mentioned.” Is this sufficient to confer jurisdiction upon our court? We think it is not, and as supporting our statement refer to Gearing, Jr., v. Gearing, 83 Pa. Superior Ct. 423; Krusch v. Krusch, 6 D. & C. 639, 641; Chesebrough v. Chesebrough, 6 D. & C. 765, 768; 7 D. & C. 357, 361; Quinn v. Quinn, 21 Schuyl. Legal Rec. 95, 104, 105. The evidence in this case is convincing to us that the libellant, when she left Pottsville, Feb. 13, 1926, intended the separation from her husband and his home to be permanent, and that she neither then, nor at any time since then, had any intention either to return to Pottsville or to the State of Pennsylvania as a place of residence. Under any view of the case, the libellant’s residence or actual place of abode since Feb. 13, 1926, has been at No. 124 Columbia Heights, Brooklyn, N. Y., and that joinder of actual residence in the State one whole year prior to the filing of the libel, coupled with domiciliary intent, which is necessary to give this court jurisdiction of the libel, is entirely lacking.

Second, as to bad faith, collusion and connivance. The testimony of the libellant respecting what she saw — entirely apart from any confessions made to her by the respondent, or the testimony of Miss Frew given before the master — in the conduct of her husband and Miss Frew at No. 404 Hotel Street, Pottsville, from Oct. 23, 1925, to Jan. 9, 1926, and thereafter during her alleged illness, until she left for Brooklyn, Feb. 13, 1926, fully supports the conclusion that during those two periods an adulterous relation existed between the respondent and Miss Frew. It must, therefore, be presumed, if the fact that the respondent and Miss Frew continued to live under the same roof from Feb. 13 to Feb. 20, 1926, be established by competent evidence, that the previous illicit relations continued: Smith v. Smith, 4 Paige’s Chancery Reps. (N. Y.) 432, 437. The libellant testified that she knew Miss Frew remained at No. 404 Hotel Street for some time after she went to Brooklyn, Feb. 13, 1926, but this is clearly mere hearsay. It follows that the only competent testimony tending to sustain the charge of adultery between Feb. 13, 1926, and Feb. 20, 1926, is that of Miss Frew, who, when testifying before the master, said that her appearance was solely in response to subpoena and not by arrangement with either of the parties to the action — a statement which we do not credit. The libel as originally filed alleged the commission of adultery at divers times from Oct. 25, 1925, to Dec. 1, 1925, but when the libellant discovered that by her acts of condonation she had precluded herself from obtaining a divorce based on the acts of adultery committed prior to Jan. 9, 1926, she was permitted to so amend her libel as to charge that the adulterous acts were committed from Oct. 25, 1925, to Feb. 20, 1926. Thus, the uncondoned acts of adultery alleged against the respondent, which the master has found true, which finding we approve, covered the period from the birth of Miss Frew’s child, Jan. 9, to Feb. 13, 1926, during which time the libellant remained as a member of the household at No. 404 Hotel Street, and the period from Feb. 13, 1926, to Feb. 20, 1926, during which period the respondent and Miss Frew were together alone in the apartment. In Romich v. Romich, 3 Dist. R. 617, Endlich, J., said that considerations of public morality may properly induce a court to apply stringent tests to the testimony of witnesses, and the proved conduct of a party in an action for divorce, in order to determine whether the case comes fairly "within the spirit of the law invoked by him. He further said that the express language of our divorce law negatives the right of a husband to sue for a divorce where he had connived, directly or indirectly, in the adultery of the wife, whereon the libel is founded, and this for the reason that the spirit of the law forbids either party to succeed where the other’s conduct was the natural, reasonable and intended consequence of the former’s actions. A party so acting, he said, cannot honestly declare that his libel is filed “in sincerity and truth,” and not “for the mere purpose of being freed” from the respondent, but, on the contrary, he who so acts commits a fraud upon the law, from which he can derive no advantage. Of course, what he said applies mutatis mutandis to the wife. If it be said that recrimination must be pleaded, as is held in Jackson v. Jackson, 49 Pa. Superior Ct. 18, the answer is that that was an action in divorce tried by jury, and the pleadings did not raise con-donation as an issue. In the instant case, although recrimination was not pleaded by the respondent, all the testimony tending to establish the bad faith, collusion and connivance of the libellant was introduced by herself. Moreover, in actions for divorce,' equitable principles apply, and “to obtain relief in a court of equity, the plaintiff must come with clean hands, and this maxim applies in divorce case's as well as in others of equitable cognizance. This is the principle underlying the defences of connivance, collusion and recrimination, everywhere recognized and permitted: Bishop, Marr., Div. & Sep., §§ 201-409, inclusive; Wass v. Wass, 41 W. Va. 126; 23 S. E. Repr. 637; Pierce v. Pierce, 3 Pick. 299; 15 Am. Dec. 210; Myers v. Myers, 41 Barb. 115; Danforth v. Danforth, 105 Ill. 603. Conduct sufficient to bar relief need not be such as would give the defendant cause for a divorce. Remedy and divorce are different things. Conduct sometimes denies remedy for apparent rights. Inequitable conduct on the part of the plaintiff, though it does not amount to cause for a divorce, suffices to defeat his application for relief. A different conclusion would be violative of the fundamental principle just stated. Adherence to that principle is necessary to the protection of the interest the State has in every suit for divorce. Marriage was instituted for the good of society. Once incurred, the marital relation must be continued, if continuance thereof is reasonably practicable, for the same reason. Its solemnity and importance as a factor in civilization forbid severance of the relation for slight cause. To allow both parties to dissolve the relation at will, or one of them to effect dissolution by trickery or fraud, would tend directly to defeat all the high and necessary purposes for which marriage was ordained. These are some of the obvious reasons for the application of the equitable maxim and legal principle in numerous cases of denial of relief: Bacon v. Bacon, 68 W. Va. 747; 70 S. E. Repr. 762; Wass v. Wass, 41 W. Va. 126; Cooper v. Cooper, 17 Mich. 205; 97 Am. Dec. 182; McGowen v. McGowen, 52 Texas, 657; Simpson v. Simpson, 31 Mo. 24; Ingersoll v. Ingersoll, 49 Pa. 249; 88 Am. Dec. 500; Goldbeck v. Goldbeck, 18 N. J. Eq. 42; Lynch v. Lynch, 33 Md. 328; Gray v. Gray, 15 Ala. 779; Crow v. Crow, 23 Ala. 583:” Hall v. Hall, 34 L. R. A. (N. S.) 758, 761; 71 S. E. Repr. 103.

Do the facts in the instant case establish the connivance of the libellant in the acts of adultery charged against her husband? Connivance is an agreement or consent, indirectly given, that something unlawful shall be done by another: 1 Bouvier’s Law Dictionary, 608. Connivance, it is said in Dennis v. Dennis, 34 L. R. A. (Conn.) 449, 458, is “the corrupt consenting of a married party to that conduct of the other of which afterwards complaint is made. It bars the right of divorce because no injury is received; for what a person has consented to, he cannot set up as an injury. Connivance is a thing of the intent resting in the mind. It is the consenting. But the connivance may be the passive permitting of the adultery or other misconduct, as well as the active procuring of its commission. If the mind consents, that is connivance: Ross v. Ross, L. R., 1 Prob. & Div. 734; Pierce v. Pierce, 3 Pick. 299; 15 Am. Dec. 210.” Applying these definitions of connivance, we are convinced that the libellant, when she left Pottsville, Feb. 13, 1926, left with the intent resting in her mind that the adulterous relation between her husband and Miss Frew should continue. It is our further belief that this proceeding in divorce is the result of collusion between the libellant, her husband and Miss Frew.

We have carefully considered the report of the master and, for the reasons which we have stated, are constrained to reject his recommendation. The report of the master relieves neither the trial court nor the appeal court from the duty of reviewing the testimony and deciding upon the merits all cases of divorce: Nacrelli et al. v. Nacrelli, 288 Pa. 1.

The libel is dismissed, at the cost of the libellant.

From M. M. Burke, Shenandoah, Pa.


source: Caselaw Access Project

author: Landis, P. J.,

license: Public Domain

text:
    Vafias v. Young.

      Real estate — Option to purchase — Acceptance of — Statute of frauds— Damages for repudiation of option.
    1. The statute of frauds does not require that an option to purchase land he signed by both parties. It is sufficient if it be in writing and signed by the vendor if accepted by the vendee. Nor is it necessary that the vendee give written notice of his election to accept the option.
    2. In an action by the vendee for damages for breach of a covenant to convey land, if there is no evidence of expense incurred or substantial loss sustained, the plaintiff is entitled to at least nominal damages.
    3. An agreement for the purchase of land at the option of the vendee only is not for that reason so void of mutuality that on election and notice it will not be enforced. The contract created by the election to take under the option is not open to such objection. From the time the vendee gives notice that he elects to take, the contract becomes one of sale, mutually binding on the parties. On exercise of the option, the vendor is bound to convey and the vendee is bound to pay the purchase money.
    Affidavit of defense raising question of law. C. P. Lancaster Co., May T., 1926, No. 41.

      John E. Malone, for plaintiff.

      F. Lyman Windolph and F. S. Groff, for defendant.
    March 26, 1927.
   Landis, P. J.,

The plaintiff’s statement avers that, on Oct. 20, 1923, the defendant executed and delivered to the plaintiff a written option to purchase the property on the southwest corner of Prince and Orange Streets for the sum of $25,600; that, at that time, it was agreed that Vafias was to enter into a new agreement on or before Oct. 27, 1923, for the purchase of the said property, and should, at the time of executing the new agreement, pay $500 in cash'and the balance of the purchase money on April 1, 1924; that, on Oct. 27, 1923, he tendered the defendant $500 in cash and an agreement to pay the balance on April 1, 1924; but that the defendant refused to accept the said cash payment and also refused to enter into the agreement or to convey the property to the plaintiff. It further asserts that, by reason of the breach of the contract, the plaintiff has sustained certain damages.

The defendant has filed an affidavit of defense raising a question of law. He states therein that the contract, as alleged, is unenforceable and void, and that the memorandum set forth in the statement of claim is not sufficient to take the case out of the statute of frauds; that it does not set forth any tender of the purchase price and does not set forth the damages legally recoverable.

An agreement for the purchase of land at the option of the vendee or lessee only is not for that reason so void of mutuality that on election and notice it will not be enforced. The contract created by the election to take under the option is not open to such objection. Prom the time the lessee or vendee gives notice that he elects to take, the contract becomes one of sale, mutually binding on the parties. On exercise of the option, the vendor is bound to convey and the vendee is bound to pay the purchase money. In Yerkes v. Richards, 170 Pa. 346, it was decided that: “In an action to recover damages for refusal to comply with an option to sell land, where the evidence for the plaintiif, though contradicted, tends to show that the option was obtained in entire good faith, and that a tender was made, and a conveyance of the property demanded in accordance with the terms of the agreement, the case is for the jury.”

Mr. Justice Elkin, in Barnes v. Rea (No. 2), 219 Pa. 287, said: “An option is not a sale. It is a right of election in the party taking the same to exercise a privilege, and only when that privilege has become exercised by acceptance in the manner specified in the agreement does it become an absolute contract, binding upon both parties. It is simply a contract by which the owner of property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. By such an agreement, he does not sell his land, nor does he at that time enter into an absolute contract to sell and convey, but he does agree to sell something; that is, the right or privilege to buy at the election or option of the party with whom the agreement is made. The optionee under such an agreement takes, not lands, nor even an absolute agreement that he shall have lands conveyed to him, but he does get something of value; that is, the right to call for a conveyance of the lands if he elects to purchase in the manner specified. The owner parts with his right to sell his lands, except to the second party, for a limited period. It is a unilateral agreement containing the terms and conditions upon which the optionor agrees to sell and convey his land not yet ripened into an absolute contract to sell and convey on one side and to purchase and pay on the other. ... If such an agreement is based on a valid consideration, it is a binding contract and may be enforced.” See, also, Boyer v. Nesbitt, 227 Pa. 398.

The statute of frauds, while it requires the contract to be in writing, does not require it to be signed by both parties. It is sufficient if it be signed by the vendor — the party to be charged — if the vendee accepted it: Lowry v. Mehaffy, 10 W. 387; McFarson’s Appeal, 11 Pa. 503; Shoofstall v. Adams, 2 Grant, 209; Simpson v. Breckenridge, 32 Pa. 287. Nor is it necessary that the notice of plaintiff’s election to take the land under the option given in the contract should be in writing. If the contract sets out the parties and the consideration and adequately describes the subject-matter, it is sufficient. Id certum est quod certum reddi potest: Smith & Fleck’s Appeal, 69 Pa. 474. If the subject of the contract is described, parol evidence is admissible to apply the description to the land: Ferguson v. Staver, 33 Pa. 411.

In Milligan v. Dick, 107 Pa. 259, it was held that, “on a breach by the vendor of a parol contract for the sale of real estate, the vendee may recover in assumpsit so much of the purchase money as he has actually paid; it is no defence that under the statute of frauds .the contract of sale cannot be specifically enforced;” and in Durham v. Wick, 210 Pa. 128, that: “A buyer can recover from the seller for breach of a parol contract to sell and convey land so much of the purchase money as was actually paid.”

The amount generally to be recovered as damages in such a case is another proposition. In Hennershotz v. Gallagher, 124 Pa. 1, it was held that: “In an action by the vendee to recover damages for the breach of a covenant to convey land, where the plaintiff has not paid the purchase money and no evidence is adduced that the land is of greater value than the sum agreed to be paid, he can recover but nominal damages.” In Harlan v. Underwood, 22 Lanc. Law Rev. 366 (which was tried in this court), it was shown on the trial that the plaintiff agreed to buy from the defendant and the defendant agreed to sell to the plaintiff a certain residence and dental office located in Lancaster City, together with the defendant’s dental practice. A few days after this agreement was made, the defendant sent word to the plaintiff that he would not carry out the contract and agreement. There was no proof of any expense incurred or loss sustained by the plaintiff by reason of the said contract, and the jury were instructed that if they found that the contract was made and that it was broken, the plaintiff was entitled to recover; also, that, as the plaintiff had failed to prove any substantial damages, he was only entitled to recover nominal damages.

Therefore, in this case, if the jury find that the option was given and that the plaintiff offered to carry it out, but that the defendant refused and thus created a breach of the contract, the plaintiff may recover damages; but if he does not show that, before the notification of the breach of the contract, he suffered any substantial damages, then the verdict would be at least for nominal damages.

We are of the opinion that at this time the question of law must be decided in favor of the plaintiff; and the defendant is now ordered within fifteen days to file an affidavit of defense to the facts of the case.

From George Ross Eshleman, Lancaster, Pa.


author: Berkey, P. J.,

text:
    Commonwealth v. Iser.

      Desertion and non-support — Prosecutrix domiciled in another state — Prosecution pending in another county — Act of April 13,1867.

    1. A deserted wife who has voluntarily removed from the Commonwealth may maintain a. prosecution against her husband for desertion under the Act of April 13, 1867, P. L. 78.
    2. Where the defendant has been arrested for desertion in one county and the proceeding is still pending, the prosecutrix cannot maintain a second prosecution in another county; and the latter prosecution will be dismissed.
    ■ Motion to dismiss proceeding. Q. S. Somerset Co., May Sess., 1927, No. 11.

      P. G. Cober, for Commonwealth; B. B. Scott, for defendant.
    March 2, 1927.
   Berkey, P. J.,

Bessie Iser, wife of the defendant, in an information dated Feb. 18, 1927, charged the defendant, her husband, with desertion of herself and minor child on April 18, 1925, which desertion has been persisted in to the date of the information. The case was heard by the court Feb. 21st last, and from the evidence submitted the court finds the following

Facts.

1. That, on or about April 18, 1925, the defendant, Wilbert Iser, deserted Bessie Iser and Ivor Iser, a child about three years of age, in Fayette County, Pennsylvania, without reasonable cause, and has since said date persisted in said desertion, refusing to support either of said defendants.

2. That Bessie Iser, wife of defendant, immediately after said desertion, made an information before Justice of the Peace J. J. Michael, in Fayette County, Pennsylvania, charging said defendant with desertion and non-support; whereupon the defendant was committed to the jail of said county, and that, on Oct. 24, 1925, the defendant paid the costs accrued in said case.

3. That, for more than a year last past, the wife with her child has been residing with her parents in the City of Detroit, Michigan, and that she came into the jurisdiction of this court a few days before she made the information in this case for the purpose of testifying as a witness in the Court of Quarter Sessions, and that while here in such capacity she made the information in this case.

Conclusions of law.

1. That Bessie Iser was competent to make the information in the case under consideration.

2. That there is a similar case pending against the defendant in Fayette County, consequently this court is without jurisdiction of the defendant.

3. That this case must be dismissed, at the costs of the County of Somerset.

Discussion.

Counsel for the defendant raised two legal propositions: (1) that Bessie Iser, the wife, having voluntarily removed from this Commonwealth, has rendered herself incompetent to institute this proceeding; and (2) that there is a similar prosecution pending in Fayette County in this Commonwealth, and, therefore, this court is without jurisdiction of the defendant.

Under the Act of April 13, 1867, P. L. 78, it is provided: “That, in addition to the remedies now provided by law, if any husband or father, being within the limits of this Commonwealth, has, or hereafter shall, separate himself from his wife, or from his children, or from his wife and children, without reasonable cause, or shall neglect to maintain his wife or children, it shall be lawful for any alderman, justice of the peace or magistrate of .this Commonwealth, upon information made before him under oath or affirmation by his wife or children or either of them, ... to issue his warrant to the sheriff or any constable for the arrest of the person against whom the information shall be made.”

It will be observed that the act provides the information may be made by his wife, etc. There is nothing said about her place of residence. She must establish, when the question is raised, a lawful marriage, and this is all and no more. She was entirely competent to make this information, regardless of where she had been living. It was quite apparent from the testimony in this case that the defendant did not perform the duties of husband and father as required by law; that she was unable to support herself and child, and she went to her only refuge, the home of her parents. She may not be penalized by the defendant’s own wrong. The first legal contention by defendant’s counsel is overruled: Com. v. Thatcher, 19 Dist. R. 985; Com. v. Smith, 6 D. & C. 378.

The second position taken by counsel must be sustained. It is a familiar principle where tribunals have concurrent jurisdiction over any subject-matter, the one in which proceedings are first commenced has exclusive jurisdiction of any special case: Com. v. Martin, 7 Pa. C. C. Reps. 153. If this were not the rule enforceable by the courts, it would lead to oppression, vexatious eases and the mulcting of persons with costs in each jurisdiction in which the action might be brought.

I regret very much the necessity I am under of dismissing this proceeding, because under the testimony on the merits of the case her grievances were legally established, but she must bring those grievances to the attention of the proper tribunal, the Court of Quarter Sessions of Fayette County, Pennsylvania.

Decree.

Now, March 2, 1927, for the reasons set forth in the foregoing opinion, the case is dismissed at the costs of the County of Somerset and the defendant discharged from his recognizance.

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


author: Maxey, J.,

text:
    Gherardi v. Geroulo.

      Pleading — Statement of claim — Averment of agency — Affidavit of defense —Denial—Sufficiency.

    1. Where the statement of claim alleges that defendant’s automobile was operated by the employee or agent of defendant, acting within the scope of his employment and engaged in defendant’s business, an affidavit of defense which avers that defendant has no knowledge of who was operating the car and denies that it was being used by the employee or agent of defendant, or any other person acting within the scope of his employment, or engaged in defendant’s business, and that defendant is informed and believes that the car had been taken without his knowledge, is a sufficient denial of the allegation of agency in the statement of claim.

      Negligence — Automobile—Liability of owner — Car driven by son without permission — Agency.
    2. Where a father maintains an automobile for the pleasure and convenience of his family, its use by a minor son to take friends of his for a ride, without the consent or knowledge of the father, does not make the father liable for injuries resulting from the negligent operation of the car.
    3. An agency is not implied solely from the fact that a car owned by the father is being driven by his son.
    Trespass for personal injuries. Rule for new trial. C. P. Lackawanna Co., Oct. T., 1925, No. 756.

      J. J. Walsh and L. H. Simons, for plaintiff; G. W. Ellis, for defendant.
    April 20, 1927.
   Maxey, J.,

About 10 A. M., May 17, 1924, Michael Geroulo, then aged about twenty-two years, was married. His father, Vito Geroulo, had a little store on the first floor of his property at Jessup, in Lackawanna County. Vito Geroulo and his family lived in that property and on the third floor was a public hall. The father permitted his bridegroom son the use of that hall for a wedding celebration the remainder of the day. Another son, Joseph Geroulo, was on the date in question in his eighteenth year. On the afternoon of that date he decided to take several of the celebrating guests out for a ride. He proposed to take them in a car owned by his father. He asked his mother for the key of the car and she refused to give it to him. Finally, he took the key without permission (Record, page 48). He drove north about ten miles. On his way home and near his home, about 4.30 P. M., he had a collision with a car belonging to Peter Gherardi, the plaintiff, and driven by him. This collision gave rise to the suit against the defendant, Geroulo, the owner of the car.

The first question arising is whether or not on the record in this case there was sufficient direct or implied evidence of agency on the part of the defendant’s son to justify the submission of the case to the jury. We did not think so, and directed a verdict for the defendant.

The plaintiff contends that there was sufficient proof of agency. The evidence he first relies on to prove agency is the evidence from the pleadings. The second paragraph of the plaintiff’s statement was offered in evidence. It reads as follows:

“2. At the same time the defendant was the owner and possessor of a certain automobile which was being operated in an easterly direction on the southerly side of said Church Street by the servant, agent, workman or employee of said defendant, who was then and there acting within the scope of his employment and was engaged on defendant’s business.”

The plaintiff also offered the second paragraph of the affidavit of defense, reading as follows:

“2. The allegations set forth in the second paragraph of plaintiff’s statement of claim are denied, and for further answer defendant says that he has no knowledge as to who was operating the said car or where it was being operated, but denies that it was being used by his servant, agent, workman or employee, or any other person who was then and there acting within the scope of his employment and was engaged in defendant’s business. He is informed, and believes, however, that said car was taken wdthout his knowledge.”

The plaintiff in asserting an admission of agency in the pleadings relies chiefly on the case of Buehler v. United States Fashion Plate Co., 269 Pa. 428. It is true that the affidavit of defence in the case at bar was not drawn with quite the verbal completeness outlined by the Supreme Court in the Buehler case. It was drawn substantially in compliance with these requirements, and certainly contained more than “a simple disavowal of knowledge and a formal call for proof,” which the Buehler case says is insufficient. It is true that the defendant denies knowledge as to who was operating the car, but it is also true that he “denies that it was being used by his servant, agent, workman or employee, or any other person who was then and there acting within the scope of his employment and was engaged in defendant’s business.” He also avers his belief that the car was taken without his knowledge.

The affidavit of defense, therefore, left the plaintiff in no doubt as to what the exact issue between him and the defendant was, to wit, the presence or absence of agency in the driver of the offending automobile. We think the affidavit of defense contains a sufficiently specific denial of the allegations of fact of the plaintiff's statement to conform to the Practice Act and to prevent the averments of the plaintiff’s statement from being taken as admitted.

In Myers and Myers v. Pfeiffer, 84 Pa. Superior Ct. 505, also cited by the plaintiff, there was no affidavit of defense filed, and, therefore, of course, the uncontroverted averment of defendant’s ownership of the car and its operation by his agent had to be taken as admitted when the pleadings were offered in evidence: Sections 6 and 13, Practice Act of May 14, 1915, P. L. 483.

Plaintiff seems to think that his case is strengthened by the fact that when defendant objected to the offer of the pleadings, the court said: “For the present, I will overrule the objection. Exception noted for the defendant.”

We reserved our ruling not because we were in doubt what the proper ruling should be, but because we wished to give the plaintiff an opportunity to submit authorities in support of the contention that he so urgently advanced, and we thought it easier to strike this evidence out later if our view of its admissibility remained unchanged than to exclude it in the first instance, and, in the event of our later being convinced that its rejection was error, to put plaintiff to the necessity of renewing his offer. We can find no merit in plaintiff’s contention that because we overruled defendant’s objection “for the present,” and inadvertently failed to strike out the evidence later, that, therefore, these pleadings proved what plaintiff claimed they proved. If the pleadings were admitted and did not support the legal purpose for which they were offered, the mere admission of the pleadings in evidence was without effect. The probative value of irrelevant evidence is not increased merely by its inadvertent or improper admission into the record.

With this alleged evidence of agency eliminated, what other evidence of agency is there in the record? We have above referred to the son’s testimony that he took the car in defiance of his mother’s orders. The defendant, Vito Geroulo, was called as for cross-examination by the plaintiff, and his testimony was as follows (Record, page 3):

“Q. You have a son by the name of Joseph Geroulo? A. Yes, sir. Q. How old was he on the date of the accident? A. About eighteen years old. Q. He lived with you? A. Yes, sir. Q. He helps you in your business? A. He works for his brothers, Geroulo Brothers. ... Q. Joe contributes to your support, does he? A. He pays board to his mother. ... Q. As to the date of the accident, was he paying? A. He was paying board then for about a year before that. . . . Q. You were at home all day that day? A. I was home, down in the basement. I have a little business; I run a little store, and I was there in the afternoon, taking care of my cigars and candy and stuff. Q. You used that car for your own convenience and pleasure and also for your family, did you not? A. I used my car any time I want to' go out, me and my family; I will go out with them, and I hire my son to drive the car for me; I don’t know how to run it myself. . . . Q. How many of your boys were residing at your house at the time of this wedding? A. There was four there present. . . . Q. And you permit those boys to use the car for pleasure purposes occasionally? A. They have got to ask me for it. If I see ñt, I let them have it; if I don’t, I won’t. Q. When they ask you for the use of the car, you permit them to have it? A. Sometimes. Q. And sometimes not? A. Sometimes not.”

The following is a part of the examination of Geroulo by his own counsel (Record, page 6):

“Q. Did you have anything to do with the arrangements for the wedding? A. No, sir. Q. Absolutely nothing? A. Just to permit him to use my hall and kitchen; that is all. Q. Did you know that your son, Joe, was using your car that afternoon? A. No, sir. Q. Did your son, Joe, ask you for permission to use your car that afternoon? A. No, sir. Q. Did anybody ask you for permission to use your car that afternoon? A. No, sir. Q. Did you know that it was out on the streets? A. I did not. Q. When did you first learn that your car was being used that afternoon? A. Right after the accident happened. Q. How were you informed? A. It was two or three blocks away from my home where this accident happened; the children ran down there, and when they saw it was my car they ran up and told me and my wife. Q. Your son, Joseph, had a car of his own at that time, had he not? A. Yes, sir. Q. Was it a small car or a large car? A. A Ford car. Q. Your son owned that car, did he not? A. That Ford, yes. Q. And he had a driver’s license for it? A. Yes, sir.”

Geroulo was later examined by his own counsel as follows:

“Q. The wedding which took place at your hall on May 17, 1924, was that under your direction or under your son’s? A. I had nothing to do with the wedding party; my son just asked me about a week before that if he could use the hall and the kitchen and the dining-room, and I told him, yes, he could have it, but all arrangements he done it all. Q. Who brought the people to the house; did your son take care of that or you? A. He invited them all. Q. And they all came themselves? A. Yes, sir. Q. And you didn’t give your son instructions to take any guests home from the wedding? A. No, sir. Q. Did you give consent to your son, Joe, taking the car? A. No, sir; he never came and asked me. Q. Did you know he had your car on that day? A. No, sir.”

The above constitutes all the evidence on the question of agency. In the face of this evidence, plaintiff contends that the question of agency was one for the jury. We are familiar with the rule that it is ordinarily for the jury to say if a driver was acting within the scope of his authority: Raub v. Donn, 254 Pa. 203. But we do not interpret this rule as meaning that in every case where injury results from the negligent operation of a car by a person not the owner, the question of agency must be submitted to the jury, not only in the absence of evidence tending to prove the agency, but in the face of evidence proving exactly the contrary. We are also familiar with the rule that the evidence of agency may be specific or implied, but we know of no authority in Pennsylvania sustaining the proposition that agency may be implied solely from the fact of the relationship of a car-owning father and a car-operating son.

Plaintiff relies chiefly on the case of Crouse et al. v. Lubin, 260 Pa. 329. That case is easily distinguishable from the case at bar. In that case the defendant, as the Supreme Court found, kept the car “for the use and pleasure of her husband and mother, Mrs. Abram; especially for the latter, who was authorized to use it whenever she desired, without limit. Defendant had no regular chauffeur for this car, but it was kept at convenient garages and sometimes at the garage of the Lubin Manufacturing Company, of which her husband was the president. It was there on the day above mentioned, and, in response to the request of defendant’s mother, the foreman of that garage sent her the car, as he had done on previous occasions, in charge of one George B. Day as chauffeur. The accident happened while the car was being returned to the garage. Mr. Day was an employee of said company. . . . The accident happened on Sunday, and the only service he performed that day was as chauffeur of this car. While doing that, he was subject to the direction and control of defendant’s mother and not of the company. . . . Defendant offered no evidence and there was no controversy as to the facts on this branch of the case. . . . Defendant made it her business to furnish a car for the comfort and pleasure of her mother, and a chauffeur was necessary in order to obtain the benefit thus conferred. ... In employing Mr. Day as a chauffeur, the mother was acting within the scope of her authority and in reality representing the daughter.”

In that case, therefore, there was no dispute that the car in question was used, first, with the express authority of the defendant, and, secondly, in the pursuit of the defendant’s business, which was (so far as it concerned that car) the furtherance of the pleasure of her mother.

The case of Raub v. Donn, 254 Pa. 203, cited by plaintiff’s counsel, is also easily distinguishable from the case at bar. The facts appear in the opinion of the Supreme Court as follows, page 204:

“The defendant told a Mr. Maher, an automobile mechanic, that he was going away for a short time and ‘wanted the car looked over and repaired before he came back;’ on the evening of the accident, this man went to the defendant’s garage and made some repairs, after which, accompanied by the latter’s son, Samuel, he took the car out on a testing tour, during which he made other adjustments; . . . finally, after determining that the machine was in proper condition, Mr. Maher turned it over to Samuel and ‘told him to take the car back to the barn’ or garage from which it had come; the latter pursued a direct route home, and the accident happened on the way; among other pursuits, the defendant conducted a livery stable and undertaking business, and Samuel was in his employ; this son was in the habit of operating his father’s car and was frequently seen driving it. . . .
“In overruling the defendant’s motion for judgment n. o. v., the court below correctly said:
“ ‘There is not a particle of evidence that Samuel was using the car at the time of the accident for his own pleasure or convenience; all the testimony, including his own, is that he was returning it to his father’s garage after Maher had turned it over to him at a point distant not half a mile from the garage; he was on his father’s business just as much as if he had been driving his horse from the blacksmith shop after being shod; he was on the direct route home; he says that his sole purpose was to get the machine back to the garage, . . . and there is no intimation of anything to the contrary in the evidence.’ ”

In other words, in that case the driver of the car was on his father’s business. There was sufficient evidence of authority, partly implied and partly proven by direct evidence, that the son had the father’s general consent to drive his car.

The case of Smith et ux. v. Jamison, 89 Pa. Superior Ct. 99, cited by plaintiff’s counsel, is also distinguishable from the case at bar. The facts in that case were found by the court as follows:

“The testimony shows beyond question that the car was owned by the husband, D. Ray Jamison, and had been purchased and was used for the joint convenience and pleasure of Mrs. Jamison and himself, and that Mrs. Jamison drove it frequently.. The license was issued to them jointly. With respect to the use of the car, D. Ray Jamison testified: ‘Q. That car was used jointly by yourself and wife? A. Yes. Q. Any time she wanted to take it, she had authority to take it? A. Yes.’ . . . Mrs. Jamison frequently used the car while shopping and in the performance of household errands.”

The Superior Court held that the court below properly charged the jury in stating that “if the accident was the result of negligence upon the part of his wife in. parking that car, D. Ray Jamison would be responsible. The law is that when a person purchases an automobile for the convenience, for the benefit, for the pleasure of his wife or family, that he is responsible.”

It is true that some of the language used by the court below, if separated from its context, would tend to support the theory of the plaintiff in the case at bar. This language is as follows:

“Hence, one who keeps an automobile for the pleasure and convenience of himself and family is liable for injuries caused by the negligent operation of a machine while it is being used for the pleasure and convenience of a member of his family.”

This sentence, standing alone, is not in harmony with the opinion of the appellate courts of Pennsylvania. But that the court below did not intend this statement to have the wide application that plaintiff at bar gives it is indicated by the sentences which follow it:

“His liability results from the fact that this car was being used for the purpose he had authorized, and he is prima, fade responsible for its management when in the ordinary use for that purpose. The possession of the car by the wife at the time of the accident in question was the possession of the husband; therefore, that makes the husband alone responsible in this case.”

In the case at bar, the car was not being used for the purpose that the defendant authorized. Its possession by his son was not in any sense the possession of the father, the defendant.

We think the following cases sustain our conclusion that there was not in the record of the case at bar sufficient evidence to warrant the submission of the question of agency to the jury.

In Laubach et al. v. Colley, 283 Pa. 366, 369, the Supreme Court said: “A distinction has been drawn between cars employed for business and pleasure purposes. In the ease of the former, the operation is presumed to be in the master’s service, and the burden rests on him to show the contrary to be true. . . . Where, however, we deal with vehicles used for family needs, a different rule is applied, and it must ordinarily appear, before a recovery may be had, that the person using the motor was engaged on the owner’s work, whether he be a chauffeur ... or a member of the defendant’s household. . . .”

Markle v. Perot, 273 Pa. 4. In that case the plaintiff appealed from the refusal of the court below to take off a non-suit, the reason for its entry being that he had sued the wrong person. The Supreme Court said: “Defendant was the owner of an automobile which, while being driven by his adult son, injured the plaintiff. The reason urged by appellant for fixing liability on the father for his son’s alleged negligence is that the latter was a member of the former’s household, and that the automobile was used at times for the pleasure, comfort and convenience of the family. It is not pretended that, at the time of the accident, the son was engaged on any business of the father, nor is it disputed that he was driving the automobile on a mission of his own — to attend a meeting of a fraternal organization of which he was a member — after obtaining permission from his father to so use it.”

The Supreme Court said, page 5:

“The liability of the owner of a motor-vehicle for the tortious act of a driver of his car, which causes injury to a third person, rests either on the relation of master and servant or of principal and agent between the owner and the driver. Speaking of a state of facts very similar to those we are now considering, the Superior Court, in Kunkle v. Thompson, 67 Pa. Superior Ct. 37, said:
“ ‘The action is not brought against the son who operated the car, but seeks to charge the absent owner with the consequences of the negligent operation of his car by another. Under such circumstances, there is surely no need to discuss the fundamental principles underlying the long line of decisions — nor even for a citation of the cases — which declare that under such a state of facts the relation of master and servant must be established or the doctrine of respondeat superior may not successfully be invoked. This principle has been steadily and continuously asserted by the Supreme Court and this court. . . . The liability, if any, of the defendant cannot rest merely on the ground that he was the father of the person who drove the car. The fact that he was the owner of the ear furnishes no foundation for his liability in the case.’ There, the son, living with his father, was but nineteen years of age, ‘practically manumitted;’ here, while he was living with the father, he was twenty-four years old and employed on his own account.
“Nothing was shown which would charge the defendant with responsibility for his son’s negligence. The residence of the son with his father, and the circumstance that the automobile may have been used at times for the pleasure, comfort or convenience of the family, are not sufficient to establish liability.” To the same effect is Calman et ux. v. Sperry, 276 Pa. 273; Scheel v. Shaw, 60 Pa. Superior Ct. 73.

We believe that in directing a verdict in favor of the defendant in this case we are following the principles laid down in a long line of decisions by the appellate courts of Pennsylvania. We, therefore, must refuse a new trial in this case.

After a review of the record, we are also convinced that the direction of a verdict in favor of the defendant would also have been justified by the absence of proof of negligence on the part of the driver of the defendant’s car. The evidence as to how this collision took place is of vague and indis-tinet character and would as readily support the conclusion that the collision was as much due to the contributory negligence of the plaintiff as to the negligence of the driver of defendant’s car.

Order. — Now, to wit, April 20, 1927, the rule for a new trial in this case is discharged.

From William A. Wilcox, Scranton, Pa.


author: Marx, P. J.,

text:
    Heines’s Estate.

      Decedents’ estates — Husband and wife — Liability of husband for wife’s funeral expenses — Election to take against will.

    Where a surviving husband elects to take against his wife’s will, his primary duty to pay her funeral expenses remains, even though the wife’s will directs the payment of her funeral expenses out of her own estate.
    Exceptions to adjudication. O. C. Berks Co.

      Rothermel & Mauger, for petitioner.
    May 7, 1927.
   Marx, P. J.,

Under an adjudication filed and confirmed nisi on July 11, 1925, in the above estate, this court decreed to Hunter Henninger, the sum of $182.53, the entire balance in court for distribution, on account of decedent’s funeral expenses. The entire claim of the undertaker was $290.93.

By her last will and testament, decedent directed, inter alia, that all her just debts and funeral expenses be paid by her executor. Decedent was survived by her husband, J. Philip Heines, and children by a former husband. The surviving husband elected to take against the will. The children of decedent excepted to the foregoing adjudication, contending that the balance in court should have been decreed, one-third, the share under intestate law of the surviving husband, to Hunter Henninger on account of said funeral expenses, and the remaining two-thirds, in equal shares among decedent’s children. These exceptions raise, as the sole question for determination, the liability of decedent’s estate for the expenses of her burial.

“Where the wife, by law, directs payment of her funeral expenses out of her own estate, this is in relief of the husband, and, as between themselves, exempts him from liability. The rule, however, has no application where he elects to take against the will. Such election is inconsistent with the acceptance of the benefit conferred; for any exoneration from a legal responsibility is tantamount to a legacy:” Rosar’s Estate, 21 Dist. R. 302; Waesch’s Estate, 166 Pa. 204; Melot’s Estate, 231 Pa. 520; Mitchell’s Estate, 79 Pa. Superior Ct. 208, 210.

“The common law duty and liability of the husband still remains. And, therefore, in the settlement of the estate of a deceased wife, while as between the creditor and the decedent her estate is liable for necessaries furnished in her lifetime and the expense of interment, etc., yet the husband is primarily liable therefor, and can be called upon to reimburse the estate. But to prevent circuity of action this is accomplished by deducting from his distributive share the amount the estate was compelled to pay, and for which he is liable: Darmody’s Estate, 6 W. N. C. 487; Costigan’s Estate, 36 Legal Intell. 383; 13 Phila. 264;” Weber’s Estate, 20 Phila. 8, 9.

“If the law be as we have stated, it follows that, though the undertaker in such a case as the present may recover from the wife’s executor, just as in Jenkins v. Tucker he might have done from the father, who employed him, the executor may in turn recover from the husband:” Darmody’s Estate, 13 Phila. 207, 208; Ford’s Estate, 5 D. & C. 523, 524.

The effect of these decisions is that the primary liability of decedent’s husband for her funeral expenses remains by virtue of his election to take against the will. Were his distributive share sufficient to cover the funeral expenses the same might be charged against such share. His distributive share being insufficient to cover the funeral expenses, accountant is subro-gated to the rights of the undertaker, to the extent of the additional payment by the estate, over and above the distributive share of the surviving husband, and may recover the same from the surviving husband by an action at law. This remedy does not, however, relieve the estate of decedent from liability to the undertaker for the payment decreed by the court.

Now, May 7, 1927, the exceptions are dismissed.

Prom Charles K. Derr, Reading, Pa.


author: Reno, P. J.,

text:
    Trexler v. Lehigh Valley Transit Company.

      Negligence — Contributory—Automobiles—Street railways — Rear-end col-lison.

    1. It is the duty of one about to enter upon or near to the tracks of a street railway to look for approaching cars, even though he is required to look backward, and failure to do so in clear cases amounts to contributory negligence as a matter of law.
    2. A driver of an automobile is negligent if, impelled by no necessity to drive near or upon the tracks of a street railway, he does so without looking and without taking proper precautions.
    Trespass for damage to automobile. Rule for judgment for defendant n. o. v. C. P. Lehigh Co., June T., 1926, No. 93.

      Orrin E. Boyle, for plaintiff; Dewalt & Heydt, for defendant and rule.
    March 14, 1927.
   Reno, P. J.,

In Allentown, Hamilton Street runs east and west, and upon it are two tracks of defendant company, the southern track carrying eastward-bound cars and the northern track the west-bound cars. Hamilton Street is intersected by Third and Fourth Streets, which run north and south, and between these streets and parallel to them are the tracks of the Allentown Terminal Railroad. The passenger station of the Allentown Terminal Company, sometimes called the Central Station, is situate on the south side of Hamilton Street, immediately west of the tracks of that company.

At 8.10 A. M. on May 24, 1924, a clear and bright day, plaintiff drove his automobile eastward on Hamilton Street, running along the south side of that street. At the Allentown Terminal Station he passed two of defendant’s trolley cars on the southern tracks. The first car was “a depot car;” the second was a freight car. The freight car was headed eastward and was, when seen by plaintiff, a few feet west of the first track of the Allentown Terminal Railway. Whether the freight car was standing still or was starting is not clear. Upon that point plaintiff testified as follows:

“Q. And this freight car was standing very close to the railroad? A. Yes. . . . Q. The freight car was standing still? A. I didn’t say so. Q. Was it standing still? A. No; it was starting out. Q. When you were near the freight car started out? A. Yes.”

Be that as it may, plaintiff saw the freight car. He drove his automobile across the tracks of the Allentown Terminal Company and kept on in a general eastwardly direction. When he reached a point about fifteen feet east of the eastern rail of the Allentown Terminal tracks, he felt an impact in the rear and to the side of his automobile and found that the freight car had struck him in the rear. The freight car pushed his automobile for a distance of seventy-two feet. In this manner he sustained the injuries to his automobile which form the basis of his action.

Naturally, a part of his automobile occupied the space given to the tracks of the defendant company. It was not necessary that he occupy that space; the southern side of Hamilton Street, between the southernmost rail and the southern curb-line, was admittedly wide enough to permit passage of his automobile, and that space was not occupied by any other vehicles or traffic. Had he used that space the accident would not have occurred. Just when he started to run upon or near the tracks is not clear, but it is undisputed that, before going upon or near the tracks, he did not look to the rear for an approaching car. Upon that point he testified:

“Q. Did you see it come? A. No, I didn’t look behind; I knew it was there when I started to cross over. . . . Q. And you say that you didn’t look at this car at all? A. No; why should I? Why should I have looked back? Q. You say you didn’t look? A. No. . . . Q. But you say that you did not look behind? A. No; when I drive I don’t look behind; I must watch the front and not the rear.”

The jury awarded him a verdict. Upon this motion for judgment n. o. v. the question is: Whether, giving him the benefit of all the evidence in his favor and all the inferences that may be drawn from that evidence, the verdict can be sustained.

We assume, without deciding, that there was sufficient evidence to sustain a finding that defendant company was negligent. This leaves open for discussion this question: Was plaintiff guilty of contributory negligence as a matter of law in going upon or near the defendant’s tracks without looking to the rear for an approaching car?

We cannot escape the conclusion that, if the trolley car was starting and, therefore, in motion when plaintiff passed it at the station, he drove into the path of a moving car without looking to see whether it was safe for him to occupy the tracks. If the trolley car was standing still, he is not in much better shape; for even then he entered the space given over to the trolley cars without looking, knowing that there was a car upon the tracks a short distance behind him. Admittedly, he did not look to the rear before he entered that space. He claims he was not required to look.

The authorities do not support him. Speakman v. Philadelphia and West Chester Traction Co., 42 Pa. Superior Ct. 558, holds (quoting the syllabus) that “if a person drives an automobile with rear and side curtain down, at a speed of ten or fifteen miles an hour, in the daytime and too close to a trolley track for a car to clear the machine and the machine is struck from behind by a car which'the driver of the machine could have avoided if he had looked back, the driver is guilty of contributory negligence as a matter of law and there is no case for the jury.” In the opinion, Judge Morrison says: “In the present case the plaintiff does not pretend that he looked back or that he took any precaution to prevent such an accident as the one that occurred, except to run his automobile at a speed of ten or fifteen miles an hour too close to the trolley track for a car to clear his machine. If he was relying on his companion to look back and warn him of an approaching car, it is absolutely certain that the latter did not discharge his duty, because he neither saw nor heard the car until it struck the automobile. From this state of facts we are unable to reach a conclusion that the plaintiff was not guilty of contributory negligence. If it was not careless of him to drive his automobile in the manner above indicated, without looking back along the track or having his companion do so, then we are at a loss to understand what carelessness means. And if he was careless in the circumstances which are not in dispute, such carelessness amounted to contributory negligence.”

Of course, this rule does not apply in all circumstances. When a person enters the tracks of a street railway and, looking back, sees no car in sight, and then proceeds upon the tracks for a considerable distance because the sides of the street are blocked in such manner as to prevent his leaving the tracks, he is not chargeable with contributory negligence as a matter of law: Fleck v. Altoona and Logan Valley Electric Ry. Co., 62 Pa. Superior Ct. 500. From these cases and from many others which might be cited to sustain the proposition, this principle may be deduced: That it is the duty of one about to enter upon or near to the tracks of a trolley company to look for approaching cars, even though he is required to look backward, and that his failure to do so in clear cases amounts to contributory negligence as a matter of law.

The cases cited by plaintiff do not help him. In Sieb v. Central Pennsylvania Traction Co., 47 Pa. Superior Ct. 228, a passenger upon a team was injured when a horse became frightened and, being beyond the control of the driver, ran upon the tracks at a distance of sixty to eighty feet in front of a trolley car which could have been stopped within thirty feet. Of course, the driver was placed in position of peril unexpectedly and without fault of his own, and in these circumstances the court could not as a matter of law pronounce him contributorily negligent. Kulp v. Lehigh Valley Transit Co., 81 Pa. Superior Ct. 296, is another instance of an injury to a guest, and what is there said upon the subject of contributory negligence relates to the question of imputing the negligence of the driver to the guest. Fisher v. Philadelphia Rapid Transit Co., 82 Pa. Superior Ct. 262, decides nothing concerning contributory negligence; the sole question in that case was “whether there was sufficient evidence of negligence of defendant which required the submission of the case to the jury.” Nor is it likely that the court could have sustained an allegation of contributory negligence, for the driver entered upon the tracks when the trolley car was 250 to 275 feet away and the automobile had proceeded for a distance of sixty or seventy feet before it was struck. Hence, it might have been said, as in Gordon v. Beaver Valley Traction Co., 247 Pa. 248, also cited by plaintiff, that plaintiffs were “fairly upon the track at a considerable distance in advance of the car,” which is not the situation here. Hope v. Southern Pennsylvania Traction Co., 270 Pa. 115, affords no comfort to plaintiff, for it is there said that “plaintiff had a right to use the road and to turn toward or upon the tracks of defendant company, if necessity required that she do so, subject, however, to the duty of looking for approaching cars and taking proper precautions to avoid a collision.” And plaintiff having testified that “she looked back through the glass inserts and, riot seeing a car in sight, drove toward and close to the car tracks,” the case was necessarily for the jury. But this is not the case at bar. There was no necessity which impelled this plaintiff to drive near or upon the tracks; yet he did so without looking and without taking proper precautions. He was thereby guilty of contributory negligence, and we are required to pronounce it as a matter of law.

Now, March 14, 1927, the rule to show cause why judgment n. o. v. should not be entered is sustained and judgment n. o. v. for the defendant is hereby entered. Prom Edwin L. Kohler, Allentown, Pa.


author: Gordon, Jr., J.,

text:
    Commonwealth v. Commander et al.

      Criminal law — Murder—Twice in jeopardy — Lower grades of homicide— Constitutional law.

    1. The constitutional right of. a person not to be put in jeopardy twice for the same offense extends only to capital offenses, and not to lesser grades of homicide which are not punished capitally.
    2. The Constitution prescribes no particular method or procedure by which such right may, in practice, be secured, and any course which secures the full right to the accused is an adequate compliance with the constitutional guarantee.
    3. A plea of former jeopardy may be sustained as to first degree murder and overruled as to second degree.
    4. Where a person is indicted for murder, and at the trial a juror is withdrawn, and the case continued because of absence of witnesses for the Commonwealth, and thereafter a plea of twice in jeopardy is filed by the prisoner, such plea may be overruled as to second degree murder and sustained as to first degree murder.
    5. At the second trial, the defendant’s rights will be protected by binding instructions that the jury cannot convict of murder of the first degree.
    6. Such instructions do not take from the jury the right to determine the degree of the murder.
    Demurrer to plea. 0. and T. Phila. Co., Aug. Sess., 1926, No. 1092.

      E. V. Alessandroni, Assistant District Attorney, for Commonwealth.

      T. J. Minniek and D. S. Malis, for defendants.
    Jan. 21, 1928.
   Gordon, Jr., J.,

This case is before us upon pleas of former jeopardy filed by the defendants, to which the Commonwealth has demurred.

We cannot agree with all of the facts contained in the stipulation of counsel filed in the case. The variance between our knowledge of the matter and the stipulation, however, does not affect the legal conclusion here reached. We may, therefore, state the controlling facts of the case as follows: The indictment charges murder, and when the case was called for trial the district attorney stated, in open court, that the Commonwealth did not intend to press for a verdict of murder of the first degree, as the evidence would not warrant it in so asking. Many of the usual formalities requisite in a trial for murder of the first degree were, therefore, dispensed with, and both the Commonwealth and the defense proceeded to trial as if a capital offense had not been charged. The defendants were tried jointly and the jury were not examined under oath on their voir dire, but were called, examined informally and accepted or rejected until the eleventh juror was in the box. During the selection of the jury the court recessed and those already chosen were allowed to separate with the consent of the defendants. After the eleventh juror was chosen, the district attorney informed the court and counsel for the defendants, at side bar, that, although the only material witness to the alleged homicide had been subpoenaed, he could not then be found, but that the Commonwealth hoped to be able to find the witness by the following day. As the regular adjournment hour had not been reached, the court told counsel for the defendants that it would complete the drawing of the jury, or postpone filling the last place in the box to the following day, if the defendants so desired. The defendants’ counsel declined to make any arrangement upon the subject, and, inasmuch as the case had been treated as a non-capital offense, and it had been agreed that there was no necessity for keeping the jury together, the court concluded the filling of the panel, adjourned for the day and permitted the jury, with the consent of the defendants, to separate and go to their homes overnight. On the following day the district attorney informed the court that the Commonwealth had been unable to procure the missing witness and was not in a position, therefore, to go on with the case. In view of the circumstances, the trial judge thereupon withdrew a juror and continued the case, over the objection of the defendants. The defendants thereafter presented the pleas of former jeopardy now before us on the foregoing facts, and the question presented for our consideration is whether, under these circumstances, the pleas of former jeopardy are good, and, if so, to what extent they are valid pleas.

There is no doubt that, so far as a capital offense is concerned, a plea of former jeopardy under these circumstances is good. There was no overwhelming necessity, such as the serious illness of a juror, which would have justified the trial judge in withdrawing a juror and continuing the case. This the Commonwealth concedes. It is contended, however, that the right of a person not to be put in jeopardy twice for the same offense, which is guaranteed to the citizen by the Constitution, extends only to capital offenses; that such a plea is not available to those lesser grades of homicide which are not-punished capitally; and that, therefore, while the pleas should be sustained, in so far as the capital offense of murder of the first degree is concerned, they should be overruled as to the charge of second degree murder comprehended within the bill of indictment under consideration. The defendants, on the other hand, reply to this argument, that the offense charged is the single offense of murder; that the degrees of murder are not differentiated into distinct offenses, even though the penalty in the one case is death and in the other imprisonment, and that, therefore, a plea of former jeopardy which is good as to the higher grade of murder bars a prosecution for either grade, the plea being to the indictment and not to the grade of the offense.

We have carefully considered the able and exhaustive argument presented by counsel for the defendants in support of this contention. The problem is by no means free from difficulty, but we are satisfied that this contention cannot be supported by authority or reason.

Article I, section 10, of the Constitution of Pennsylvania provides that: “. . . no person shall, for the same offense, be twice put in jeopardy of life or limb. . . .”

It has been definitely settled that this provision of the Constitution applies to capital offenses only (McCreary et al. v. Com., 29 Pa. 323), and, therefore, as long as the citizen is adequately accorded the right thus guaranteed, he cannot complain that it has been denied him. The Constitution prescribes no particular method or procedure by which that right may, in practice, be secured, and any course which secures the full right to the accused is an adequate compliance with the constitutional guarantee. The accused is not given any right to the enforcement of the guarantee in his favor by any particular method or procedure, and if one method would operate to give him immunity from prosecution for more than is guaranteed to him by the Com-stitution, while another fully and adequately secures his right and at the same time accords to the Commonwealth all of its rights, the accused cannot demand that the practice more advantageous to him be followed. If, therefore, on the one hand, a plea of former jeopardy would operate to debar the Commonwealth from its right of prosecution for the lesser offense of murder of the second degree, while, on the other hand, the power of the court over an improper verdict by binding instructions would fully protect a defendant in his constitutional rights, and at the same time enable the Commonwealth to require him to answer for the grade of homicide not punished by death, there is nothing in the Constitution which would prevent the latter method or practice from being adopted in preference to the former.

Since there is no constitutional regulation of the manner in which the right against former jeopardy shall be secured to the accused, it remains only to determine, first, whether a plea can be sustained as to murder of the first degree and overruled as to murder of the second degree; and, second, whether, assuming that it cannot, a defendant’s rights can be adequately secured by overruling the plea and leaving it to the trial court at the second trial to protect him by giving binding instructions to the jury that they cannot convict of murder of the first degree.

Considering the first of these questions, the Act of March 31, 1860, § 74, P. L. 382, upon the subject of murder, provides: “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder of the first or second degree. . . .”

Under another section of the Act of 1860, indictments for murder were much simplified in form, but the fundamental distinction in law between murder in its different degrees was reiterated and accentuated by the section of the act just quoted. The higher grade of the offense is characterized by distinct, separate and controlling elements, and the penalty imposed is, of course, radically different. There is as much difference between murder of the first and murder of the second degrees as between robbery and larceny; or assault and battery to kill and aggravated assault and battery. Indeed, in the offense of murder itself, the decisions of our higher courts have recognized the distinct and independent nature of the two grades of the crime, for it has been held that a conviction of murder of the second degree bars a subsequent prosecution for murder of the first degree, notwithstanding the indictment contains but one count, because the conviction of the lower constitutes an acquittal of the higher offense: Com. v. Deitrick, 221 Pa. 7. The offenses being distinct, we see no objection in law to sustaining the pleas before us to the offense which is capital in its nature, and overruling them as to that which is not capital. Although there appears to be no reported case upon the subject, it would seem to us that, during the period in which robbery was a capital offense and larceny was not, a plea of former jeopardy to an indictment for robbery would not have barred a subsequent prosecution for larceny, even though larceny is a constituent element of robbery, and, under a robbery bill, a jury could acquit of the higher offense and convict of the lesser. It may be conceded that, in the few cases in this Commonwealth in which the question of former jeopardy has been treated by our higher courts, such a plea has been sustained generally to the indictment and the prisoner discharged. The negative pregnant from this is forceful; but it may be noted that the question here under consideration does not appear in any of those cases to have been raised or considered, and we take it that a lower court is not bound by a mere inference from a decision, unless such an inference is conclusive and unescapable. This is particularly so where the validity of the inference, and the intention of the court so to hold, may be reasonably questioned.

We, therefore, conclude, upon the proposition now under consideration, that a plea of former jeopardy may be sustained as to first degree and overruled as to second degree murder, and that the defendants’ pleas before us are, therefore, good, in so far as the offense of murder of the first degree is concerned, and should, to that extent, be sustained; but that they are not good as to murder of the second degree, or as to any other non-capital offense comprehended in the indictment, and, as to such offenses, should be overruled.

If it be assumed, however, for the sake of argument, that in sustaining a plea of this character the defendant must be discharged from the indictment generally and the Commonwealth be thus deprived of its rights, such a course should not be followed unless the defendant’s rights cannot be secured to him in any other effective way.

This brings us to the second and last question for consideration; that is to say, whether a defendant’s rights can be adequately secured by overruling the plea and leaving it to the trial court at the second trial to protect him by giving binding instructions to the jury that they cannot convict of murder of the first degree. It is true that our higher courts have repeatedly declared that the determination of the degree of a murder cannot be taken from the jury; that this is its exclusive province: Lane v. Com., 59 Pa. 371. It will be noted, however, that this has only been said in connection with attempts of lower courts to limit the jury to a conviction of first degree murder or acquittal. In such cases it is well settled as a cardinal principle of law that the right of the jury to fix even a first degree murder at second degree cannot be taken from them. The reverse of this principle does not follow, however. The power of the court to protect the defendant from an improper conviction is equally well settled, and is constantly recognized and employed in all forms of crime, even to the extent of binding instructions for a full acquittal. Indeed, in prosecutions for murder itself, as has already been pointed out, it is the duty of the trial judge to protect a defendant on his second trial, after a conviction of second degree murder, by instructing that there can be no conviction of the higher degree. “Such instruction cannot be considered as a determination of the degree by the trial judge; it is a determination by the law:” Com. v. Deitrick, supra. It follows, therefore, that, since the defendants’ constitutional rights can be fully and adequately protected at their second trial by the trial court, they are not entitled to have their pleas sustained if to do so would injuriously affect the interests of the Commonwealth.

The Commonwealth’s demurrer to the defendants’ pleas of former jeopardy are, accordingly, overruled as to murder of the first degree and sustained as to murder of the second degree.


author: Martin, P. J.,

text:
    Hurley v. Hurley.

      Divorce — Alimony — Estate by entireties — Execution — Act of May 2U, 1928.

    Where a husband and wife hold an estate- by entireties and alimony has accrued against the husband in divorce proceedings, execution may issue, under the Act of May 24, 1923, P. L. 446, against the real estate held by entireties.
    Rule to show cause why execution should not issue against real estate for alimony. C. P. No. 5, Phila. Co., Sept. T., 1926, No. 552.

      F. L. Styles, for rule; B. P. Alexander, contra.
    Feb. 8, 1928.
   Martin, P. J.,

Libellant filed a libel in divorce, and a subpoena was served on respondent. An order was made upon respondent, on Oct. 25, 1926, requiring him to pay libellant $25 a month alimony.

On Dec. 9, 1927, a petition was filed by libellant, averring that alimony amounting to $325 was in arrear and unpaid by respondent; that she and respondent owned as tenants by entireties a property No. 2120 West Master Street, in the City of Philadelphia; and praying for a rule requiring respondent and the prothonotary of the Common Pleas Courts of Philadelphia County to show cause why execution should not issue against the property. The rule was granted.

The Act of May 24, 1923, P. L. 446, provides that whenever a husband and wife shall hold real estate by entireties, and the wife has secured an order or decree against her husband for the support of herself, it shall be lawful to issue execution against the real estate held' by entireties and to sell the same in the manner provided by law for the sale of real estate on execution issued on a judgment.

The petition avers that the order for the payment of $25 a month was made by the court; that respondent has refused to pay; that the arrears on Dec. 8, 1927, amounted to $325; and that the property is held by libellant and respondent as tenants by entireties.

No answer was filed to the petition.

And now, to wit, Feb. 8, 1928, the rule to show cause why execution should not issue against the property No. 2120 West Master Street, the title to which is vested in Wesley and Julia Hurley as tenants by entireties, is made absolute, and the prothonotary is directed to enter judgment against respondent, Wesley Hurley, and in favor of libellant, Julia Hurley, for the sum of $325, with interest to date, making the total amount of the judgment $328.25.


author: Lamoeelle, P. J.,

text:
    Gehringer’s Estate.

      Fiduciaries Act — Exemption of $500 — Rights of adult and minor children — Act of June 7, 1917.

    1. Under section 12 (a) and (e) of the Fiduciaries Act of June 7, 19-17, P. L. 447, an adult child of decedent, forming part of his family, and a minor child are entitled each to his pro rata interest in the exemption of $500.
    2. Even where the application is made by the executor or administrator to set aside the exemption in favor of the minor, the minor is entitled only to such part of the $500 as, taken with the interest of the other children forming part of the family of the decedent at the time of his death, makes the total sum.
    3. The word "children” as used in this section of the act indicates relationship as distinguished from age.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1927, No. 14.
    Decedent was a widower with three sons, of whom Charles was married and lived away from home; George, an adult, and Theodore, a minor, unmarried, lived with decedent and made their home with with him as part of his family. The whole exemption was claimed by the administrator for the benefit of Theodore to the exclusion of George.
    The Auditing Judge, Van Dusen, J., said in his adjudication: “The exemption is intended for immediate family necessities, which do not depend on age. I . . . accordingly award the $500 exemption equally to George and Theodore, the share of the latter to be paid to his guardian, George Gehringer.”

      G. E. Letchworth, Jr., for exceptions.
    March 14, 1928.
   Lamoeelle, P. J.,

What is said by the present Chief Justice in Miles’s Estate, 272 Pa. 329, 339, “and when the statute under consideration is a general revision, ‘the law as therein written will be deemed to be the same as it stood prior to the revision, unless we find from the statute itself, or its history, a clear intention to change it:’ In re Lis’s Estate, 139 N. W. Repr. 300, 302, and cases there cited; see, also, authorities in 36 Cyc., 1223,” is applicable with like effect to the instant case. This opinion contains an elaborate exposition of the Intestate Act of June 7, 1917, P. L. 429, and two seemingly contradictory sections are harmonized in such a way as to show that, notwithstanding the wording of section 10, there was no intention to allow second cousins to participate in the distribution of an intestate’s estate where first cousins were alive. By analogy, the reasoning and the conclusions apply, as hereinbefore stated, to the present case.

Here we have a decedent dying, survived by three children, two of whom formed part of his household at the time of his decease; one a minor and the other of age. Exemption was claimed by the administrator for the benefit of the minor alone, the adult being ignored. The Auditing Judge, after citing and discussing section 12 (a) and (e) of the Fiduciaries Act of June 7, 1917, P. L. 447, awarded $500, one-half to the adult and the other one-half to the guardian of the minor.

The administrator filed exceptions to this ruling, and thus the matter comes before the court in banc.

Prior to the passing of the Fiduciaries Act of 1917, the law was well settled. Filemyr’s Estate, 17 Dist. R. 880, is directly in point; the facts are on all fours. An adult daughter and a minor daughter lived with the decedent at the time of death. The exemption ($300 at that time) was awarded equally to the two children.

Section 12 (a) of Fiduciaries Act of 1917, so far as applicable to the facts in the instant case, provides as follows: “The widow, if any, or, if there be no widow or if she has forfeited her rights, then the children forming part of the family of any decedent dying, testate or intestate, within this Commonwealth, or dying outside this Commonwealth, but whose estate is settled in this Commonwealth, may retain or claim either real or personal property, or the proceeds of either real or personal property, belonging to said estate, to the value of five hundred dollars. . . .”

The word “children” is used in the sense of relationship (see Lane’s Estate, 6 Dist. R. 618; Hoffman’s Estate, 11 Dist. R. 551), rather than as relating to age.

Section 12 (e) reads: “In the case of any decedent leaving to survive him any minor child or children forming part of his family, and no widow, his administrator or executor, without request made to him by any one, shall have appraised and set aside, for the use and benefit of all such minor children of said decedent, property to the full value of five hundred dollars.”

Standing alone and because of the wording “property to the full value of five hundred dollars,” it would exclude the adult child. It must, however, be read in connection with section 12 (a), in which circumstances not $500, but such part alone thereof as makes up the total exemption is to be set apart for the minor. The widow or children who have attained their majority must act of their own accord; failing to act, no duty devolves on the executor or administrator. When, however, the rights of minors are concerned, a duty is imposed upon the fiduciary; with him is the laboring oar, and this for obvious reasons; and what he is called upon to claim is the minor’s share of the $500. In the present case, acting upon a mistaken interpretation of section 12 (e), and despite the fact that there was a guardian, he claimed everything.

All exceptions are dismissed, and the adjudication is confirmed absolutely.

Van Dusen, J., did not sit.


text:
    Fulton v. Arnold.

      Practice Act, 1915 — Plaintiff’s statement — Clarity and conciseness — Striking off — More specific statement.

    1. Unless a party can affirmatively show that, by the failure of his adversary to comply literally with the provisions of the Practice Act of May 14, 1915, P. L. 483, he is actually and in fact, not fancifully or theoretically, injured or prejudiced by a pleading', or that the preparation of an adequate answer is rendered more than ordinarily difficult, or the preparation for trial upon the merits is rendered unduly perplexing, or that a failure of justice may result, motions to strike off will be overruled.
    2. In an action in trespass where defendant is not obliged to file an affidavit of defense unless he relies upon an affirmative defense, if he fails to allege that he intends to answer plaintiff’s statement and is embarrassed in preparing his answer, a motion to strike off the statement will be refused.
    3. If a statement is not sufficiently specific, the remedy is not through a motion to strike off, but by a rule for a more specific statement.
    Motion to strike off plaintiff’s statement. C. P. Lehigh Co., April T., 1927, No. 64.

      Dallas Dillinger, for plaintiff.

      Robert G. Kleckner, for defendant and motion.
    June 6, 1927.
   Reno, P. J.,

Here is a ease which aptly illustrates how the Practice Act of 1915 operates “to simplify pleading and expedite cases.” Instead of simplifying pleading, it has immeasurably complicated it; so far from expediting cases, it has clogged the judicial processes. Without promoting justice, it encourages quibbling with technical niceties; instead of speeding cases, it halts them and subjects them to preliminary examination for the uncrossed “t” and the undotted “i.” Form is exalted above substance, and the administration of justice, ostensibly a consecrated search for truth, is debased to ignoble raking in mucks of words and paragraphs. The judge is no longer an arbiter of law; he has become a schoolmaster, a professor of rhetoric, a critic of syntax, a fatuous referee between flatulent logomachists. Microscopic violations of rules of paragraph construction, fine-spun theories of grammar, delicate shades of verbal meanings, wordy discussions of differences between material facts and material allegations, the age-old conflict between Tweedledum and Tweedledee, are thrust upon his attention until he finds himself inhabiting a world of mere words, from which the realities of life and ideals of justice have been effectually excluded. The ancient school-men, solemnly speculating upon their universals, their quiddities, their categories, their predicables and such other metaphysical hocus-pocus, were no more absurd and not less futile than modern judges, ponderously appraising battology, perissology, anacoluthonics, dialectics and the other learned nonsense injected into the law by the rashly conceived and unskillfully drawn Practice Act. As a result, they are producing what, with all due deference, Francis Bacon said of similar effusions, “cobwebs of learning, admirable for the fineness of thread and work, but of no substance or profit.”

The cause of action is crim. con. It is a trespass. Defendant is not obliged to file an affidavit of defence unless he relies upon an affirmative defence. Even so, he can set up his affirmative defence by an affidavit of defence which does not specifically answer the allegations of the statement. Yet, without averring that he intends to answer the statement and is embarrassed in preparing his answer, he complains most stridently of plaintiff’s statement and moves to strike it off.

He avers that plaintiff’s statement is vague, uncertain and ambiguous; that it is not in a concise, summary and brief form; that it lacks particularity; that it contains evidence, inferences, conclusions, innuendoes and circumlocutions; that it is improperly paragraphed and that some paragraphs contain more than a single material allegation. In fine, defendant alleges that plaintiff has committed every offence possible under the Practice Act.

There is some force in his contention. The statement, not quite so defective as defendant charges, violates in some particulars the provisions of the Practice Act. But, although unskillfully drawn, this much is certain: defendant is charged with debauching plaintiff’s wife. Hence, defendant is apprised of the nature of the charge against him. The primary object of all pleading has been accomplished. Shall we, nevertheless, condemn the statement because it fails to comply entirely with certain rigid, technical, artificial, legislative canons of pleadings? Must we condemn the pleading merely because it offends a legislative mandate without inquiring whether defendant has been or will be injured by it?

Plainly, defendant has not been injured; no judgment, interlocutory or definitive, has been entered against him. Nor will he be injured. Even if he decides to file an affidavit of defence (and it does not now appear that he intends to file one), he can readily frame an answer to every allegation in the statement, including the allegations grouped in one paragraph. What earthly injury has he suffered by the circumstance that he is accused of three acts of adultery in one paragraph? Would his position be any better if three paragraphs were devoted to that proposition? Would he encounter less difficulty if plaintiff, instead of dealing in polite, almost chaste, circumlocutions, had boldly and blandly called a spade a spade? Is his position better or worse because plaintiff periphrastically charges that defendant “did in those cities remain with the said Ottilia Fulton as the husband of Ottilia Fulton?” Of course, instead of resorting to weasel words, plaintiff should have averred that in the cities named defendant had carnal intercourse with plaintiff’s wife; but we ask again, how is defendant injured by the pleading? Sufficiently apprised of the nature of the charge, he can file an adequate answer if he deems that step wise or necessary, and certainly he can prepare a defence for the trial. The errors are harmless, unprejudicial, injuria absque damno. His case is like a thousand others; his right to a technically correct pleading has been impinged, but no substantial right has been invaded. Hence, his case, like so many others, calls for the application of the “harmless error” doctrine, which, even if heretofore limited to cases in the appellate courts, should be, and inevitably must be, extended to the consideration in limine of motions to strike off pleadings.

Accordingly, and following obiter dieta in Schleicher v. Hunsicker, 10 Lehigh Co. L. J. 181; 4 D. & C. 309, we rule that unless a party can affirmatively show that by the failure of his adversary to comply literally with the provisions of the Practice Act, he is actually and in fact, not fancifully or theoretically, injured or prejudiced by a pleading, or that the preparation of an adequate answer is rendered more than ordinarily difficult, or the preparation for trial upon the merits is rendered unduly perplexing, or that a failure of justice may result, we shall overrule motions to strike off. In other words, a pleading will not be stricken off whenever a complaining party shows that his adversary has violated the letter of the act; he must show a resultant injury clearly, infallibly and positively. Until he does so, we shall, in the exercise of the judicial discretion palpably vested by the words “may strike from the record” (section 21), refuse such motions.

One would suppose that defendant’s objection to the length and verbosity of plaintiff’s statement would, at least subjectively, estop him from criticising it for omissions. But there are no such limitations upon defendant’s critical powers. In one breath he demands brevity; with the next he requires particularity and specificity, sublimely indifferent to the essential contradiction involved. Thus, he complains because dates and even the hours of alleged clandestine meetings are not set forth, because the place where the plaintiff and his wife were married is not designated, because alleged gifts of jewelry and wearing apparel are not fully described; as though a masculine pleader could describe women’s clothing concisely, summarily and briefly! Yet, if these factors had been fully developed, should we not have heard a complaint concerning the inclusion of evidence, a lack of conciseness, a breach of the requirement of brevity? Be that as it may, it is well settled that if the statement is not sufficiently specific, the remedy is not a motion to strike off, but a rule for a more specific statement: Rhodes v. Terheyden, 272 Pa. 397.

Now, June 6, 1927, the motion to strike off is overruled.

From Edwin L. Kohler, Allentown, Pa.