author: MacDade, J.,

text:
    Di Marcantonio v. State Workmen’s Insurance Fund et al.

      Morton Z. Paul, for claimant; Ralph H. Behney, for defendants.
    March 21, 1931.
   MacDade, J.,

Claimant herein has filed a petition seeking compensation in behalf of herself and minor children for the death of her husband, which occurred on Sept. 20, 1928, while employed by the employer defendant.

The cause of the accidental death is given in the petition as “seven explosions of dynamite had been set off and deceased was asphyxiated by gases and died.”

The referee after answer and hearing awarded compensation, and the defendant then appealed to the Workmen’s Compensation Board, contending that the referee’s findings of fact were not supported by the evidence and that there was error as to the conclusions of law and award.

The contention of the claimant then as now was that poisonous gases, and particularly carbon monoxide, caused the death of the decedent, which occurred in a stone quarry and during the course of his employment with the defendant.

The defendant then set up that this was not the cause of death and that there “'was no testimony to support such a finding of fact that his death was the result of an accident as provided by the Compensation Act.

However, the Workmen’s Compensation Board, in an opinion filed Jan. 30, 1930, in stating that the referee had correctly decided the case and that his findings were amply sustained by the evidence, said, inter alia: “Our examination of the testimony convinces us that the claimant has met the burden of proof by showing the decedent’s death was caused by such gases.”

Prom this award we had an appeal to review the record as thus made up and as well for our consideration whether to grant a rehearing in accordance with a prayer of the defendant in a petition for a rehearing duly filed.

Therefore — to summarize — after hearing on the original petition and answer, the referee awarded compensation, finding that the decedent died as the result of carbon monoxide poison in the course of his employment with his employer on Sept. 21, 1928. The Workmen’s Compensation Board found that this finding of the referee was based on the preponderance of competent and convincing testimony in the case, and affirmed the action and award of the referee.

The case was then appealed to this court, which was of the opinion that additional testimony should be taken, and remitted the record to the board for such testimony.

The testimony of Dr. J. C. Attix, explosive expert, and Dr. J. M. Hutchins, who performed the post-mortem on the body of decedent subsequent to his death, was added to the record, and the referee again found that the deceased husband of claimant died “as the result of carbon monoxide poison in the course of his employment with his employer on Sept. 21, 1928.” The referee has made a very careful analysis and complete summary of the testimony and there is little that we can add to this and our former opinion.

However, a further appeal was taken from the referee’s award to the said board, and the latter has again affirmed the action and award of the referee (see opinion filed Jan. 22, 1931).

Now this court has another appeal (filed Peb. 21, 1931) before it, which we shall now consider in connection with the exceptions filed, which are as follows:

“1. That the board erred in sustaining the findings of fact and conclusions of law of the referee.
“2. That the board erred in dismissing the defendant’s appeal.
“3. That neither the referee nor the Workmen’s-Compensation Board had before it sufficient, competent evidence to sustain the finding of fact made by the referee in his third finding of fact, which, in part, reads as follows:
' “ ‘3. On Sept. 20, 1928, claimant’s decedent, Ernesto Di Marcantonio, while in the course of his employment with Lewis Snyder, the employer, working in a stone quarry at Springfield, Delaware County, Pennsylvania, several minutes after seven blasts of dynamite had been exploded, entered the quarry into a hole about four feet deep, excavated by the explosion, and several minutes thereafter called for help, when a co-employee, Angelo Capuzzi, went to his rescue. He found him sitting on a stone and a few minutes thereafter fell unconscious. He was then taken out of the quarry, removed to the Delaware County Hospital, where he died the following day.’
“Appellant avers that there is no evidence to support this finding, but, on the contrary, the evidence as to time indicates that seven pop blasts were set off in the quarry at 8 or 8.15 A. M. on the morning in question and claimant’s husband collapsed on the premises at 9 or 9.15 A. M. on said day, and was received at the hospital at or about 10 A. M.; and instead of several moments intervening between the time when the employee entered the quarry and his being overcome, the evidence is clear, positive and unequivocal that approximately one hour intervened between the time when the seven small blasts were set off and the collapse of this employee, which evidence is further corroborated by the testimony of the employer that he observed the pile of small broken stone made by said employee out of the stone that was broken up into small pieces by the seven pop blasts in question.
“4. That the referee did not have any competent or sufficient evidence of the presence of carbon monoxide gas upon the premises of the employer at the time he suffered the cerebral hemorrhage from which he died, which finding was affirmed by the Workmen’s Compensation Board without the taking of additional testimony and without having before it any evidence to support the said finding.
“5. That neither the referee nor the Workmen’s Compensation Board had before it any sufficient or competent evidence to support its finding ‘. . . that the decedent died as the result of carbon monoxide poison in the course of his employment with his employer on Sept. 21, 1928. . . .’
“On the contrary, your appellant avers that the evidence unmistakably shows that deceased employee died as a result of a cerebral hemorrhage; that a clot of blood the size of a silver dollar was found in the brain of decedent at the autopsy made on his body; that the blood stream was not light pinkish in color and of that type or structure which is found in persons suffering from the effects of carbon monoxide poisoning; and that the lungs and pulmonary organs of deceased employee showed no effect from the inhalation of carbon monoxide gas; all of which evidence is incompatible and contrary to the finding that this death was caused or aggravated by inhaling carbon monoxide gas.
“6. That claimant has failed to meet the burden of proof resting upon her to prove by expert medical testimony that the death of her deceased husband was actually caused by the alleged cause, since there was no evidence before the referee of the presence of carbon monoxide gas in the quarry of the employer at 9 or 9.15 A. M., and since the autopsy made upon the body of the deceased employee conclusively showed that death was caused by a cerebral hemorrhage due to sclerosis of the artery in the brain.
“7. That the evidence offered by the medical experts produced by the claimant, and testifying in her behalf, does not meet the well recognized standard or rule of evidence required of one bearing the burden of proof, in view of the well recognized rule of law that when a plaintiff depends on medical testimony, ‘the witness would have to testify, hot that the condition of plaintiff might have, or even probably did, come from the accident, but that, in his professional opinion, the result in question came from the cause alleged.’
“8. That the referee and board erred, as a matter of law, in granting compensation to the claimant, in view of the fact that the expert testimony relied upon by the claimant to sustain her contention utterly lacked the consistency required of proofs of this character when submitted by one charged with meeting and sustaining the burden of proof.
“9. That the board erred, as a matter of law, in granting compensation to this claimant, because the said compensation authorities were dependent upon expert testimony to enable them to intelligently reach a decision, and the record in this case discloses that the claimant, having produced medical experts to testify on her behalf, offered inconsistent testimony as to the alleged cause of death and let the compensation authorities to guess at which of the theories advanced by claimant on her behalf was correct, defendant contending that the compensation authorities cannot and are not obliged to choose between inconsistent and equivocal evidence tendered by the claimant’s medical experts.
“10. That the referee and board erred, as a matter of law, in awarding compensation, in view of the testimony offered by the several expert witnesses called by the claimant to establish, by their opinions, the superinducing cause of the death of claimant’s deceased husband, in view of the inconsistent evidence offered and produced by the several experts to establish this claim; since the doctrine of the law is well defined that expert opinions offered on behalf of a claimant must so harmonize that a finding be not based upon the acceptance of one or the other of two or more inconsistent inferences, for in such circumstances the adoption of either would be a mere guess and the plaintiff would thus have been relieved from the necessity of sustaining the burden of proof resting upon her.
“11. That in view of the undisputed and uncontradicted testimony of Dr. Hutchins, who performed the autopsy, that he found a clot of blood the size of a silver dollar in decedent’s brain, the finding of the referee, as affirmed by the board, that the employee died as a result of carbon monoxide poison is utterly inconsistent with all the evidence given by the medical witnesses to the effect that when a person suffers carbon monoxide poisoning, the red corpuscles of the blood are destroyed; that the blood has a light pinkish color; that the blood of such a person will not clot or congeal; none of such evidence having been contradicted by any of the witnesses appearing before the referee.
“12. That the Workmen’s Compensation Board erred in affirming the award of the referee.”

These proceedings seem to be regular and in accordance with the practice suggested in Johnson v. State Workmen’s Insurance Fund, 100 Pa. Superior Ct. 12.

It is also a fact that compensation authorities are to decide all questions of fact and the court is to decide those of law: Johnson v. State Workmen’s Insurance Fund, supra.

Indeed, the findings- of the compensation authorities, supported by competent proof, and the inference to be drawn therefrom, are as conclusive on the courts as the verdict of a jury: Krischunas v. Phila. & Reading C. & I. Co., 296 Pa. 216; Johnston v. Payne-Yost C. Co., 292 Pa. 509; Todd v. State Workmen’s Insurance Fund, 295 Pa. 14; Piper v. Adams Express Co., 270 Pa. 54; Ford v. A. E. Dick Co., 288 Pa. 140.

We are limited to a determination, in this appeal, of the questions whether or not there is competent evidence to support the findings, and whether the law has been properly applied: Rodman v. Smedley, 276 Pa. 296; Poffinberger v. Martin Co., 83 Pa. Superior Ct. 524; McCarthy v. General Electric Co., 293 Pa. 448; Bradley v. Congoleum Nairn, Inc., 92 Pa. Superior Ct. 374.

If the findings of fact herein are from ample positive evidence and inferences therefrom do sustain them, we cannot interfere: Kuca v. Lehigh Valley Coal Co., 268 Pa. 163; Dainty v. Jones & Laughlin Steel Co., 263 Pa. 109; Poluskiewicz v. Phila. & Reading Co., 257 Pa. 305; Morris v. Vough Coal Co., 266 Pa. 216; Todd v. Lehigh Valley Coal Co., 297 Pa. 302; Walsh v. Glen Alden Coal Co., 99 Pa. Superior Ct. 58.

It is not for us to weigh the evidence and to reverse the findings of fact of the referee and the Workmen's Compensation Board, our province being to determine whether there was competent and sufficient evidence to sustain the referee’s findings of fact in the instant ease and whether the law was correctly applied: Rodman v. Smedley, 276 Pa. 296; Vorbnoff v. Mesta Machine Co., 286 Pa. 199; Ford v. Dick Co., 288 Pa. 140; McCauley v. Imperial Woolen Co., 261 Pa. 312.

The court is without power to reverse the action of the board on its findings of fact: Fahringer v. Bauerle Co., 100 Pa. Superior Ct. 89; Act of June 26, 1919, § 6, P. L. 642.

We have examined with care all the testimony offered in support of and against the present claim, and without discussing it in detail we are of the opinion that there was sufficient competent evidence to sustain a finding that the decedent, Ernesto Di Marcantonio, died as a result of an accidental injury in the course of his employment with the employer as contemplated in article ill of the Workmen’s Compensation Act of 1915, and the amendments thereto, and that his widow, the claimant, and his six minor children, dependents, are entitled to compensation as provided in section 307, article ill, of said act, and in accordance with the table of distribution in the award of the referee and affirmed by the said board, together with interest and costs, and in accordance with the Act of June 26, 1919, § 427, P. L. 642, 666, to wit: “The court shall enter judgment for the total amount stated by the award or order to be payable, whether then due and accrued or payable in future instalments.”

The additional testimony was taken before the referee, as we ordered in our opinion, remitting the record to the said board for such testimony, namely, that of Dr. J. C. Attix, explosive expert, and Dr. J. M. Hutchins, who performed the post-mortem on the body of decedent subsequent to his death, and was added to the record, and the referee again found that the decedent husband of claimant died “as the result of carbon monoxide in the course of his employment with his employer on Sept. 21, 1928.”

Briefly, the testimony in this case shows it was the opinion of Doctors Davis, Mehrig and Katar that the death of the decedent was caused by the inhalation of carbon monoxide gas, resulting from the explosion of dynamite. And this was clearly the opinion of Dr. J. M. Hutchins, physician to the Coroner of Delaware County, and who performed the autopsy on the day the decedent died. Here are four physicians, one of whom was the family physician, so testifying, and opposed to them is Dr. Attix, who never saw the decedent, who was only thirty-seven years of age and in good health, who states as an expert that, in his opinion, the death of decedent was not caused by gases generated from the explosion of dynamite.

In the language of the board, in affirming the findings of fact of the referee and which we now adopt, the testimony (Dr. Attix’s) was “contradictory, and while the opinion of Dr. Attix is entitled to great consideration when he states that the death was not caused by gases arising from dynamite explosions, this opinion is answered by testimony of claimant’s medical witnesses clearly and convincingly that death was so caused. A question of fact was largely involved and the referee has accepted the opinion of several physicians as to the cause of death, and his action we believe was clearly correct. The weight of the testimony is strongly in favor of the theory that the decedent met his death as the result of carbon monoxide poisoning at the time of the explosion. The credibility of the witnesses was largely for the referee, as he had an opportunity of seeing them, hearing their testimony and observing their manner of testifying. Under all the facts and circumstances of the case, the referee has, in our opinion, made a correct disposition thereof, and we affirm his findings of fact, conclusions of law and award of compensation.”

All of the four doctors for the claimant practically agreed that the man died from poisonous gases following the explosion of dynamite.

In all of these gas accidents, in which the claimant has been permitted to recover, opinions were received as to the nature of the gas which the deeedent breathed and which caused his death. Experts, of course, were not present when the accident happened. The referee and the courts took the facts as set forth by their witnesses and reached their conclusion from scientific knowledge applied to those facts.

In this case there was no other cause to create gas in this quarry but the explosion of dynamite. Nothing else could have asphyxiated this man but the gases from dynamite explosion. The question then arose, what were those gases? All the doctors for the claimant concluded and gave as their opinion that it was carbon monoxide gas. While the appellant herein lays special stress on the fact of a hemorrhage of the brain being discovered by an autopsy, all of these doctors were of the opinion without any equivocation that as soon as the oxygen is kept from the lungs, high blood pressure immediately starts in and this was the cause of the hemorrhage of the brain. Instead, therefore, of there being a diversity of opinion among these doctors for the claimant on the cause of death, the opinion is unanimous and was convincing to the referee and the Workmen’s Compensation Board.

The authorities in gas cases rule that “the involuntary inhalation of poisonous gas is an accidental injury,” and “the injury to the physical structure of the body need not be of external violence:” Baith v. Ætna Co., 2 Pa. Workmen’s Comp. Bd. 373, 3 Dept. Reps. 2875; McCauley v. Imperial Woolen Co., 261 Pa. 312.

We are not permitted to weigh conflicting evidence, under the Act of June 26, 1919, P. L. 642, or decide what inferences should be drawn therefrom: Stahl v. Watson Coal Co., 268 Pa. 452; Thomas v. State Workmen’s Insurance Fund, 280 Pa. 331.

This decedent, it must be borne in mind, was working in a quarry which was a circular excavation cut out of a hill, rock walls on three sides, with woods all around it except the front, which is partially open. The rear or back wall of the quarry is high and forms a corner. The floor of this quarry slopes downward from the roadway in front, and far in the quarry near the rear wall there was a hole which had been blasted out.

Seven blasts of dynamite had been exploded at this point that morning.

When dynamite explodes, a gas called carbon monoxide is formed which is much heavier than air. It lay low on the ground and filled this hole and the surrounding floor of the quarry. The air was very damp and heavy, which prevented the carbon monoxide gas from getting away, and there was no wind to drive it away. Besides, wind could not get down into the floor of the quarry.

A few minutes after the explosion and before the gas had cleared away, Di Marcantonio went back into this hole to work. Later, he staggered and called for help, lost consciousness, was taken to a hospital, never regained consciousness and died the next day.

The referee was most painstaking in his attempt to get all the evidence possible covering the facts in this case.

For proof that carbon monoxide, a deadly poison, is created by the explosion of dynamite, we are referred to the testimony of Dr. Felix M. Katar, found on page 47 of the testimony on the first hearing, to a hypothetical question, viz.:

“From the above reading, Mr. Paul, I am convinced that the cause of death was carbon monoxide poisoning. From the evidence in this case as set forth in the facts mentioned in the question asked, it appears that Ernest Di Marcantonio was a young man of thirty-seven years, accustomed to hard, outdoor work, strong and robust, perfectly healthy when he worked with his employer the day before the accident, healthy and well, according to his wife, when he left home the morning of the accident, and his helper said he never knew him to be sick before the day of the accident, and he worked every day.
“When a man of that type in perfect health went into a quarry right after seven explosions of dynamite had been set off, and there appearing to be no intervening cause of death, it is my opinion that unquestionably the cause of his death was asphyxiation by poisonous carbon monoxide gas.
“My reasons for this are set forth as follows:
“The facts show the, quarry was in the side of a hill, cut down thirty-five to forty feet from the top of the hill; woods around the quarry except in front, where it was partly open. It was a very wet, damp day, and no wind to drive the smoke and gases from the explosions away.
“The man was working in a hole about four feet deep below the floor of the quarry. It was here the explosions took place. And these gases being heavy, and as there was no wind that day, and it being difficult for the wind, even if it was blowing, to have pushed the gases out of this hole four feet deep, Di Marcantonio got enough of this gas to rob him of the necessary oxygen, cause high blood pressure and a hemorrhage of the brain, which killed him.
“One of the most insidious and dangerous gases which arise from the explosions of nitroglycerine or dynamite is carbon monoxide. The blood must have oxygen, and when deprived of it high blood pressure results, and this often causes a hemorrhage of the brain. And this man had such a hemorrhage, according to the verdict of the coroner, which I read, or of which I was informed.
“I have examined the works of some of the greatest chemists on this subject and made extracts from their works as follows:
“ ‘The general result of experiments conducted by Bedson, by Kullen and by Weiskopf with nitroglycerine explosives establishes the fact that carbon monoxide occurs in the explosion products of all carbonaceous explosives and is occasionally accompanied by oxides of nitrogen contributed by the nitrate ingredients.’ This is taken from J. Therburn, in 46 Journal Society of Chemical Industry, 358 (1927).
“ ‘Some of the products formed by explosives are poisonous, notably earbon monoxide, which is produced in considerable proportion whenever the oxygen in the explosion is insufficient to convert all the carbon into dioxide and the hydrogen into water. The gases from black powder of standard composition contain from 8 to 17 per cent, of carbon monoxide. . . . The highly poisonous character of carbon monoxide is due to the fact that its affinity for the hemoglobin of the blood is about 250 times that of oxygen. Consequently, when a man works in an atmosphere contaminated with the gas, his blood gradually becomes more and more inactive and only regains its full power of supporting life many hours after the man has returned to a normal atmosphere. Two to 3 per cent, of carbon monoxide is dangerous to life. . . .
“ ‘There are many cases on record of men going home quite recovered from the effects and then dying in convulsions in the night — several hours after-wards.
“ ‘In a series of experiments to ascertain the amount of carbon monoxide released by the explosion of dynamite, the following was found:
“‘30 per cent, straight nitroglycerine dynamite.........28.4 per cent.
40 per cent, straight nitroglycerine dynamite.........26.9 per cent.
50 per cent, straight nitroglycerine dynamite.........31.2 per cent.
60 per cent, straight nitroglycerine dynamite.........34.6 per cent.’
“The foregoing is taken from Explosives, volume 2, page 576, by Arthur Marshall, Chemical Inspector, Indian Ordnance Department.
“ ‘Nitroglycerine has a very powerful physiological effect. Merely handling it or entering a house containing it will often give a violent headache to any one not accustomed to it:’ 2 Explosives, 735, by Arthur Marshall.
“ ‘Oliver states that the inhalation of the fumes given off by high explosives may cause violent headache, vomiting, palpitation of the heart and partial or complete collapse:’ Diseases of Occupation and Vocational Hygiene (Kober-Hanson), page 566.
“ ‘Carbon monoxide, sometimes called white damp, is produced in explosions in blasting operations. . . . This gas causes a great many deaths among miners and workers in the mineral industries. It is without odor, color or taste, and its effects often go unnoticed by the victim until too late. The United States Bureau of Mines found that a canary bird collapsed in the presence of 2 per cent, of carbon monoxide:’ Industrial Health (Kober & Hayhurst), page 147.
“Lewin states that carbon monoxide is now and has been since the first discovery of fire the most widespread poison connected with human life and activity.
“McNally states people nearest the floor in a room in which carbon monoxide is escaping are the quickest affected. (Showing the gas is heavy.)
“ ‘At Cook County Hospital, Chicago, in 1916, there were 501 cases of carbon monoxide poisoning, or 8 per cent, of all coroner’s cases. They stood fourth place in numerical order of different forms of death for the year:’ Industrial Health (Kober & Hayhurst), page 369, etc.
“In Lippincott’s Quick Reference Book for Medicines and Surgery, compiled by Dr. George E. Rehberger, of Johns Hopkins University, he gives as causes of high blood pressure: ‘Mental and muscular exertion, increase of intracranial pressure due to hemorrhage and asphyxiation.’
“In the same work on Carbon Monoxide Poisons he states, among other sources of being poisoned from this cause: ‘Combustion products from kilns, etc., and blasting in mines.’
“The symptoms following carbon monoxide poisoning are ‘headache, muscular weakness, often nausea and vomiting, unconsciousness, clotted blood.’
“For treatment, he recommends oxygen and artificial respiration.
“He also refers to nitroglycerine as poisonous, the symptoms being ‘headache, giddiness, palpitation, buzzing in the ears, irregular pulse, weakness, unconsciousness.’
“ ‘Commercial explosives are solids or liquids that can be instantaneously converted into volumes of gas having many times greater volume. The increased volume exerts both blow and pressure:’ Blaster’s Hand Book, page 7, by Arthur LaMotte, Manager of Technical Section of the duPont Company.
“ ‘Tests made by the Bureau of Mines show that the detonation of explosives produces large quantities of carbon monoxide. German experiments have shown that the explosion of dynamite contains 34 per cent, of carbon monoxide, and, if there is much hydrogen sulphide present, this may also have a toxication.’
“Taken from Industrial Poisons in the United States, by Hamilton, page 390.
“On page 378, this author cites an illustration of a man who let himself down into a well shortly after a discharge of dynamite and soon fell in a faint at the bottom.
“On page 379, he states: ‘Haldane says that in a normal man at rest the tissues consume only a little over one-third of the oxygen the blood brings them, while in muscular exertion about two-thirds are used. Therefore, the blood of a man at rest may become nearly one-third saturated with carbon monoxide without his realizing that anything is wrong, but, if he has to make any considerable exertion, the fraction of his hemoglobin combined with carbon monoxide may not be enough to transport the necessary oxygen and he is liable to collapse. If the blood be more than half saturated, he may collapse even at rest, and, if he remain a considerable time in this condition, the cells of the central nervous system and perhaps the cells of other organs are injured by the lack of oxygen, anoxemia and unconsciousness is the immediate effect, while paralysis or insanity may follow later.'
“ ‘Henderson estimates that usually a man will die who has breathed two parts per thousand of carbon monoxide mixed with other normal air for four or five hours, or four parts for one hour. . . . The blast furnace of steel mills usually contains 250 to 280 parts of carbon monoxide per thousand. Therefore, in mine accidents as a result of„ accidental leakage in pipes from a steel blast furnace, a few breaths may be enough to nearly saturate the blood with carbon monoxide, and death follows as quickly as in drowning. . . , With two parts of carbon monoxide to one thousand parts of air utter powerlessness and unconsciousness come on, and three parts means death unless rescue is fairly prompt.’ (Page 380.)
“Some of the authors above cited, speak of the effect of carbon monoxide on the hemoglobin of the blood.
“ ‘The hemoglobin is an organic coloring matter, which constitute about nine-tenths of the weight of dried red blood corpuscles and serves as a carrier of oxygen from the lungs to the general tissues of the body.’ . . .
“ ‘In poisoning by the inhalation of carbon monoxide, this gas combines with the hemoglobin in the lungs and the carbon-hemoglobin so formed does not break up again. As the absorption of the gas continues a continually increasing quantity of hemoglobin is, therefore, destroyed so far as its utility as an oxygen carrier is concerned. In extreme cases of such poisoning, transfusion of blood is resorted to in order that the patient may have a sufficient supply of hemoglobin to transport the requisite quantity of oxygen from the lungs to the other tissues of the body:’ 14 Americana Ency., page 89.
“Dynamite is made of silica, one part of silica and 75 per cent, of nitroglycerine.
“Asphyxiation in spite of abundance of fresh air.
“In Kober & Hayhurst's work, entitled ‘Industrial Health,’ on pages 48 and 547, they state that asphyxiation may result from the explosions of dynamite in spite of an abundance of fresh air. We find the following substances used in the manufacture of explosives, viz., nitro benzenes, tetra nitramlin and several others. All of these act upon the central nervous system and convert the normal hemoglobin in which the gases formerly bound are forced out and replaced by the methenoglobin. That is, the chemical substances essential to life are forced out and the result is asphyxiation in spite of an abundance of fresh air.
“Dr. Hamilton, in the ‘Handbook of Experiments of Pharmacology,’ by Professor Heffler, of the University of Berlin, a very recent book, states that an inhalation of nitrogen dioxide from the explosion of dynamite increases the blood pressure in warm-blooded animals forty-seven millimeters.
“The first things to be done in cases of asphyxiation is to introduce oxygen into the lungs by artificial respiration. This fact shows that these poisonous gases, and especially carbon monoxide given off by the explosion of dynamite, drives the oxygen away. If it did not, the person subjected to these gases would not be asphyxiated, and if their lungs had not been deprived of oxygen, you would not have to force oxygen into them to revive them.
“In the World War, where poisonous gases were used, the tanks of gas were opened when the wind was blowing toward the enemy’s camp, and, being heavier than air, followed along the ground and incapacitated and frequently killed the soldiers who came in contact with it.
“Therefore, on the basis of my personal experience in reviving persons who had been asphyxiated, where I got there in time, and my experience where others died, when aid was not administered quickly enough, and on the further basis of my general knowledge of chemistry and the authorities I have quoted, there is no question in my mind but that Ernesto Di Marcantonio’s death was caused by accidentally breathing poisonous gas fumes from the explosion of dynamite while at his work in a quarry.”

Other compensation cases we have examined and of interest and applicable hereto are Ripani v. Dittman et al., 297 Pa. 124; Slemba v. Hamilton & Sons, 290 Pa. 267.

The Act of June 26, 1919, P. L. 642, at top of page 663, states that the facts found by the Compensation Board or referee are final: Calderwood v. Consol. L. & Supply Co., 91 Pa. Superior Ct. 189 ; Hornetz v. Phila. & Reading C. & I. Co., 277 Pa. 40; Kerrigan v. Amer. Int. Ship Bldg. Corp., 5 Pa. Work men’s Comp. Bd. Dec. 85; Kephart v. Glasgow Iron Co., 2 Dept. Reps. 1800; Flueker v. Carnegie Steel Co., 263 Pa. 113.

It is sufficient if the accidental injury happens in the course of the employment: Laraio v. Pennsylvania R. R. Co., 277 Pa. 382; Callihan v. Montgomery, 272, Pa. 56; Clark v. Lehigh Valley Coal Co., 264 Pa. 529; Lane v. Horn & Hardart, 261 Pa. 329; Granville v. Scranton Coal Co., 76 Pa. Superior Ct. 335.

“Furthermore, it is not necessary that the fall result from an accident, as the fall is the accident; nor is it material that the employee fell because he became dizzy or unconscious. An injury sustained by an accidental fall is compensable although the fall resulted from some disease with which the employee was afflicted. In the instant case, McCarthy was not without the protection of the act, if hurt by a fall, although it resulted from a lapse of the brain, whether it was gumma or merely vertigo. An accidental injury during the course of employment from an unexplained cause is compensable and the burden is not on a claimant to show the exact cause: Zelazny v. Seneca Coal Mining Co., 275 Pa. 397; Laraio v. Pennsylvania R. R. Co., supra; Skinner’s Pa. Workmen’s Compensation Law, 54. If resulting from temporary mental lapse, it is as compensable as though resulting from the friendly push of a fellow servant or other untoward event:” McCarthy v. General Electric Co., 293 Pa. 448.

In conclusion, we shall quote the latest expression of the Superior Court, which is contained in McCluskey v. Stock Exchange Bldg. Corp. and Ætna Co., 100 Pa. Superior Ct. 136:
“ ‘Where the death is accidental it is not incumbent upon a claimant to show the exact nature of the accident or just how it occurred: Flucker v. Carnegie Steel Co., 263 Pa. 113. An accident sustained in the course of employment, from an unexplained cause, is compensable: Granville v. Scranton Coal Co., 76 Pa. Superior Ct. 335:’ Selazny v. Seneca Coal Co., 275 Pa. 397.”

And now, to wit, March 21, 1931, the above matter of an appeal from the award of the Compensation Board under the Workmen’s Compensation Law, coming on to be heard by the court in banc, together with argument and briefs of law, after due consideration the court doth order and decree that the exceptions filed to the Compensation Board’s award herein be and are hereby dismissed, the appeal therefrom be and is hereby dismissed, the second award of the referee, which award was affirmed by the Workmen’s Compensation Board, be and is hereby affirmed and judgment be and is hereby ordered and directed to be entered in favor of the plaintiff and against the defendants in the sum of $8893.03 4/7, together with costs, amounting to $28.42, in accordance with and under the Act of June 26,1919, § 427, P. L. 642, 666, paragraph 2 thereof (see Johnson v. Baldwin Locomotive Works, 98 Pa. Superior Ct. 34).

From William R. Toal, Media, Pa.


source: Caselaw Access Project

author: Groff, J.,

license: Public Domain

text:
    Hardinge Company v. Whitaker’s Executors.

      B. C. Atlee, for plaintiff; John B. Graybill, for defendant.
    April 19, 1930.
   Groff, J.,

This is an action brought by the Hardinge Company, Inc., against L. H. Whitaker, deceased, H. Laughlin Whitaker and the First National Bank of Honey Brook, Pa., executors of L. H. Whitaker, to recover from the defendant the sum of .$2766.92, with interest from Dec. 1, 1927, based upon a book account for material, and on labor supplied to the defendant, under two written contracts and an oral contract. It is alleged that one of the written contracts is dated May 10, 1927, and the other written contract is dated May 16, 1927, the first being attached to plaintiff’s statement and marked Exhibit “B,” and the second being attached and marked Exhibit “C.”

These contracts were contracts for the supplying of material and equipment for dryers, elevators, conveyers, bins and other parts of a plant for the handling of clay at defendant’s clay plant, near Narvon, this county. There were also oral contracts by which L. H. Whitaker in his lifetime, according to the statement of the plaintiff, agreed to pay plaintiff for services and materials rendered and supplied by the plaintiff and accepted by the defendant.

L. H. Whitaker died on May 9, 1929, after the suit was brought and before the pleadings were filed.

The statement of claim was filed by plaintiff on Sept. 18, 1929, in the Prothonotary’s Office of Lancaster County. An affidavit of defense was filed to-this statement on Jan. 2, 1930. On Jan. 10, 1930, the plaintiff made a motion for judgment for want of a sufficient affidavit of defense, on which motion a rule was granted to show cause why judgment should not be entered for want of a sufficient affidavit of defense. Subsequent to the entering of this rule, defendants, on March 12, 1930, filed a supplemental affidavit of defense. The plaintiff, relying upon its original motion and assignments, marked the case for argument, and it was heard by the court at the regular argument term.

Section 6 of the Practice Act of May 14, 1915, P. L. 483, reads as follows:

“Section 6. Every allegation of fact in the plaintiff’s statement of claim, or in the defendant’s set-off or counter-claim, if not denied specifically or by necessary implication in the affidavit of defense, or plaintiff’s reply, as the case may be, or if no affidavit of defense or plaintiff’s reply be filed, shall be taken to be admitted, except as against an infant, a person of unsound mind, or one sued in a representative capacity as provided in section seven, and except as provided in section thirteen.”

Section 7 of the same act, which relates to an affidavit of defense filed by executors, reads as follows:

“Section 7. When the affidavit of defense or plaintiff’s reply is made by an executor, administrator, guardian, committee, or other person acting in a representative capacity, he need only state the facts he admits to be true, and that he believes there is a just and legal defense to the remainder, and the facts upon which he bases his belief.”

Have the executors met the requirements of section 7 of the Practice Act above referred to? They set out in their affidavit of defense that they are the executors, and then properly proceed to set out at a greater length their defense than is necessary in pleading. They admit certain facts alleged in plaintiff’s statement, but deny that the labor and material furnished by the plaintiff to the defendant was accepted by him, and aver that the equipment installed did not work satisfactorily; that it was to work satisfactorily under an oral agreement; and then gave wherein the machinery furnished did not work satisfactorily, and that the unsatisfactory condition of the equipment is due to the inferior workmanship and installation of the engineers and workmen of the plaintiff. They deny that they are indebted to the plaintiff in the sum of $2766.92, for the reason that the plaintiff has not fulfilled the terms of his contracts, and that in order to place the equipment furnished in a proper and satisfactory working condition it would cost $3000.

The statement of claim alleges that the total amount of the plaintiff’s claim originally was $8572.22, and that of that amount $5805.30 was paid. This is admitted by the defendants.

The defendants then say that they have a just and legal defense to the plaintiff’s claim, and believe the truth of their own allegations, and expect to prove the same at the trial of the cause.

The plaintiff in this case seems to rely upon the ease of John Deere Plow Co. v. Hershey et al., 287 Pa. 92, in which the court, speaking through Mr. Chief Justice Mosehzisker, in the syllabus, says:

“In an action of replevin against the receivers of a corporation to recover goods in the hands of the corporation under a contract of conditional sale, the receivers, after filing an affidavit of defense, cannot claim that shortcomings in their affidavit of defense cannot be used against them, inasmuch as they are not required to file any affidavit of defense at all. They waived their privilege by filing their affidavit of defense.”

It will be noted, however, that that affidavit of defense was filed under the Act of April 19, 1901, P. L. 88, relating to replevin, and while that was an action of replevin, we think that the following principle announced in Smyser v. Strawbridge, Exec’x, 4 D. & C. 297, applies, where Wanner, P. J., says in the opinion, at page 298, that:

“Judgment against such a defendant [executor] can, therefore, only be entered if the facts of the statement specifically admitted in the affidavit of defense, together with the additional facts alleged in the affidavit itself, are sufficient in themselves to show that the plaintiff has a good cause of action which is not sufficiently met by any defense set up in the affidavit.”

We so held in the case of Strickler, Trustee, v. Resh et al., Executrices of Barbara J. Melbert, deceased, 41 Lane. Law Rev. 822, and believe that that is the law.

We feel that the facts alleged in the statement are not specifically admitted by the affidavit of defense, and that there are not sufficient additional facts admitted in the affidavit to authorize us to enter judgment.

We, therefore, for the reasons above set forth, discharge the rule to show cause why judgment should not be entered for the plaintiff for want of a sufficient affidavit of defense. Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Gray, J.,

text:
    In re Rubinovitz.

      Charles Alvin Jones and Donald C. Anderson, for petitioner.

      William Kalson, for respondent.
    June 25, 1930.
   Gray, J.,

At the registration of electors in the fall of 1929, Israel Rubinovitz, of 813 Fifth Avenue, was registered in the First District of the Third Ward, City of Pittsburgh, Allegheny County, Pennsylvania, as a qualified elector, and the record shows he voted at the fall primary and the general election of 1929, and at the spring primary of 1930. He was registered on presentation of a tax receipt issued by the County Treasurer of Allegheny County, dated August 20, 1929. If this tax receipt was a valid one, this elector would be entitled to register on it at the fall registration of 1930.

On April 19, 1930, Lawrence D. Blair, Esq., a citizen and qualified elector of the City of Pittsburgh, and also a member of the Bar of Allegheny County, as a member of and at the direction of the Committee on Elections of the Allegheny County Bar Association, filed a petition with the Board of Registration Commissioners of the City of Pittsburgh in due form of law, objecting to the action of the registrars in accepting the claim of said Israel Rubinovitz for registration and in registering said Israel Rubinovitz, on the ground that “The tax receipt on which said elector was registered was issued on a forged authorization, and/or because of other irregularities;” that is, on the ground, in substance, that Israel Rubinovitz was not entitled to be registered or to vote at the then ensuing elections, for the reason that the tax receipt on which he was registered was unlawfully procured from the County Treasurer of Allegheny County on a forged written order purporting to be signed by Israel Rubinovitz, and purporting to authorize one Domenick Mastriano to pay the poll tax of said Israel Rubinovitz and to secure a tax receipt for him. After due notice to Israel Rubinovitz, and after one or more hearings by the board of registration commissioners, at which Israel Rubinovitz appeared personally and by counsel, said board, on May 12, 1930, entered an order dismissing the objections of Lawrence D. Blair to the registration of said Israel Rubinovitz without assigning any reason for their action. Whereupon Lawrence D. Blair, acting in the capacity aforesaid, filed his petition here, and on May 16, 1930, the court made an order allowing an appeal from the decision of the board of registration commissioners, and set May 22, 1930, as the time for hearing said appeal, on which date there was a postponement to May 29, 1930, on which latter date this matter came on for hearing in this court and testimony was taken. Neither the board of registration commissioners nor Israel Rubinovitz filed any answer to the petition. Several employees of the board were present in court at the hearing, but took no part" therein, and Israel Rubinovitz was represented by counsel, but was not present in person, and no testimony was offered on his behalf.

It is beyond all doubt that the tax receipt upon which Israel Rubinovitz was registered was illegally procured and was utterly void in his hands, and, therefore, he was not entitled to be registered as an elector qualified to vote on the strength of that tax receipt, which was procured from the county treasurer on what purported to be a written order from Israel Rubinovitz to Dome-nick Mastriano, authorizing him to obtain a tax receipt for Rubinovitz. This written order was a manifest forgery. While Rubinovitz appeared before the board of registration commissioners, no report of this testimony was furnished us, and he did not come into court to defend his rights, nor did his counsel offer any testimony in his behalf. There was testimony that it was not uncommon to issue tax receipts on such orders as that on which Rubinovitz’s receipt was issued, though presented by an entirely unknown person, and though he presented a number of such orders at one time and paid the amounts required. We may rightfully infer that Rubinovitz paid no money for his receipt, as required by law, and, as stated, we know positively he did not sign the written order which was used. We have no doubt the tax receipt was secured without consulting Rubinovitz at all.

Counsel for the registrant made no pretense that Rubinovitz was entitled to be registered, but did object to his name being stricken from the registers, because he asserted the court had no jurisdiction, since section one of the Act of June 18, 1915, P. L. 1027, provides that petitions for appeals from the board -of registration commissioners must be filed not less than ten days preceding an election, and counsel contends that' as the petition in this case was not filed until May 16, 1930, and the primary election was on May 20, 1930, therefore, it was too late to have this matter considered by this court. It was also contended that as there would be a new registration in the fall of 1930, and that unless there was a special election, Rubinovitz would not be able to exercise any right under the existing registration, this is but a moot case.

Section one of article eight of the Constitution of Pennsylvania provides, among other things, that in order to qualify a citizen to vote, if he is twenty-two years ©f age and upwards, “He shall have paid within two years a state or county tax, which shall have been assessed at least two months and paid at least one month before the election.”

By an Act of Assembly of July 15, 1897, P. L. 276, it is declared to be unlawful “for any person or persons to pay, or cause to be paid, any occupation or poll tax assessed against any elector except on the written and signed order of such elector authorizing such payment to be made.” This act makes it unlawful for any person authorized to collect taxes to receive any occupation or poll tax from any person other than the elector himself, except upon his written and signed order authorizing such payment to be made, and also makes it unlawful for any person to vote, or attempt to vote, at any election upon a tax receipt obtained in violation of the act, and makes it a misdemeanor for any person to violate any of the provisions of this act.

In section eight of the Act of July 24, 1913, P. L. 977, it is enacted that “Every person who shall have paid his taxes, either by himself or his duly authorized agent or attorney, on or before the last day for registration, and who shall possess all the other qualifications of an elector as provided in the Constitution and laws of this Commonwealth, . . . shall be entitled to be registered at the Pall registration.”

In section one of the Act of June 18, 1915, P. L. 1027, it is enacted that, “If any citizen shall object to the action of the registrars in accepting or rejecting any claim for registration, he may file (with) his petition, duly sworn to by said citizen, with the commissioners, setting forth the ground of his complaint. . . . When such petitions are filed, the commissioners shall fix a time and place for hearing them, sufficiently in advance of the election to enable the same to be heard and disposed of prior thereto, and to have a review thereof by the courts. Such hearing shall be public before the commissioners, and the register of voters may be amended, either by the insertion of a new name or the cancellation of a name already on the register, or otherwise, as the commissioners may order. . . . The applicant, or any elector who is not satisfied with the decision of the commissioners, may petition the court of common pleas, setting forth the reason why he feels that injustice has been done, and thereupon the said court of common pleas may, in its discretion, allow an appeal to it from the decision of the commissioners. The said court may then fix a day for a public hearing. . . . The said court, after such public hearing, may reverse, affirm or alter the decision of the commissioners. Such petitions for appeals must be filed not later than ten days preceding an election.”

In Com. v. Shrontz, 213 Pa. 327, it was held that in a judicial inquiry into an elector’s right to vote, the court may go behind the tax receipt and ascertain the actual facts.

While the board of registration commissioners was not represented at the hearing of this case, we are informally advised the reason they refused to strike off the registration of Israel Rubinovitz was that they were not sure they had any right to go behind the record of the face of the tax receipt on which Rubinovitz was registered. We have no doubt that the tax receipt of Rubinovitz was unlawfully issued, unlawfully procured and was unlawfully in the possession of Rubinovitz, and he was not entitled to be registered on that receipt. He did not pay for it himself, as required by law; he did not give a written order authorizing any one else to pay his tax and procure a receipt for him, as required by law. The written order on which the tax was paid and the receipt was issued was established to be a forgery as clearly as it is possible to establish any fact. This should have been apparent to the board of registration commissioners. There was no purpose in having a hearing in regard to the registration of this elector unless the facts could be inquired into, and when the inquiry was made here it was shown positively that the elector was not entitled to be registered. There can be no question this court has authority to inquire into the legality of this tax receipt: Com. v. Shrontz, 213 Pa. 327. It seems to us beyond doubt that the board of registration commissioners had the same power and that they should have stricken the registration of Israel Rubinovitz from the register.

While it is true the proceedings here are statutory and that the statute must be strictly followed, we are satisfied the provision of the statutes herein-before quoted, that a petition must be filed ten days before an election, does not forbid the consideration of this matter now, because the petition for the appeal was not filed ten days before the primary election. There was no effort to deprive the registrant of his vote at the primary election on May 20, 1930, and the court granted the appeal and set a date for a hearing after the date of the primary election. It is true there will be a new registration of electors before the election next November, but it is provided in section one of the Act of May 28,1915, P. L. 576, that “The list shall become of no validity at the beginning of the period of Fall registration next succeeding that at which the registers were opened,” from which it appears that the registration of Israel Rubinovitz is still a valid registration which would entitle him to vote should a special election be held before the beginning of the period of registration this fall, and, as above stated, the tax receipt issued to Rubinovitz would entitle him to register at the fall registration this year if it were a valid tax receipt. The question is not, therefore, a moot one, and should be determined now. We will, therefore, enter a decree reversing the order of the board of registration commissioners dismissing the objection of the petitioner to the registration of Israel Rubinoviz, and ordering that the name of Israel Rubinovitz on the registers of the First District of the Third Ward of the City of Pittsburgh, as a registered elector, shall be canceled and stricken from the registers.

Decree.

And now, to wit, June 25, 1930, upon consideration of the petition, the testimony taken and arguments of counsel, it is ordered and decreed that the decision of the Board of Registration Commissioners of Pittsburgh, Allegheny County, made on May 12, 1930, dismissing the objection of petitioner to the registration of Israel Rubinovitz as an elector qualified to vote, is hereby reversed, and said board of registration commissioners are directed to strike the name of said Israel Rubinovitz from the registers of the First District of the Third Ward of the City of Pittsburgh, Allegheny County, Pennsylvania, as a qualified elector of the City of Pittsburgh.

From William J. Aiken, Pittsburgh, Pa.


author: Knight, J.,

text:
    Lower Merion Township Commissioners’ Petition.

      Parker S. Williams and Franklin L. Wright, for petition.

      High, Dettra & Swartz, contra.
    May 29, 1930.
   Knight, J.,

By ordinance duly approved May 18, 1927, the Board of Commissioners of Lower Merion Township authorized the acquisition of certain premises in the West Branch Indian Creek watershed for the erection of a sewer pump station, and .provided for the construction of main and force main sewers in said watershed, the cost thereof to be assessed upon the properties accommodated or benefited.

In conformity with the authority conferred by the above ordinance, the township constructed the sewer. Settlements were made with all of the property owners, with the exception of Le Roy P. Leas, whereupon a jury of view was appointed, who assessed the land of Mr. Leas with benefits in the sum of $819.11, representing the cost of the sewer laid across the Leas property. Exceptions to the report have been filed by Mr. Leas, and the matter is now before the court on these exceptions.

No objection is made to the amount of the assessment, nor to the procedure. The exceptant claims, however, that his property cannot be charged with the cost of the sewer above mentioned, because his land has heretofore been assessed for the cost of a sewer in Haverford Road.

In order to understand the question here presented, it is necessary to have in mind a clear picture of the Leas property. It is rather hard to describe this land in words, and we will not attempt it, as a draft of the property is attached to the report of the jury of view. This draft shows that the estate of Mr. Leas has a frontage of 229.12 feet on Haverford Road. In the bed of this road, along this frontage, there is a public sanitary sewer, which was laid in 1926, and for which Mr. Leas was assessed and paid benefits. Prom Haverford Road the exceptant’s land runs in the shape of a funnel, with its base on said road, northeasterly to a point 435.23 feet from the middle of Haverford Road, from which point it widens out in both directions. The property contains nearly sixteen acres of land, and the buildings are located about 650 feet from Haverford Road. The sewer in question, where it crosses the Leas property, runs nearly parallel with Haverford Road, and about 550 feet distant therefrom.' It is not laid in the bed of any street across the land of Mr. Leas.

The exceptant sums up his contention by citing the following extract from the opinion of the lower court in Philadelphia v. Meighan, 27 Pa. Superior Ct. 160 (1905) :

“The general principle of law is that where a property is first benefited in kind by a municipal improvement it is assessable therefor, but where it has once enjoyed the particular kind of improvement the property is not assessable for a second improvement of the same character, even though the latter may differ in degree and may be to the apparent material benefit of such property.”

This is stating the rule in its broadest terms and in the light most favorable to the contention of the exceptant.

An examination of all the cases that have been brought to our attention in which the principle has been applied discloses that, with the exception of the case above cited, they have to do with the reconstruction, rebuilding or replacing of municipal improvements, and not with new construction. In Philadelphia v. Meighan, supra,, the sewer was laid in a city street and was paid for by assessment; later, the city"put in a second sewer in the same street, and it was held that the abutting property owner could not be assessed for the cost of the additional sewer. Both the court below and the appellate tribunal held that the second sewer was simply an enlargement of the sewer capacity or facilities of the abutting owner — a duplicate sewer. In effect, the building of the second sewer on the same street was no different than a reconstruction or change of the first one. Very different are the facts in this case, where the second sewer is 550 feet from the first and where the jury of view has found that by reason of the topography and nature of the land it is impractical for Mr. Leas to connect his buildings with the first sewer, and that the second is much nearer and readily available.

The distinction between Philadelphia v. Meighan and the case at hand is very broad. Reverting again to the principle as stated in the Meighan case, it will be noted that the “property” involved was located on a built-up city street, and the language employed by the court must be held to apply to such “properties.” We have a number of large estates in Montgomery County that abut on public roads a mile apart, and certainly no one would contend that an owner would be relieved from the payment of a sewer benefit because he had already paid such a benefit for another sewer on his “property” a mile away. The burden of all the cases is that it is the abutting properties only that are subject to assessment, and, hence, relieved from a second assessment; and in considering what is “abutting,” the courts have restricted the term to land which immediately abuts on the municipal improvement: Park Avenue Sewers, 169 Pa. 433.

In Michener v. Philadelphia, 118 Pa. 535, the property involved was a lot in the City of Philadelphia which abutted on three streets. Sewers were laid in two of the streets and the lot assessed for the benefits. The city then laid a sewer in the third street, and the Supreme Court held the lot liable for benefits although the front on the third street was not available for building purposes.

Considering the shape and size of the Leas land, it would be stretching the principle too far to hold that the whole of the exceptant’s sixteen acres abutted on Haverford Road within the meaning of the rule as laid down in Hammett v. Philadelphia, 65 Pa. 146, Philadelphia v. Meighan, supra, and kindred cases. Without prolonging the discussion, we are of the opinion that the sewer in question, constructed over the Leas property 550 feet from the Haverford Road sewer, is not in contemplation of the law a mere duplication of the former sewer, and, hence, not within the rule as stated in Philadelphia v. Meighan. It follows that the exceptions to the report of the jury of view must be dismissed and the report confirmed.

And now, May 29, 1930, the exceptions are dismissed, and the report of the jury of view is confirmed absolutely.

From Aaron S. Swartz, Jr., Norristown, Pa.


author: Leach, J.,

text:
    Great American Tea Company v. Levine.

      J. I. Myers, for appellant; no appearance for appellee.
    June 25, 1930.
   Leach, J.,

The transcript states that plaintiff, being “sworn, states that there is due and justly owing to plaintiff by the defendant the sum of $54.75 for damages to a truck owned by the Great American Tea Company by defendant’s automobile. The defendant appears, but denies this charge.” After hearing, the judgment was given against the defendant in the sum of $54.75 and the costs of the suit. Defendant took a certiorari and excepted on the ground that the transcript did not show jurisdiction of the alderman and that judgment was defective, being for costs of the suit. As to the latter objection, as the costs of the suit were not reckoned and added to the judgment, it may be treated as mere surplusage.

As to the other exception, the alderman has jurisdiction in trespass, but not in negligence or trespass on the case. There is nothing in the transcript to show whether the damages were the direct result of the plaintiff’s act or whether they included consequential damages. Neither did the plaintiff follow section 1208 of the Vehicle Code of May 1, 1929, P. L. 905, which provides for jurisdiction to the alderman as follows:

“All civil actions for damages, arising from the use and operation of any vehicle, may, at the discretion of the plaintiff, be brought before any magistrate, alderman or justice of the peace in the county wherein the alleged damages were sustained, if the plaintiff has had said damages repaired, and shall produce a receipted bill for the same, properly sworn to by the party making such repairs or his agent. . . .”

The record is silent as to the county in which the accident occurred, and also as to the production of a receipted bill for repairing the damages, “properly sworn to.”

Now, June 25, 1930, judgment reversed.

From William A. Wilcox, Scranton. Pa.


author: Smith, P. J.,

text:
    Brockway Motor Truck Company v. Smith.

      H. L. Shepard, for plaintiff; J. Yearsley, for defendant.
    January 20, 1931.
   Smith, P. J.,

This case arises from a rule to quash a writ of replevin. The reasons advanced by the defendant are: (1) The truck claimed in the declaration filed was not the truck described in the writ as originally drawn; (2) the affidavit of value was invalid because there was no averment of authority filed by the person signing it. The plaintiff filed a petition to amend the affidavit of value to set forth the authority of the agent, which was allowed.

The declaration properly described the truck that was seized thereunder.

There is no merit in either objection taken by the defendant.

In Overseers v. Bunn, 12 S. & R. 292, 295, Duncan, J., said:

“Indeed, in England, a judgment is never reversed, in any court of record, for any variance in any writ, original or judicial, from the declaration or other proceedings. 2 Salk. 701. There, the court held, that a defendant cannot take advantage of a variance between a writ and count, without craving oyer of the writ. In Ford v. Barker, Barnes, 340, the court, as praying oyer of the original, had been much used to delay, came to a resolution not to grant oyer of the original in future; and so far have the courts discouraged this dilatory course, that with respect to a writ of error for a defective original, as it would be a hard case to set aside a judgment for a mere slip, the master of the rolls would defeat the writ of error, by ordering the original to be amended, or, if necessary, granting a new one.” See, also, Pentz v. Pentz, 6 Dist. R. 708.

Since oyer was the only method for the court to have knowledge of a variance between the writ and the declaration, and that method is no longer available, the variance is not properly before the court.

In considering the authority of the agent signing the affidavit of value, the court has no power to dismiss the writ upon the reasons advanced.

In Automobile Co. v. Swisshelm, 75 Pa. Superior Ct. 72, 76, Judge Linn said:

“An inspection of the record as it was constituted when the writ issued shows that the learned court erred in holding the affidavit inadequate. The plaintiff corporation could come into court only by attorney. Its affidavit could be made only by its officers or agents duly authorized. Authority may appear or be proved in various ways. When the prothonotary was requested to take MacDonald’s affidavit, he had before him the praecipe signed by MacDonald, as attorney for plaintiff, and the statement of claim so signed by him, and he knew him to be an officer of the court authorized to practice therein. We are not concerned in this appeal with the propriety of MacDonald’s making the affidavit. It was required to advise the prothonotary of the value of the goods in the first instance, to enable him ‘to determine the amount of bail,’ (section 8). Plaintiff’s act in causing this bond to be delivered to the prothonotary by MacDonald as part of the process then consisting of the prtecipe, statement and affidavit, was plaintiff’s declaration or publication of MacDonald’s agency and authority to make the affidavit of value and made it the plaintiff’s affidavit, as undeniably as if it had been accompanied by plaintiff’s letter of attorney specifically authorizing it.”

In the same case, which was appealed to the Supreme Court (269 Pa. 153), the court held:

“Where a suit in replevin is instituted by a corporation, the proceedings are not rendered fatally defective because the affidavit of value fails to show the authority of the agent who made the affidavit.”

All error is corrected if the plaintiff files a supplemental affidavit showing the authority of the agent who signed the affidavit. This has been done. The petition of the plaintiff to amend its writ is granted. The rule to quash the writ of replevin is discharged.


author: Alessandroni, J.,

text:
    Shestack v. Joseph Asbell Building and Loan Association.

      Lester Bowman, for plaintiff; William Pleet, for defendant.
    Dec. 30, 1930.
   Alessandroni, J.,

The statement of claim avers that the plaintiff gave written notice of withdrawal in accordance with the by-laws of the defendant building and loan association on or about February 19, 1930, by a letter to the secretary and by verbal notice at the regular meeting held in February, 1930. Suit is for the paid-in value of the stock. The affidavit of defense avers that no written notice of withdrawal in accordance with the by-laws was served on the defendant association as alleged in the plaintiff’s statement of claim, and that the plaint.'ff gave no proper notice of withdrawal to the defendant. The undenied allegation that oral notice of withdrawal was given,at a regular meeting is of no legal significance, inasmuch as the affidavit of defense avers that the by-laws require written notice and that no such written notice was given. In the absence of an allegation of facts which would indicate a waiver on the part of the defendant of the required written notice, the oral notice alleged by the plaintiff would be of no legal effect.

The plaintiff has lost sight of the fact that there is a denial of his allegation that formal written notice of withdrawal was given the defendant association. Under the by-laws of the association such notice is required, and it is firmly established from our earliest decisions that notice of withdrawal must be given in accordance with the charter and by-laws of the association: Assigned Estate of Brown Building and Loan Association, 12 W. N. C. 207.

There being a specific denial in this ease that notice in accordance with the by-laws was given, the affidavit of defense filed is sufficient in law.

And now, to wit, December 30, 1930, the rule for judgment for want of a sufficient affidavit of defense is discharged.


author: Stern, P. J.,

text:
    Randolph et al. v. Washington-Virginia Railway Co. et al.

      Geoffrey S. Smith and Dickson, Beitler & McCouch, for plaintiffs.

      William A. Schnader, Attorney General, and Edward F. Hitchcock, Special Deputy Attorney General, for Commonwealth.

      Charles Myers and Barnes, Biddle & Morris, for garnishee.
    April 7, 1931.
   Stern, P. J.,

The question involved in the plaintiffs’ rule for judgment for want of sufficient answer to interrogatories is whether the fund on deposit at the Girard Trust Company escheated to the Commonwealth of Pennsylvania, but it is agreed by counsel that that question depends in turn upon whether the deposit by the railway company established a trust fund for the benefit of the coupon-holders, or whether it represented nothing more than the ordinary relation existing between a depositor and a bank.

The authorities in Pennsylvania governing the question involved are meagre. Bank of the United States v. Macalester, 9 Pa. 475, which is cited by counsel for the Commonwealth, is understandable upon the ground that, as appears from the statement of facts in the report of that case, the fund was deposited at the bank under an agreement by the latter to pay it to the coupon-holders. It was, therefore, naturally held that the bank could not claim this fund on account of an indebtedness owed to it by the depositor. Counsel for the garnishee cites Austin-Nichols & Co., Inc., v., Union Trust Co., 289 Pa. 341, where it appears that the money was deposited with a trustee having active duties to perform in regard to the fund, and the fact was clear that the depositary occupied a trust position. It is stated in that case that:

“Whether a fund is to be treated as held in trust for a special purpose, or considered merely as a deposit, creating the relation of debtor and creditor, depends on the circumstances of each particular case.”

It then proceeds to cite with approval certain New York authorities laying down rules to determine whether or not a deposit should be treated as a trust fund.

A study of the New York cases thus cited reveals what, in our opinion, is the proper rule to be applied. These cases hold that ordinarily the mere fact that the deposit is stated to be for a specific purpose, as, for example, to pay interest due on coupons, does not constitute the depositary a trustee nor impress the money with a trust inuring to the benefit of the coupon-holders, but that its only effect is to constitute the depositary the agent of the depositor to distribute the moneys as directed, and that by virtue of the authority which the depositor had to give the directions he has authority to revoke them and to demand the return of the money before it is actually used for the purpose specified. The case is different only where the depositary expressly accepts a trust obligation with respect to the deposit or enters into a specific agreement to use the money to pay the designated beneficiaries: Staten Island Cricket and Baseball Club v. Farmers Loan and Trust Co., 41 App. Div. (N. Y.) 321; Noyes v. First National Bank of New York, 180 App. Div. (N. Y.) 162; Erb v. Banco di Napoli, 243 N. Y. 45.

The most comprehensive discussion of the entire subject is to be found in the ease of In re Interborough Consolidated Corporation, 288 Fed. 334 (Circuit Court of Appeals, Second Circuit). This case holds, as do the others cited, that if bonds or coupons are made payable at a particular bank and at a particular time, and funds are left with the bank to be applied in payment of the bonds or coupons, such funds are held by the bank as the agent of the obligor and not as the agent of the obligees. It is pointed out that a mere direction by a party to his agent to apply certain funds to the payment of a debt does not operate as an equitable assignment of such funds, and that such direction until acted upon may be revoked. Such a deposit, without some act of appropriation by the agent depositary, does not create any privity of contract as between such agent and the holder of the debt. It Is true that ordinarily if a person receives money to be paid to another or to be applied to a particular purpose, he becomes a trustee to make such payment or application of the fund, but that is because the fund comes into his possession and control, and, therefore, he is bound by his acceptance of the money to apply it accordingly. The situation, however, is different with a bank deposit; the bank assumes no obligation to the beneficiary, but merely an obligation under its contract with its depositor to make payments out of the fund as directed by the depositor and as the latter’s agent until and unless contrary instructions are received from the depositor. In short, in the present case the coupon-holders would have had no right of action against the Girard Trust Company to compel it to turn over the funds to them. Moreover, if, let us say, the Girard Trust Company had become bankrupt before paying out the money to the coupon-holders, the loss would have fallen upon the railway company and not upon the coupon-holders. Under the authorities cited, as well as by reason and analysis, it would appear clear that the Girard Trust Company was merely the fiscal agent of the railway company to pay the coupon-holders out of the railway company’s account, but that no trust fund was created giving the coupon-holders any vested right in it as such.

It may be added that the New York cases also indicate that it makes no difference whether the money is paid out directly by the depositary or on checks of the depositor, or whether or not the deposit is put by the bank into a special account; therefore, there is nothing in the supplemental answer of the garnishee which changes the general principles applicable to the subject.

For these reasons, the court makes the plaintiffs’ rule for judgment absolute, and adjudges that there is in the hands of the garnishee as the property of the defendant herein, and subject to the plaintiffs’ attachment, the sum of $2425, from which is to be deducted garnishee’s attorney fee and cost of affidavit of $13.50.


author: Valentine, J.,

text:
    Penxa et al. v. Tanno.

      W. S. McLean, 3rd, for plaintiff; no appearance for defendant.
    July 21, 1930.
   Valentine, J.,

Plaintiff, by her next friend and mother, filed a bill of complaint praying that a purported marriage between her and the defendant be declared void.

By order of the court of December 9, 1929, it was directed that the defendant (whose whereabouts were unknown) answer the bill on or before January 15, 1930, and that a statement of the substance and object of the bill and a copy of the order be published as therein directed. Publication was made, and on January 27, 1930, a decree pro confesso was duly entered.

For convenience we summarize the essential

Facts.

1. Plaintiff is an infant, thirteen years of age, native bom, residing with her mother in the Borough of Kingston, Luzerne County, Pennsylvania.

2. Prior to September, 1929, plaintiff, while residing with her mother at Fern Brook, Luzerne County, became acquainted with the defendant, who was born in Japan of Japanese parentage and was twenty-eight years of age.

3. On September 8, 1929, plaintiff and defendant appeared before William A. Loftus, justice of the peace, Plains, Pennsylvania (plaintiff falsely making affidavit that she was twenty-one years of age), and procured a license to marry.

4. Upon procuring said license, a marriage ceremony was performed by said justice of the peace.

5. Immediately after the performance of the marriage ceremony, plaintiff’s mother learned of the same and took the plaintiff away from her husband.

6. Plaintiff and defendant did not cohabit, nor was said marriage consummated.

Discussion.

“At common law the age at which persons were deemed competent to contract a valid marriage was fourteen years for the man and twelve years for the woman, these periods having been adopted because at such an age the parties were deemed to have attained puberty, with capacity to consent on the part of females and to commit rape on the part of the males. . . . The marriage of an infant under seven years of age was regarded as absolutely void, but where the parties were older and yet below the age of consent, the marriage was deemed merely voidable. ... In England the ecclesiastical courts assumed jurisdiction to decree the annulment of the marriage of infants who were below the age of consent. In this country, due to the fact that such courts did not exist here, courts of equity, at an early date, assumed such jurisdiction:” 9 R. C. L. 272 § 32.

In Hullahan v. Paritz, 24 Luzerne Legal Reg. 182, Judge Fuller reached the conclusion that a marriage of a girl obviously under age without the consent of her parents would be annulled by decree of the chancellor.

In Greene v. Brandt, 13 D. & C. 712, Judge Coughlin held that the court would not decree the annulment of a marriage of a minor eighteen years of age who, without the consent of her parents, obtained a license through misrepresentation of age, not obvious at the time.

In the present case plaintiff’s minority was obvious; moreover, she was under the age of sixteen, and the issuance of a license to marry was expressly prohibited by the Act of March 24,1927, P. L. 64. As stated by Judge Coughlin in Greene v. Brandt, supra, the provisions of this act “would indicate that even though parent or guardian consented, no license to marry could issue to one under that age. The act, however, provides that a judge of the orphans’ court shall have discretion to authorize a license to be issued by the clerk of the orphans’ court in special cases where one or both persons are under the age of sixteen years.”

Our divorce laws contain no provision which applies to the present situation, but we are of the opinion that the jurisdiction of equity may be invoked for the annulment of a marriage for a cause not covered by our acts regulating divorce.

By reason of the nonexistence in this country of ecclesiastical courts, equity very generally assumed jurisdiction to decree the annulment of invalid marriages: 9 R. C. L. 267, § 27.

Courts of equity in this country have, as a general rule, assumed inherent jurisdiction to decree annulment of marriages for certain causes which, under the laws as administered in the ecclesiastical courts, were ground for a divorce a vinculo matrimonii: 9 R. G. L. 396, § 190.

We make the following

Conclusion of law.

Plaintiff is entitled to a decree of annulment.

Accordingly, under the provisions of Equity Rule No. 51, we enter the following

Final decree.

Upon consideration of the foregoing case, it is ordered adjudged and decreed as follows:

That the purported marriage between the plaintiff, Catherine Penxa, and the defendant, Harry S. Tanno, be and the same is hereby annulled.

Prom Prank P. Slattery, Wilkes-Barre, Pa.


author: Lloyd, J.,

text:
    O’Connor v. The Daily Publishing Company.

      Frank M. Reber and Stevens & Kitner, for plaintiff.

      Knight, Taggart, Klein & Reich, for defendant.
    June 30, 1930.
   Lloyd, J.,

On March .13, 1930, Edmond O’Connor caused a summons in trespass to issue against the defendant. On the same day he filed a statement alleging that the defendant, The Daily Publishing Company, is a corporation organized and doing business under the laws of the State of Pennsylvania, with its place of business in the Sunbury Daily Building, corner of Market and Second Streets, in the City of Sunbury, Northumberland County, Pennsylvania; “that they publish the ‘Sunbury Daily,’ daily except Sundays; that William F. Eichholtz is the editor, Lewis Dewart, business manager, and Samuel C. Price, city editor, and also that the defendant did on April 12,1928, publish a false, scandalous, malicious and defamatory libel concerning him.” The sheriff on March 15, 1930, made his return of service and on April 14th the firm of Knight, Taggart, Klein '& Reich, by appearance de bene esse, appeared for Delia A. Arthur and presented her petition to preliminarily determine the question of jurisdiction over the defendant, alleging the nonexistence of any such corporation as styled and described in the plaintiff’s statement of claim as The Daily Publishing Company. Upon the said petition a rule was granted on the plaintiff to show cause why the summons should not be quashed and the service thereof, together with the service of plaintiff’s statement, should not be set aside. On April 24th following, the plaintiff filed an answer to said rule, wherein he admits that The Daily Publishing Company, against whom the suit was instituted, is not and never was a corporation, but he challenges the power of the court to set the summons aside and asks for leave to amend the second paragraph of the statement of claim so that the same shall read:

“The defendant, ‘The Daily Publishing Company,’ was duly registered in the office of the Prothonotary of Northumberland County, originally under the name of W. M. Eichholtz and Lewis Dewart, operating under the name and style of ‘The Daily Publishing Company;’ that on the 16th day of November, 1928, W. M. Eichholtz filed an affidavit withdrawing from said company and that the remaining owner of said company is now Lewis Dewart, as shown by the records in the Prothonotary’s Office of Northumberland County. That at the time of the publication of the matter of which the plaintiff complains, W. M. Eichholtz was the editor, Lewis Dewart, business manager, and Samuel C. Price, city editor. That Lewis Dewart is now the owner, trading and doing business under the style and title of ‘The Daily Publishing Company,’ and that Delia A. Arthur is the advertising manager.”

To this answer Knight, Taggart, Klein & Reich filed a paper denominated an “Answer to Plaintiff’s Petition to Amend,” challenging the right of plaintiff to the amendment on the grounds that the statute of limitations has intervened and “that the proposed amendment attempts to bring in a new party on the record who was not served with process in this case, was not named as defendant and did not appear in any manner in the case.” By a paper signed by counsel for the respective parties it was agreed, inter alia:

“That Delia A. Arthur at the time that the summons and copy of plaintiff’s statement were served on her by the sheriff was the person for the time being in charge of the place of business of Lewis Dewart, trading and doing business under the fictitious name of The Daily Publishing Company.
“That Delia A. Arthur is not now, and was not at the time suit was instituted, an employee in any capacity, or the person for the time being in charge of the business of a corporation incorporated either under the laws of Pennsylvania or any other state under the name of ‘The Daily Publishing Company,’ or under the name of ‘The Daily Publishing Company of Sunbury, Pa.’
“That at the time suit was instituted, and at the present time, The Daily Publishing Company was and is a registered fictitious or assumed name, under which an individual, to wit, Lewis Dewart, was and is doing business and publishing the said newspaper; all of which was and is of record in the office of the Prothonotary of the Court of Common Pleas of Northumberland County at the time of instituting the said suit and at the present time.”

The present proceeding is now before us upon the foregoing record, by which we are called upon to specifically determine: (1) The power of the court to set aside the service of the writ of summons and the statement of claim; (2) the power of the court to quash the writ; and (3) the right of the plaintiff to amend his statement in the particulars hereinbefore stated.

As to the service of the writ, the sheriff’s return is as follows:

“Served The Daily Publishing Company, within named defendant, by handing unto Delia A. Arthur, Advertising Manager, the person for the time being in charge thereof, at the place of business of the said defendant company, in the City of Sunbury, County of Northumberland and State of Pennsylvania, a true and attested copy of the within writ, together with a copy of the plaintiff’s statement and making known unto her the contents thereof.”

Section one of the Act of July 9, 1901, P. L. 614, provides:

“The writ of summons . . . may be served by the sheriff of the county wherein it is issued upon an individual ... in any one of the following methods ... (e) By handing a true and attested copy thereof, at his place of business, to his agent, partner, or the person for the time being in charge thereof, if upon inquiry thereat his residence in the county is not ascertained, or if for any cause an attempt to serve at his residence has failed.”

Section two of the said act, as amended by the Act of April 3, 1903, P. L. 139, regulating service upon corporations, partnerships limited, etc., provides:

“The writ of summons . . . may be served by the sheriff upon a corporation, a partnership limited, or a joint stock company, in the county wherein it is issued, in any of the following methods: ... (e) By handing a true and attested copy thereof at any of its offices, depots or places of business, to its agent or person for the time being in charge thereof, if upon inquiry thereat the residence of one of the said officers within the county is not ascertained, or if from any cause an attempt to serve at the residence given has failed.”

The return shows a substituted service in compliance with the act, but it is deficient, in that it does not show that the preliminary inquiry required thereby was made. Under the foregoing statutory provision, a substituted service can only become effective when upon inquiry the residence in the county of the party to be served cannot be ascertained or “if for any cause an attempt to serve at his residence has failed.” And the fact that such inquiry was made or that the attempt to serve at the residence has failed must affirmatively appear in the return. The following cases are illustrative. In the case of Shamokin Lumber and Construction Co. v. Line Mountain Coal Co., 85 Pa. Superior Ct. 222, to which the present case is analogous, it was said:

“The return is defective on its face; while the words used in the return, ‘person in charge of the principal place of business . . .’ would indicate that he intended to make a return under clause (e), a comparison of the return with the requirements of clause (e) shows that the conditions are lacking in which service under that clause may be made. Such a return must specify that by inquiry in the county at the place of business of the corporation where service is sought to be made, the sheriff has not been able to ascertain the residence of any of its officers within the county, or, ascertaining the residence, that for some cause an attempt to serve at the residence has failed. The record questioned does not show that the sheriff made any inquiry, or that, having made the inquiry and learned the residence of such officer, he was then unable to make service at the residence. Recent consideration of the subject, illustrated by returns respectively good and bad, will be found in Park Bros. & Co. v. Boiler Works, 204 Pa. 453, 458; O’Brien v. Bartlett, etc., 12 Dist. R. 746, 747, and Miller Paper Co. v. Keystone C. & C. Co., 267 Pa. 180.”

In American Hotel Supply Co. v. Bryant, 19 Dist. R. 702, the court, in setting aside the service of the writ of summons and statement of claim, said:

“The Act of July 9, 1901, P. L. 614, provides that a service upon an agent at the defendant’s place of business is valid only ‘if, upon inquiry thereat, his residence in the county is not ascertained, or if for any cause an attempt to serve at his residence has failed.’ There is nothing in the return of the constable in this case to show that any inquiry was made with regard to the residence of the defendant, or that a service of the writ upon the defendant at his residence was not possible. It is necessary that the return should disclose these facts before service upon an agent at a place of business can confer jurisdiction of the defendant: O’Brien v. Bartlett, Hayward & Co., 12 Dist. R. 746.”

It is, therefore, manifest that whether by the present service it was intended to serve the writ and statement of claim upon the defendant, either as an individual, a corporation or a partnership, the return is defective and the service thereof, together with the service of the statement of claim, must be set aside.

As to the quashing of the writ, we have not been cited to, nor by diligent search have we been able to find, any authority which rules the present question. The writ, when considered alone or in connection with the statement of claim, discloses neither defect nor irregularity. But when considered in connection with the statement of facts agreed upon, it then appears that the writ was issued against a nonexistent defendant. The question now is whether, for the purpose of quashing the writ, we may read and consider the writ and agreed facts together. Upon the principle, somewhat analogous to the one now under consideration, established in the case of Sipe v. Penna. R. R. Co., 219 Pa. 210, 213, 214, we are of the opinion that they cannot be so read. It was there said:

“Under the authority of our cases, a variance between the writ or declaration in this respect is not a good ground of demurrer; nor can there be, under our practice, oyer of the writ. In Dillman v. Schultz, 5 S. & R. 35, Justice Duncan said: T do not know whether in any stage of an action, advantage could be taken of a variance between the writ and declaration, where the cause of action appeared to be the same. The cases are collected by Sergeant Williams, in his edition of Saunders in the note to Redman v. Edolph, 1 Saund. 318a, who says, it seems to follow from all the decisions, that no advantage can be taken of a defective original, or of a variance between the writ and the declaration. However this may be, it cannot be taken advantage of where the defendant pleads in bar to the declaration.’
“In Overseers of Roxborough v. Bunn, 12 S. & R. 292, this court, speaking again by Justice Duncan, said (p. 295) : ‘In England, a judgment is never reversed in any court of record, for any variance in any writ, original or judicial, from the declaration or other proceedings: Helliot v. Selby, 2 Salk. 701. There the court held, that a defendant cannot take advantage of a variance between a writ and count, without craving oyer of the writ. In Ford v. Bum-ham, Barnes, 340, the court, as praying oyer of the original had been much used to delay, came to a resolution not to grant oyer of the original in future; and, so far have the courts discouraged this dilatory course, that with respect to a writ of error for a defective original, as it would be a hard case to set aside a judgment for a mere slip, the master of the rolls would defeat the writ of error by ordering the original to be amended, or, if necessary, granting a new one: Hole v. Finch, 2 Wils. 393; Redman v. Edolph, 1 Saund. 318a, note. This, however, is not the rule where the variance is in the nature of the action.'
“In 1 Chitty’s Pleading, 9th Am. ed., sec. 244, it is stated that: ‘Regularly the declaration should correspond with the process, but as according to the present practice of the courts, oyer of the writ cannot be craved, a variance between the writ and the declaration cannot in any case be pleaded in abatement or otherwise.’
“And again, the same author, in the 16th Am. ed., sec. 269, states that: ‘It is an indispensable requisite of every declaration that it substantially adhere to the form of action stated in the process, and if it deviate, the defendant may apply to the court or a judge to set aside the declaration for irregularity; so that the plaintiff must abandon his first process and issue a fresh writ stating a form of action adapted to that in his declaration. But the objection is not a ground of demurrer to the declaration, but merely of a summary application to set aside the declaration for irregularity. ... If the body of the declaration state a cause of action that is not, nor could be, properly declared for in the form of action stated in the writ, then the deviation would constitute an irregularity and ground for setting aside the declaration, but not a ground of demurrer.’ ”

We, therefore, hold that we are without power to quash the writ.

Our action in setting aside the service of the summons and statement of claim precludes the necessity for determining the right of the plaintiff to amend his statement of claim for the reason that we acquired no jurisdiction over the defendant and neither is the statement of claim before us.

For the foregoing reasons we now enter the following decree:

And now, June 30, 1930, that part of defendant’s rulé which relates to the setting aside of the service of the writ of summons and statement of claim is hereby made absolute and the said service set aside; that part of the rule relating to the quashing of the writ is discharged; the plaintiff’s motion for leave to amend his statement of claim is discharged and leave to amend is denied.

An exception is noted and bill sealed for both the plaintiff and defendant.

Prom C. M. Clement, Sunbury, Pa.