author: Per Curiam. —

text:
    Chesney v. Lehigh Valley Coal Company.

      Joseph S. Hollister and G. H. Gerber, for plaintiff.

      Edward J. Flynn, for defendant.
   Per Curiam. —

This is an action of trespass instituted by the plaintiff to recover for damages to her realty and personalty caused by several overflows of Shamokin Creek. By agreement of counsel for the respective parties, the case was submitted to the court without a jury. The history of the case, the plaintiff’s allegations of negligence, the defendant’s ground of defense, the separate findings of fact and conclusions of law as stated by the court are all set out in the opinion heretofore filed, a reference to which is now made and need not now be here repeated. The question of defendant’s liability was resolved in favor of the plaintiff and damages awarded in the sum of $3081.48.

In view of the large number of like cases now before us, we invited, in our written opinion, counsel for the respective parties to raise all questions by their present exceptions, so that a final disposition thereof may be made and the future litigation simplified and expedited. That they have availed themselves of this invitation is evidenced by the fact that plaintiff has filed twenty exceptions, consisting of twenty-five paragraphs, and the defendant twenty-five exceptions to the opinion of the court and our answers to their respective requests. It would thus appear that all questions likely to arise in the pending cases may now be determined and set at rest.

All of the plaintiff’s exceptions bear upon questions of damages and are susceptible of grouping into five distinct classes: Class 1, those exceptions— one to twelve, inclusive — relating to inadequate allowances or disallowances of damages for injuries to the personalty and realty; class 2, those exceptions — thirteen to sixteen, inclusive — relating to disallowances of compensation for delay in-payment; class 3, those exceptions — seventeen and twenty— relating to disallowance of compensation for inconvenience; class 4, eighteenth exception, for disallowance of interest from the date of injury; class 5, the nineteenth exception, for disallowance of punitive damages.

The defendant’s exceptions cover a wide range, embrace phases of the case not contemplated in plaintiff’s exceptions, and can be more intelligently disposed of when considered separately.

We shall, therefore, proceed to consider plaintiff’s exceptions. Speaking generally of exceptions in group one and with special reference to damages to personalty, it may be said that real value becomes the measure of damages, in cases such as the one before us, only when market value cannot be shown: Stauffer v. Miller Soap Co., 151 Pa. 330. But whatever measure be adopted, whether the real or market value, the amount of the damages is to be determined by the value of the injured article at the date of the injury — and this applies to growing crops: Taylor v. Canton Township, 30 Pa. Superior Ct. 305. In no event may damages be allowed for injuries to property unless value be shown, or such description of the injured article be given as will convey sufficient information upon which to base an intelligent estimate of value. And where damages are sought to be established by an opinion of value, an estimate in a lump sum without a specification of the items forming a basis for the estimate is not sufficient for that purpose: Adam Robb v. Carnegie Bros. & Co., 145 Pa. 324. In the present case the disallowances resulted, not from the application of the rule of market value as the measure of damages, but because the evidence, when viewed in the light of the foregoing observations, was insufficient to establish with any degree of certainty any satisfactory basis upon which to found a value as of the date of the injury.

This brings us to a consideration of the specific items of complaint.

Exceptions under class 1.

The second exception complains: “That the court erred in fixing the value of the garden truck on its own opinion, not supported by any evidence.”

Our allowance for this item was $10. The estimate of the plaintiff was based upon a lump sum and was fixed at $30. She could furnish* no details of the items of value making up her estimate, nor did the whole of her testimony furnish a satisfactory basis for estimating the value. Moreover, it was clear that her estimate was based upon the value of the truck when and if harvested and not as of the date of the injury. In making the original allowance, we felt that the plaintiff had sustained some loss upon this item and thus desired to adjust it on equitable grounds; but, inasmuch as the plaintiff objects to that method, it must now be determined upon the strict application of legal principles. The evidence viewed in this light requires us to now disallow the $10 heretofore allowed as not being sufficiently supported by the evidence.

The third and fourth exceptions: “That the court erred in not awarding damages for the loss of ornamental bushes, flowers or grape vine, and in not allowing for loss of grapes in the years 1920 to 1927, inclusive.”

There was no evidence to establish the value of the grape vines. The plaintiff testified that the annual crop prior to 1919 was worth about $20. Although the vines were destroyed in July, 1919, before the crops came to maturity, we allowed her $20 for the grapes for that year. That was full compensation under the evidence. To make an annual allowance of that amount for the subsequent years would manifestly be unjust to the defendant, for the reason that the crops are too uncertain and speculative and because it would be an application of the wrong measure of damages, which is the value of the vines as they were at the date of injury in July, 1919, and as they then stood with a crop of immature grapes. It was for the plaintiff to produce satisfactory evidence of this value, and having failed in this respect, no allowance can be made.

As to the damages to ornamental bushes, the plaintiff in her direct examination fixed the values predicated by their cost at figures varying from $1 to $2.50 for each bush; but under cross-examination she testified that her husband bought the plants and that she did not know what they cost. It was thus established that the basis upon which she predicated her opinion lacks substance, and no allowance can be made.

Exception 5: “The court erred in allowing only! $10 for loss of garden truck in years 1920 to-1924, both inclusive. The evidence is that the garden was not productive until 1927.”

This exception is subject to the same observations as we made to exception No. 2, and for the reasons there givén, the $50 as originally allowed must now be disallowed and stricken off.

Exception 6: “The court erred in requiring the plaintiff to furnish names, addresses, descriptions of men and receipts for amount paid to each of the men, she having testified to the amount paid per day and the number of days.”

This exception complains of our disallowance of claims for moneys alleged to have been paid to several laborers for services rendered in cleaning up the debris after the several floods. In disallowing it, we said that she could furnish neither names, nor addresses, nor descriptions, nor receipts. By this we are not to be understood as meaning that all of these elements must be shown in order to sustain the claim, but what we do mean is that at least some of them should be presented. The damages must be proven like every other fact in the case, and to allow the present claim on the evidence as produced would be tantamount to saying that the mere statement of the claim is of itself sufficient to support it. We repeat here what we said in our opinion: “Generally speaking, the testimony should be sufficiently definite to afford the persons sought to be charged an opportunity of testing it, checking it up or contradicting it and such as would reasonably lead the mind to a conviction of the truth thereof.”

Exception 7: “The court erred in disallowing the claim for flooring and labor on the stable, the size of the stable and other information being sufficient for a jury (the court) to fix the damage for this item.”

The plaintiff’s witness, Mr. Boyer, estimated the cost of raising and repairing the stable at $35, based upon a six-foot raise. As plaintiff’s recovery is limited to the cost of a three-foot raise, we apportioned the estimate and fixed the estimate at $17.50. The complaint is now that a further award of $38 should have been made for flooring purchased and laid by the plaintiff. The evidence in relation thereto was on a par with the evidence produced to sustain her claim as discussed under the immediately preceding exception. The observations there made are applicable to this exception. And for the reasons given in our opinion, no allowance could have been made for this item. Moreover, it is significant that while the plaintiff in her forty-second request for findings of fact itemized the damages for which she claimed allowance, no claim was there made for the item now under consideration.

Exception 8: “The court erred in holding that the evidence as to the value is insufficient to allow any damage for loss of clothing, the court requiring proof of market value, which is not necessary in claims for personal property lost through the tort of the defendant.”

The plaintiff’s estimate, upon direct examination, was based upon a lump sum of $20. Her cross-examination discloses no satisfactory basis for the estimate, which if made at $75 or more would be entitled to just as much weight as her estimate of $20. Our observations made under exception 2 are applicable to this exception. We repeat: “The disallowance resulted not from the application of the rule of market value as the measure of damages, but because the evidence was insufficient to establish with any degree of certainty the real value.”

Exception 9: “The court erred in holding that the evidence as to value is insufficient to allow damages for the cupboard, evidence of loss being furnished, market value need not be proved in actions for loss through the tort of the defendant.”

The only evidence offered in support of this item was that a cupboard which some time prior to the injury cost $10.50 was destroyed. There was no evidence of its value at the time of the injury and no description from which a value could be approximated. No allowance could be made.

Exception 10: “The court erred in holding that the evidence of James Reinard is competent and to be considered as an estimate in connection with cost of raising the double and single houses on the lot.”

Testimony of the witness John Reinard was competent. His lack of knowledge of the details of the building affected only its weight. But, in any event, the plaintiff was not prejudiced by this testimony, for, as we shall show under our disposition of the eleventh and twelfth exceptions, our assessment was made upon the testimony of plaintiff’s witness, Mr. Boyer, viewed in the light of the controlling legal principles.

Exceptions 11 and 12: “The court erred in fixing the cost of raising the double house at $1189.76, said amount is a figure not supported by any evidence, and erred in fixing the cost of restoring the middle house at $651.20, said amount is an arbitrary figure, not supported by any competent evidence.”

These exceptions raise the same questions and will be considered together. The argument in support of them is founded upon two suspicions — the word is used advisedly. First, that we gave undue weight to the testimony of the witness Reinard; and, second, that we arbitrarily set down the figures regardless of the evidence. We did neither. The argument upon the exceptions challenged not only the correctness of the assessment, but the fairness and honesty as well. It, therefore, calls for notice. To demonstrate just how groundless these suspicions are we shall elucidate our findings.

The measure of damages adopted by us and to which we still adhere, as applicable to these items, is laid down in the case of Gift v. City of Reading, 3 Pa. Superior Ct. 359. Here, as there, the plaintiff and her family continued to reside in her house notwithstanding the floods. The measure as there laid down is contained in the following excerpt from the opinion:

“ ‘None of the plaintiff’s real estate was taken for any public use by the defendant. The property was not wholly destroyed or irreparably injured. It appears that the plaintiff and her family continued to reside in the house, notwithstanding the floods, and, with the exception of the cellar, used it as before the diversion of the water. If, therefore, the defendant is liable at all, it is for such injuries only as were done to the property, and the measure of compensation would be the cost of repairing the damages and thus restoring the property to its former condition, unless such cost would equal or exceed the value of the building, in which case the value of the building would be the measure of the plaintiff’s damages:’ Lentz v. Carnegie Bros. Co., 145 Pa. 612; Eshleman v. Township, 152 Pa. 68.”

What is meant by the phrase “restoring to its former condition?”

In Anderson v. Miller, 96 Tenn. 35; 7 Am. Law Reps. 293; 31 L. R. A. 604; 54 Am. St. Reps. 812; 33 S. W. Repr. 615, the jury were instructed that the measure of damages would be the reasonable cost of restoring property which had been partially destroyed by fire, communicated to it by a fire on adjoining premises, to its former condition. The court held that the instructions were correct, since they meant that the building, as replaced, should be of equal value to that destroyed, taking into consideration depreciation due to age. It was said: “In regard to the measure of damages, the charge of the court was correct in directing the jury that it would be the reasonable cost of restoring the property to its former condition. This does not mean, as argued by counsel, that it was the cost of a new building, the same as that destroyed, and the jury could not have so understood it, but the proper construction was that the building, as restored, should be of equal value to that destroyed, taking age and depreciation into consideration.”

The plaintiff’s witness, Mr. Boyer, gave it as his opinion that the building was about twenty years old.

It is also to be remembered that the estimate of this witness was not based upon any knowledge of the condition of the house prior to or at the time of its being raised, but upon inspection made by the witness after the house had been raised to a height of six feet, whereas the liability of the defendant was limited to a raise of three feet. As bearing upon the effect of raising the building, and especially as bearing upon the difference in the effect of raising it to a height of three feet instead of to a height of six feet, he testified:

“A. The most damage is in the outside sills, which are usually bad in an old building; if it is not raised, it would continue to hold the building up for a long while, but where the building is moved, new sills are required, and that is what causes the greater part of the damage; the raising does not necessarily disturb anything about the floors. Q. I understand your testimony in relation to the cost of raising as it becomes higher, what is the effect as you continue to raise higher on the plastering and the papering and on the old building? A. The effect would be that the higher the building is raised the harder it would be on the plastering and on the papering which would be the same. Q. Is that also true on the old material on the old building? A. Yes, sir; the replacements in the raising; any replacement would practically be the same. Q. The higher you go up necessarily there would be an increased damage to that building? A. The plaster, yes, sir.”

In relation to the steps, he testified as follows:

“Q. Now these new steps that you figure cost $72; do you know whether or not they are replacing old steps? A. That is something now that I don’t know about; the building was raised — do you mean the four pairs outside and the two pairs in the cellar? Q. The outside steps; do you know whether or not there was outside steps? A. Why I suppose there was. Q. Don’t suppose, please! A. I don’t know. Q. This estimate of yours is based on new steps? A. Yes, sir. Q. That is, steps in front of each front door? A. No, sir, not in front; one door — a pair for the two front doors for each family, in the rear a pair. Q. The steps that I refer to are in the rear? A. Two pairs in the rear and one pair in front. Q. That testimony is based on new porches and new steps?”

He further testified positively that he had no knowledge of the condition of either the plastering, papering or steps at the time the building was raised, nor was there any evidence to show what the conditions were.

With Boyer’s testimony before us, viewed in the light of the foregoing factors, let us now see how far we departed from it and to what extent our allowance is “arbitrary.” A comparison between our allowance and the plaintiff’s 42nd request for finding of fact is illuminating. Presumably the plaintiff’s request is most favorable to herself and is based upon the testimony of Boyer, and Boyer alone. That portion of her said request pertinent to the present inquiry and applicable to the front house is as follows:

Damages for building and filling lot.
Raising house 3 feet....................................$ 180.00
Finishing in basements................................. 540.00
Plastering ............................................. 234.00
Repairing 12 rooms and two attics____1.................. 360.00
Raising walls 3 feet.................................... 244.80
Airy-way on one side.................................... 28.00
Airy-way on other side.................................. 24.00
Steps................................................. 72.00
2 pairs cellar steps..................................... 36.00
Cost 10% less in 1919. $1718.80 . 171.88
Actual cost 1919........................................$1536.92
Add 10% contractor’s profit.............................. 153.69
$1690.61

Our allowance, although not detailed in the opinion, is herewith itemized as follows: 1

Front house.
Raising house 3 feet....................................$ 180.00
Finishing in basements................................. 324.00
Repairing 12 rooms, 2 attics............................. 216.00
Raising walls 3 feet.................................... 244.80
Airy-way, one side...................................... 28.00
Airy-way, other side.................................... 24.00
Steps, outside.......................................... 43,20
2 pairs cellar steps...................................... 21.60
10% contractor’s profit., $1081.60 . 108.16
$1189.76

Comparing the figures, it appears that our allowances for the raising of the house, raising of the walls, areaway on one side and areaway on the other side are precisely the same as those contained in the plaintiff’s request, supra. The item “finishing in basements $540.00” could not be allowed in its entirety. It represents the estimate of Boyer for new plastering and new papering throughout the entire house, and while there was no precise testimony as to the percentage of depreciation, yet a reasonable regard must be had for depreciation arising from natural wear and tear, age and decay, and especially must due consideration be given to the extra damage caused by excess raising of the house. We, therefore, conclude that 60 per cent, of the estimate was the outside figure to which the plaintiff was entitled, and thus reached the figure in our allowance of $324 for that item. We still hold that that allowance is pre-eminently reasonable. The request for the item, “plastering, $234.00,” could not be allowed. This for the reason that, in our opinion, it is embraced in the item of $540, just considered, and as explained by the witness Boyer. To allow it separately from the $540 would be a duplication and thus impose upon the defendant a double liability for that item. The request for the item, “repairing 12 rooms and 2 attics, $360.00,” could not be allowed in its entirety for the same reason as just given in our relation to the request for the item of $540. The testimony of Boyer is that “they were in pretty bad condition.” Our allowance is 60 per cent, of Boyer’s estimate, or $216. This, top, in our opinion, is a most favorable assessment for the plaintiff. Neither could either of the remaining two requests — “steps, $72.00,” or “2 pair of cellar steps, $36.00” — be allowed in their entirety. Both of these figures are based upon Boyer’s estimate of new steps and are predicated upon a raise of six feet. We repeat again that defendant’s liability is limited to costs incidental to a raise of three feet. Naturally, both of these items call for an immediate reduction of 50 per cent., but, having a regard to the fact that the landings would not be affected by the extent of the raise and that depreciation would not be a proper factor for reduction as to these items, we increased the allowance by a further 10 per cent, and thus made a deduction of 40 per cent., or, in other words, an allowance of 60 per cent, of Boyer’s estimate, to wit, $43.20 and $21.60 for these items, respectively.

It is thus shown that our assessment was based upon the testimony of the plaintiff’s witness, Boyer, and was not the mere result of arbitrary figures.

Proceeding now to similarly consider the allowance for damages to the middle house, we extract from the plaintiff’s 42nd request for findings of fact as follows:

Four-roomed house on middle of lot.
Raising 3 feet..........................................$150.00
Raising wall 3 feet...................................... 154.80
Plastering ............................................. 80.00
Papering .............................................. 66.00
Cellar steps............................................. 18.00
2 pairs outside steps.................................... 36.00
Painting 2 pairs outside steps............................ 12.00
Painting 2 basement rooms............................... 40.00
Finishing 2 basement rooms.............................. 192.00
$748.80
Cost 10 % less in 1919................................... 74.88
Actual cost 1919........................................$673.92
Add 10% contractor’s profit.............................. 67.39
$741.31

Our allowance is $651.20, and is itemized as follows:

Middle house.
Raising 3 feet..........................................$150.00
Raising walls 3 feet....................... 154.80
Plastering ............................................. 48.00
Papering .........................'..................... 39.60
Cellar steps............................................. 10.80
2 pairs outside steps..................................... 21.60
Painting 2 pairs outside steps............................ 12.00
Painting 2 basement rooms............................... 40.00
Finishing 2 basement rooms.............................. 115.20
$592.00
10% contractor’s profit.................................. 59.20
$651.20

A comparison of the items and corresponding figures in these two statements show that our assessments for raising the house, raising the walls three feet, painting the outside steps and painting the basement rooms are identical with the plaintiff’s request. The plastering, papering, cellar steps, outside steps and finishing two basement rooms are susceptible to the same reduction and the same observations as made to the immediately preceding item. For the reasons there given, we applied a 60 per cent, allowance of Boyer’s estimate to these latter items and thus reached the figures set out in our assessment.

Exceptions under class 2.

The complaints under this class of exceptions arise mainly out of alleged errors in our statement of facts bearing upon the delayed trial of the case and our disallowance of compensation for delayed payment. That portion of the opinion to which the complaint is here directed is taken therefrom as follows:

“In the present ease, as above stated, the damages had their inception in the flood of 1919. Suit was not instituted until 1921. The statement was not filed until 1923 and the case was not ordered on the trial list until 1925. None of these delays are chargeable to the defendant. Moreover, the plaintiff in her statement of claim laid her damages at $10,000. This, of itself, is not sufficient to warrant the belief of an extortionate demand, because it is the common practice in pleading to fix the amount claimed at a higher sum than the plaintiff is willing to accept or expects to get, but here the inordinate demand in the statement is followed by a request for a finding of fact fixing the damages at $6650.86. The defendant is justified in resisting, by litigation with its consequent delays, a demand so inordinately high, is excusable in not promptly paying and should not be visited with a penalty for non-payment.”

This statement should be amplified by adding that plaintiff, by her 7th request for conclusions of law, insisted upon additional allowance for punitive damages and compensation for loss of use.

The docket entries show the institution of the suit on Aug. 9, 1921; filing of the statement April 10, 1923; “at issue” and ordered on the trial list June 4, 1923; continued Oct. 9, 1923; ordered off list until replaced by application of counsel Aug. 28, 1925. And thus, by repeated orders, the case was “on and off” the trial list until the foregoing agreement for trial was entered into by counsel for the respective parties. No reasons for these repeated continuations are stated in the docket. But the plaintiff’s statement that they were due to attempted efforts to compromise and negotiate settlement as well as to the illness of counsel and appeals then pending in other like cases, if accepted as the real reasons for the continuations, is not legally sufficient to charge the delays to defendant so as to visit penalties upon it. By this it is not meant, as argued by counsel, that we charge the delays to the plaintiff; but rather that they are chargeable to both parties and not to the defendant alone, for the reason that the benefits to be derived from settlements and delays in anticipation of the decisions of pending appeals inured to the benefit of both the parties.

Subsequently to the filing of our opinion and verdict, the plaintiff was awarded a rule upon which testimony tending to show the reasons for the delay was taken. No specific claim for damages for delay in payment was made in plaintiff’s statement. Nor is it necessary to our decision here to decide whether, in the absence of such claim, an allowance therefor may be made. For, howsoever claimed, it is to be remembered that ordinarily the object of the measure of damages is compensation. Punishment is the exception. And when the plaintiff sought to bring her claim within the exception, whether a basis therefor was laid in her statement of claim or not, the burden rested upon her to produce testimony necessary to establish it. That was a part of her case in chief. Having failed in that, she ought not to have been accorded the privilege of such presentation after the close of the case and the rendition of the verdict. The rule was improvidently awarded, and the testimony will not now be considered. However, apart from this and as herein-before indicated, even the acceptance of plaintiff’s supplementary testimony is insufficient to establish the claim.

When writing the opinion, the plaintiff’s statement of claim was not in the files. Our recollection was that the amount claimed was $10,000. Since the filing of the exceptions, the statement was returned to the files aiid instead of showing a claim for $10,000, it shows a claim for $11,000 for temporary and permanent damages and a further claim of $6000 for punitive damages. That part of the opinion should, therefore, be amended so as to conform to the latter figures. A fortiori, the conclusions are strengthened.

Counsel in their printed brief argue that “at the conclusion of the trial there- was absolutely no evidence that any demand had ever been made.” Excepting the plaintiff’s statement, that is correct; but if the plaintiff’s statement be not a demand, then we are at a loss to understand what its real import is. But, aside from this, the eighteenth paragraph of plaintiff’s statement of claim is a specific demand for the damages therein alleged to have been sustained.

We fully appreciate that in thus dignifying, by answer, these apparently trifling contentions we are violating the present practice of the courts to shorten its opinions. But we are constrained to this course in order to demonstrate the indecorum and captiousness that marked the plaintiff’s argument.

Exceptions under class 3.

These exceptions complain of our action in refusing to affirm the plaintiff’s 5th request for conclusions of law and to make an award for damages for full use and inconvenience.

Such action could not have been taken without doing violence to the applicable measure of damages. See Gift v. City of Reading, supra.

Exceptions under class 4.

The 18th exception complains of our action in refusing to affirm plaintiff’s 6th request for conclusions of law. This request was for an allowance of interest from the date of injury to the date of trial. Our discussion of that subject, as set out in the sixteenth, seventeenth and eighteenth pages of the opinion, is a sufficient answer to this exception.

Exceptions under class 5.

This exception complains of our action in refusing to affirm plaintiff’s 7th request for conclusions of law. The request was for an allowance by way of punitive damages. This exception is sufficiently answered in our discussion on page nineteen of the opinion. Due to a clerical error, the case of Williams v. Metropolitan Edison Co., 267 Pa. 162, was mistakingly cited in support of our conclusion. The supporting authority is to be found in 207 Pa. 162, in the case of Lynch v. Troxell, and is now substituted for the authority there cited. The erroneous citation, however, in no way affected the conclusion there reached, and for the reasons indicated in our opinion, this exception cannot be sustained.

This brings us to a consideration of the defendant’s exceptions.

Exception 1: This exception is fully answered in our answer to the request.

Exceptions 2 and 3: The testimony complained of in these exceptions was as definite as the nature of the case required and amply sufficient upon which to predicate a finding of damages.

Exception 4: The defendant’s 18th request for finding of fact, as stated in this exception, was refused as drawn because it contained the implication that the deposits therein enumerated caused the overflow of the creek. That they were contributing factors cannot be gainsaid; but not to the extent charged by the request. Such contribution did not, however, operate to exonerate the defendant from liability. For the presence of such articles and the fact that a dumping ground was maintained near the creek and the likelihood that such material Would find its way into the creek were circumstances of which the defendant was bound to take notice in its reconstruction of the channel. So that when it voluntarily assumed the task of narrowing it, it became charged with the duty of constructing it of sufficient width to properly vent the water and all other matter that might reasonably find their way into the channel.

Exception 5: The answer to defendant’s 3rd request for conclusion of law is a sufficient answer to this request.

Exceptions 6, 7, 8 and 10: The defendant’s request for conclusions of law, as set out in these exceptions, were refused because the necessity for raising the lot and the lands and buildings of the plaintiff sufficiently appears by the testimony, and to have affirmed the requests would have resulted in a denial to the plaintiff of the right to recover for injuries within the proper measure of damages.

Exception 9: The subject-matter of this exception is fully discussed in our opinion, which we submit as a complete answer hereto.

Exceptions 11 to 17, inclusive: All of these exceptions complain of errors in the separate findings of fact 'by the court. To detail the testimony from which they are taken would unduly lengthen the opinion without serving any useful purpose. It is sufficient to say that each and every one is fully warranted by testimony, both competent and ample.

Exceptions 18 to 24, inclusive: All of these exceptions complain of errors in our separate conclusions of law. These conclusions were the result of the application of the law, as we hold it to be, to the facts as found. The subject-matter of these exceptions finds full discussion in the opinion. No useful purpose would be conserved by repetition. Upon a reconsideration of the case, we can discover no errors, and these exceptions cannot be sustained.

Exception 25: This exception challenges the correctness of the verdict.

The correctness of the verdict is dependent upon the correctness of the facts as found and the application of the law pertinent thereto. As hereinbefore suggested, we have discovered no errors in either of these respects, and, hence, this exception cannot be sustained; excepting that the figures should be modified so as to conform to the disallowances hereinbefore made.

For the reason herein given, the plaintiff’s 2nd and 5th exceptions must be sustained, the assessment heretofore made of $10 for garden truck and $50 for loss of use for 1924 must be disallowed; the remaining of plaintiff’s exceptions and all of the defendant’s exceptions must be dismissed.

Reducing our former assessment by the amount of these disallowances, the verdict should be amended to read $3021.48, and the following decree entered:

And now, Nov. 26, 1928, the plaintiff’s 2nd and 5th exceptions are hereby sustained, the assessment heretofore made of $10 for garden truck and $50 for loss of use for 1924 are hereby disallowed, the remaining plaintiff's exceptions and all of defendant’s exceptions are dismissed and judgment is hereby directed to be entered for the plaintiff, Annie Chesney, and against the defendant, the Lehigh Valley Coal Company, for the sum of $3021.48.

Exceptions are noted and bills sealed for both the plaintiff and defendant.

From C. M. Clement, Sunbury, Pa.


source: Caselaw Access Project

author: Potter, P. J.,

license: Public Domain

text:
    Steininger v. Spaid et al.

      William H. Hackenburg and Fred V. Follmer, for plaintiff.

      A. F. Gilbert and Jay G. Weiser, for defendants.
    Aug. 26, 1929.
   Potter, P. J.,

This is an action of ejectment brought by the plaintiff against the defendants for the recovery of the possession of a dwelling-house and lot of land, situate in the Borough of Middleburg, which is the county seat of Snyder County. The trial of the suit before a jury resulted in the rendition of a verdict for the plaintiff, and the defendants have filed reasons for a new trial.

This plaintiff and his wife are well advanced in years, have no children, being in the early seventies in age, and are the subjects of the infirmities incident to their age in life. George Spaid is the husband of Mrs. George Spaid, younger in years than the plaintiff, and the other two defendants are their son and daughter. Approximately in the year 1922, the defendants, by some kind of verbal agreement with the plaintiff, moved into the home in dispute with the plaintiff and his wife and continued to reside with them up to Jan. 21, 1926, when the agreement, marked as defendants’ Exhibit No. 1, was executed, and since that time up to this date. In this agreement it is stipulated, among other things, that the defendants are to live with the plaintiffs, care for them kindly, and at the death of J. M. Steininger, the plaintiff, the home is to be theirs, but no provision is made for the wife of J. M. Steininger should she survive her husband. Several minor provisions are also made as to the providing of fuel, food, &c., by the respective parties to the agreement. Not long after the execution of this agreement, the plaintiff and his wife left their home and left the defendants in possession, and since that time have been living with friends and relatives. The defendants remained in possession and are now so. The plaintiff contends that the defendants have violated the terms and provisions of this agreement, and have treated him and his wife so unjustly and unkindly that they were obliged- to abandon their home, and he has brought this suit to oust them and again recover the sole possession of his home, and, as we have said, the trial resulted in a verdict in his favor.

The defendants deny any unjust or unkind treatment by them of the plaintiff and his wife. Witnesses have testified both pro and con on this question, wherefore it became a question of fact to be passed upon by a jury. George Spaid is a brother of Mrs. J. M. Steininger. A note for $6000 payable at the death of the plaintiff, without interest, was also executed and delivered by him to George Spaid when the agreement was executed, which was immediately entered as a lien against the plaintiff’s real estate. The plaintiff was bail on two notes of George Spaid in the sum of approximately $3200. Spaid and his family, prior to 1922, had resided in Beavertown, Snyder County, about eight miles west of Middleburg, where he owned a dwelling, a mill and a tract of land, being timber land, which he values at, respectively, $5000, $4500 and $1000. He had debts of approximately $6090.

At the trial it was proposed by the defendant to produce testimony as to the oral agreement tinder which the Spaids moved into the home of the plaintiff in the year 1922. This was objected to by the plaintiff, and we sustained the objection, thereby barring the admission of this proposed oral testimony. Our ruling on this question constitutes one of the principal, if not the principal, reason or reasons for the new trial.

In the case of Wodock v. Robinson, 148 Pa. 503, it is said: “It is a rule too firmly rooted in justice and honesty to be easily eradicated from any system of wise laws, that all negotiations, all conversations, all oral promises, all verbal agreements are forever merged in, superseded and extinguished by the sealed instrument which is the final outcome and result of the bargaining of the parties. And, unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms can neither be added to nor subtracted from by parol evidence.” We had this legal principle in mind when we refused to receive the offered testimony, and in no part of the proceedings have the defendants alleged fraud, accident or mistake. This same principle of law is again reiterated in the case of Wright v. General Carbonic Co., 271 Pa. 332, page 335, where it is stated that “all negotiations between the parties are merged in the agreement subsequently entered into. This proposition is undoubtedly correct unless fraud, accident or mistake be alleged.” In the case of Eberle et al. v. Bonafon’s Exec’r et al., 17 W. N. C. 335, even “evidence of a contemporaneous parol agreement which does not tend to establish fraud, mistake or trust is not admissible to change the effect of a written contract.” Were the door opened for the admission of all the loose dicta of the parties, running, it might be, through a lofig course of years, the flood of evil would become so great as to sweep before it every barrier of confidence and safety which human forethought, springing from experience, is so sedulous to raise against the treachery of memory and the falsehoods of men. To avoid, therefore, what would be a social calamity, it is settled and recognized as a maxim that oral evidence of an agreement or understanding between the parties to a deed or other written instrument, entertained before its execution, shall not be heard to vary or materially affect it: Cozens v. Stevenson, 5 S. & R. 421; Rearick’s Exec’rs v. Rearick, 15 Pa. 66. We might cite many more cases sustaining this principle, such as Lowry v. Roy, 238 Pa. 9; Gianni v. Russell Co., 281 Pa. 320, as well as others, but we deem it not necessary. Thus fortified by the appellate courts, we do not think we committed error in excluding the testimony offered in this behalf.

And now we come to the question raised in defendants’ first point, viz., that ejectment will not lie in this case. It will be noted that no deed passed for the property. It was to be passed after the death of the plaintiff. Therefore, so far as relates to the property in dispute, no consideration passed by the agreement. It was held in abeyance till after the death of the plaintiff. Spaid took no title to the home. It still remained in the plaintiff. A promise of conveyance was made which might never bear fruit. A marked distinction is to be drawn between this case and those cited by the defendants in their brief. In all of them a deed had passed. The consideration for future care and support had been paid. The legal title was in the grantees, while in the case at bar it remained in the person whose property was to be granted after his death. As long as he lived he had full dominion over it. If the Spaids faithfully performed their part of the contract till the death of the plaintiff, the property was then to be theirs, not otherwise. Would this not be an estate on condition which could be defeated by non-performance of the covenants in the agreement by the expectant grantees? And if they failed to perform these covenants, still occupying the premises, could not the legal owner oust them by ejectment? We think he could. If he could not, who could? Surely not a stranger. Let us suppose, for the sake of the argument, the Spaids did not do their duty in accordance with the terms of the agreement. Let us suppose they did not treat the plaintiff and his wife as they should. Let us suppose the plaintiff and his wife were compelled, by bad treatment, to withdraw from their home and leave the Spaids in possession. If in that event Steininger could not institute proceedings of ouster, then he and his wife would be wanderers upon the face of the earth in their old age, and others would enjoy the fruits of their labors in earlier life. This would not be justice or equity from any viewpoint. Looking at the matter from every angle, we think ejectment will lie in this case. We are not herein saying the Spaids are at fault, but the jury have said so by their verdict. As they have decided this question of fact after hearing the testimony both ways, it must stand, so far as concerns us. We have no authority to set aside their solemn verdict.

We have examined the other reasons assigned, and, from our viewpoint, they cover questions of fact on which the jury have passed. They need no discussion. We have now, at some length, discussed the two vital reasons assigned. We cannot view them from the defendants’ standpoint, hence we enter the following order or decree:

And now, to wit, Aug. 26, 1929, the new trial is refused and the reasons assigned therefor are dismissed. And we direct that judgment be entered upon the verdict of the jury upon compliance with the usual legal requirements. To which ruling by us an exception is noted for the defendants and a bill is sealed.

From A. Francis Gilbert, Middleburg, Pa.


author: Sherwood, J.,

text:
    Commonwealth v. Senft.

      Amos W. Herrmann, District Attorney, for Commonwealth.

      Walter I. Anderson, for defendant.
    May 23, 1929.
   Sherwood, J.,

Fred Allen Senft, the defendant, was indicted to No. 2, January Sessions, 1929, charging him in two counts with murder and manslaughter. On Jan. 7, 1929, the defendant, being arraigned, pleaded guilty. On Tuesday, Jan. 15, 1929, the defendant having been convicted by confession, the court in banc proceeded .to hear the testimony by the examination of witnesses for both the Commonwealth and the defendant.

The presumption of the law is that the crime of the prisoner was murder of the second degree. The burden was on the Commonwealth to show, by the examination of witnesses, that it was of the first degree, for his plea did not raise it to that degree. The law in its humanity, even when he pleaded guilty, still presumed that he had not wilfully, deliberately and premeditatedly taken life.

The rule of law applicable in this case is that “if from the evidence it appears that the prisoner did not think, reflect and weigh the nature of his act when he shot the deceased, or if a reasonable doubt intervenes to prevent a fair and honest mind from being satisfied that a deliberate and premeditated purpose to take life existed, this forbids a conviction of murder in the first degree.” It is true that such is the swiftness of human thought that no time is so short in which a wicked man may not form a design to kill and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and a court (sitting to determine the degree of guilt) must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the court must find, the actual intent; that is to say, the fully formed'purpose to kill, with so much time for deliberation and premeditation as to convince them that the purpose is not the immediate oifspring of rashness and impetuous temper and that the mind has become fully conscious of its own design: Com. v. Drum, 58 Pa. 9. Again, in Jones v. Com., 75 Pa. 403, it is said: “Intoxication is not an excuse for crime, but if it deprives the intellect of power to think and weigh the nature of the act, it may prevent a conviction of murder in the first degree.”

From all the evidence before us, which has been carefully considered, the court in banc is not convinced beyond a reasonable doubt that there was premeditation or deliberation on the part of the prisoner when he fired the fatal shot or that he did so with a specific intent to take life.

And now, to wit, May 23, 1929, the defendant having been convicted by confession and the court having proceeded by the examination of witnesses and having heard counsel for the defendant as required by law, we determine the degree of the crime, committed by Fred Allen Senft on Nov. 12, 1928, in killing Betty Mary Rudisill, to be murder of the second degree.

From Richard E. Cochran, York, Pa.


author: Patterson, P. J.,

text:
    Commonwealth v. Altoona Beverage and Ice Co. et al.

      Robert M. Ewing, for plaintiff; Robert A. Henderson, for defendants.
    July 11, 1929.
   Patterson, P. J.,

This is a rule to show cause why judgment in the Commonwealth of Pennsylvania v. Altoona Beverage and Ice Company and United States Fidelity and Guarantee Company, to No. 74, March Term, 1928, in the Court of Common Pleas of Blair County, should not be opened and defendants allowed to defend and answer thereto.

On May 14, 1928, the Altoona Beverage and Ice Company was granted a permit, under the Act of Assembly approved Feb. 19, 1926, P. L. 16, for the manufacture, etc., of alcoholic beverages not prohibited by law, and said defendant company, as principal, and the United States Fidelity and Guarantee Company, as surety, executed a bond to the Commonwealth of Pennsylvania, with a warrant of attorney to confess judgment, in the penal sum of $10,000, in accordance with the said act of assembly for the issuance of said permit. Thereafter, said beverage company did manufacture and sell its products at their place of business in the City of Altoona. Later, said beverage company was cited by the Pennsylvania Alcohol Permit Board to Show cause why its permit should not be revoked for violation of the National and State Prohibition Laws and Rules, and on Dec. 7, 1926, after hearing, the said board filed its report, setting forth that the beverage company had violated the National and State Prohibition Laws, and the bond given was declared forfeited, and on March 2, 1928, a Deputy Attorney-General confessed judgment on said bond against the petitioners herein in the sum of $10,000. On June 4, 1928, the rule above referred to was issued by this court and answer filed thereto by the Commonwealth.

Question involved.

The defendants in said judgment contend that the act of assembly under which said bond was given does not contemplate the amount of said bond as liquidated damages, but that it is only to secure the Commonwealth for any loss or damage which it might sustain by reason of the permittee violating the provisions of the act of assembly. The Commonwealth contends that the full amount of $10,000, the penal sum, is due and owing by defendants.

Discussion.

Section 8 of the Act of Assembly approved Peb. 19, 1926, P. L. 16, reads as follows: “Upon the filing of the application in the form herein provided, and upon the execution of a bond to the Commonwealth and a warrant of attorney to confess judgment in the penal sum of ten thousand dollars ($10,000), with surety to be approved by the board, which bond shall be conditioned for the faithful observance of all the laws of this Commonwealth relating to the manufacture, sale, offering for sale, bartering, furnishing, transporting, possessing, delivering within, or importing into, or exporting out of, this Commonwealth of intoxicating liquors, and the conditions of the permit, the board may grant to such applicant a permit to engage in the manufacturing, producing, distilling, developing, or using in the process of manufacturing, denaturing, redistilling, recovering, reusing, holding in bond, holding in storage as bailee for hire, selling at wholesale, and transporting for hire, of alcohol or alcoholic liquid.”

Section 17 of said act authorizes the Permit Board to promulgate appropriate rules and regulations, and article xvi, on page 21 of the rules and regulations adopted by said board, provides for the entering of bond and for the recovery of the amount stated. It is contended by the Commonwealth that under the act of assembly and the rules aforesaid, the Commonwealth is entitled to recover the full amount of said bond as a fixed penalty imposed by a sovereign state for a breach of the law. We agree with this contention.

“In statutory bonds, the designation by statute of a specific penalty has the effect of constituting a bond given in compliance therewith a covenant for liquidated damages or a penalty imposed by the sovereign power against which equity cannot relieve unless a different intent appears. An' opposite intent is evident when the bond is one of indemnity or security:” 4 Am. & Eng. Ency. (2nd) 700.

From an examination of the bond under consideration, it is evident that the same was not intended as one of indemnity or security. The bond in this case was intended to secure the payment of liquidated damages.

“Penalties and forfeitures are hot usually provided for by bond and security given in advance, yet this sum was in truth forfeited by Montell by reason of his violation of a duty imposed by the Act of Congress; it was a specific penalty upon the owner and master for the commission of a particular offense against the policy of the law, and, although the amount was secured by bond given for the performance of the duty, yet this duty was a part of the same policy with other duties mentioned in the act and for which other penalties are inflicted:” United States v. Montell, Taney’s Decision, U. S. 47 (26 Fed. Cases, 15798). And in the same case the opinion holds: “Besides, how could the United States prove any particular amount of damages to have been sustained by them in a suit on this bond? What do they lose? It would be difficult, I think, by any course of proof or any process of reasoning, to show that the United States had sustained any particular amount of damages in a case of this description, or to adopt any rule by which the damages could be measured by a jury, or be liquidated by agreement of the parties. The sum for which the parties are to become bound is manifestly a penalty- or forfeiture inflicted by a sovereign power for a breach of its laws. It is not a liquidated amount of damages due upon a contract, but a fixed and certain punishment for an offense, and it is not the less a penalty and a punishment because security is taken before the offense is committed in order to secure the payment of the fine if the law should be violated.”

We think the foregoing principle is applicable to the question before us, and as the Commonwealth has suffered no actual loss by reason of the violation of the permit, there could be no recovery for any amount if the bond in question is to be given the legal construction contended for by the petitioners. If such contention should be accepted as the law, then the provisions of the law requiring such bond to be filed would be meaningless and of no effect. Proceedings to open judgment are equitable proceedings, resting in the sound discretion of the court, and in Clark v. Barnard, 108 U. S. 436, the court says: “It has been uniformly held in cases too numerous for citation that courts of equity will not interfere in cases of forfeiture for the breach of covenants and conditions where there cannot be any just compensation decreed for breach. . . . Accordingly, where any penalty or forfeiture is imposed by a statute upon the doing or omission of a certain act, other courts of equity will not interfere to mitigate the penalty or forfeiture, if incurred, for it would be in contravention of the direct expression of legislative will:” Story’s Equity Jur., § 1326; Peachy v. Duke of Somerset, 1 Strange, 447, 453; Lightner v. Com., 31 Pa. 341.

“Surety companies who go upon bonds for a consideration are not entitled to the benefit of the rules of construction applicable to ordinary bonds of suretyship. Any doubtful language in such bonds will be construed most strongly against the surety and in favor of the indemnity which the assured had reasonable grounds to expect:” Philadelphia v. Fidelity and Deposit Co., 46 Pa. Superior Ct. 313; Mathews v. Sharp, 99 Pa. 560; Young v. American Bonding Co., 228 Pa. 373; Brown v. Title Guaranty and Surety Co., 232 Pa. Bonding Co., 228 Pa. 373; Brown v. Title Guaranty & Surety Co., 232 Pa. 337.

The defendants rely upon the case of the United States v. Zerbey et al., 271 U. S. 332, but in this case Mr. Justice Sanford, in his opinion, says: “The case now presented is not that of a bond executed to the Government in a specified penal sum prescribed by statute and intended as a fixed penalty imposed for breach of a statutory duty, which is forfeited in its full amount by a breach of the condition, irrespective of the actual damage thereby caused to the Government.”

Conclusion.

In arriving at our conclusion in the present case, we have kept in mind that line of demarcation which distinguishes the ordinary bonds of suretyship so common in ordinary business life, where the general tendency is to construe them as a penalty and where only actual damages can be recovered, and that other line of decisions, which holds that where a bond is given to a sovereign state for the doing or not doing of a particular act in the nature of a public duty and where the damages are impossible of liquidation. The intention of the parties to this proceeding, and the very nature of the case, clearly brings the bond in question within the class that are determined to be “liquidated damages” and not a penalty.

Decree.- — Now, therefore, upon due consideration, the rule in this case heretofore granted is hereby discharged.

Prom Robert W. Smith, Hollidaysburg, Pa.


author: Gest, J.,

text:
    Forst’s Adoption.

      N. S. Winnet and B. I. De Young, for petitioners.

      Cornelius C. O’Brien, contra.
    Nov. 22, 1929.
   Gest, J.,

We do not think it necessary to discuss the matters of pleading and practice referred to in the argument. The President Judge, who presided at the hearing of this petition, held two sessions of court, and all the material facts were brought out before him. Nor do we think, in view of all the testimony on the subject, that the question of the religious belief of the parties is at all controlling.

In this case, the parents of the boy, who was born in November, 1914, were divorced in 1924, and the petitioner, Alfred Lorenz, soon afterwards married Pauline Forst, the mother of the minor, and she naturally took the minor to live with her. Alfred Lorenz has, by a former marriage, a son of almost the same age as Howard Forst. Harry S. Forst, the father, remarried, and has issue by his second wife. He withholds his consent to the adoption of his son by the petitioner, and the question for us is whether, despite his objection, an adoption should be decreed. The Act of April 4, 1925, P. L. 127, which imposed this burden upon the Orphans’ Court, provides that the consent of the parent shall be necessary unless the parent has been adjudged a lunatic or habitual drunkard or has abandoned the child. Nothing is alleged against the character of Harry S. Forst, and the narrow question is whether he abandoned his son Howard within the meaning of the act of assembly.

The adoption of a minor child is a serious matter, for, by the decree, it is taken from the family of its parent and made a member of another, and, as the decree is practically irrevocable, it should not be entered in the face of objection by a natural parent without careful consideration. Abandonment is a matter of intention, .and that intention must be clearly proved as a necessary result from the facts of the ease. 'To abandon means, in general, to desert or forsake or to give up all claim to. In Winans v. Luppie, 47 N. J. Eq. 302, cited by Reed, J., in Denny’s Adoption, 11 D. & C. 611, the court said; “ ‘The statutory notion of abandonment does not necessarily, we think, imply that the parent had deserted the child or even ceased to feel any concern for its interests. It fairly may, and in. our judgment does, import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.’ ” The President Judge did not find in this case sufficient testimony to satisfy him that the father in this case had forfeited his parental rights. . On the contrary, he found that the father’s financial condition has been such that he has been unable to support his child, who, as we stated, is living with his mother. The father’s failure to support has, therefore, not been wilful, but due to circumstances beyond his control. It cannot possibly be argued that a poor man’s child can be adopted against his will by persons who happen to have more money and are able to bring up the child in greater luxury.'

On the record before us, we are clearly of opinion that the decree dismissing the petition for adoption was entirely proper. We think, however, that the petition should be dismissed without prejudice to the right of the petitioners to renew their petition at some appropriate time in the future, when the circumstances of the ease may have changed. With this modification, the exceptions to the decree are dismissed.


author: Martin, P. J.,

text:
    Woods v. Woods.

      R. P. Shick, for petitioner; F. J. Graham, contra.
    July 24, 1929.
   Martin, P. J.,

A libel in divorce was filed Dec. 14, 1927. On March 9, 1928, respondent was ordered to pay a counsel fee and $12 a week alimony. When the order was made, he was employed as a blacksmith. On April 13, 1929, he was forced to give up his employment, and alleges that he has been without means to pay the alimony since that date. It appears from the answer and depositions that libellant has abandoned the prosecution of the divorce proceedings and is treating the order for alimony as a support order. This is irregular. Libellant should make application to the Municipal Court for support.

The testimony is undisputed that respondent is unable at the present time to continue payment and that libellant has refused to prosecute the divorce proceeding. Further payment of alimony should not be required.

And now, to wit, July 24, 1929, the rule to show cause why the order for alimony pendente lite should not be vacated is made absolute, without prejudice to the right of libellant to renew the application for alimony if within a reasonable time she proceeds with her cause and produces proof of the ability of respondent to pay.


author: Gordon, Jr., J.,

text:
    McEvoy’s Case.

      Henry S. Drinker, Jr., for petitioners; Michael A. Foley, for respondent.
    Oct. 19, 1929.
   Gordon, Jr., J.,

This is a petition by the Committee of Censors of the Law Association of Philadelphia for the disbarment of the respondent, John S. McEvoy, Jr. Before presenting the petition, the Committee held a number of meetings, at which the respondent appeared and made answer to the charges against him. Certain findings of fact touching the professional conduct of the defendant were made by the Committee and presented to the court at the hearing of the rule. The respondent filed an answer, in which the charges of the Committee were denied, and the testimony was taken under the issues raised by the petition and answer. Before the conclusion of the hearings, however, the taking of testimony was brought to an end by the filing by the respondent of an amended answer, in which the charges of the Committee are sufficiently admitted to enable us to act without further testimony and without a detailed discussion of that already presented.

The charges consisted of allegations that, in various negligence cases, the respondent had forged the names of certain of his clients to releases, by means of which he settled the eases and acquired moneys as their attorney; that he had converted clients’ moneys to his own use, as evidenced by the fact that from time to time he was short in his attorney’s account.

The first paragraph of the amended answer reads as follows:

“1. That with respect to the disbursement of moneys collected by him for clients, he admits the allegations contained in the bill of complaint, in so far as they allege that at times subsequent to his collection of funds on behalf of clients he. would not have sufficient funds in bank with which to pay his clients.
“That this happened with respect to a number of cases cited by the Board of- Censors.
“That in each one of the cases a settlement was subsequently made with the client in full and that your petitioner did not intend to defraud or cheat any of his clients,”

The second paragraph of the amended answer relates to the forged signatures to the releases, already referred to, and reads as follows:

“2. Defendant admits that a large number of releases came into his office which, it later developed, were executed with a forged signature and none of which was within the personal knowledge, nor were any of the releases so forged by respondent.”

We do not*deem it necessary to make specific findings respecting the issues thus attempted to be raised by the answer.

With respect to the last paragraph quoted, it is true that the respondent denies having himself forged the signatures in question or knowing that they were forged. Under the evidence presented, however, it cannot be believed that forged releases, by means of which the respondent collected moneys for his clients, passed through his office without his knowledge, when the moneys procured by the delivery of the releases to the opposing parties came into his possession. A single instance will suffice to illustrate our thought in the matter. The respondent represented a man named Hill in a claim for damages for personal injuries, and, after negotiations with the opposing party, the respondent sent for his client and informed him that the case could be settled for $500. The client authorized the settlement and executed a release in that amount to be delivered to the defendant. A dispute as to the amount of fees to. be charged then arose between the respondent and his client, the respondent claiming 50 per cent, of the settlement, or $250. The client thereupon pointed out that his doctor’s bill, which he had paid, was $35, and said that he thought the respondent should bear that expense out of his half of the settlement. After some dispute over this question, the respondent finally agreed to bear this expense and to pay the client $285 instead of $250. The evidence showed that the respondent did not use the $500 release, which his client had executed, but settled the case for $550 by delivering to the defendant a forged release for the latter amount. The respondent concealed from his client the fact that he had made settlement for the higher amount and settled with him upon the basis of the lower sum, thus overreaching his client to the extent of $50.

From the foregoing facts there can be but one conclusion — that, whether the actual forgery was committed by the respondent or not, he so profited by it that he must have known of and been a party to it, as well as the fraud practiced upon his client. As to some of the other forgeries, concerning which evidence was presented, it does not clearly appear that the respondent finally profited financially from them, although it would seem that, in some instances, he deferred settling with his clients, after he had secured moneys for them, until the Committee of Censors had started investigating his conduct. That there appears to have been no ultimate loss to his clients, however, is but an incident in the consideration of this feature of the case. It is the repeated use in his practice of forged instruments that is the important consideration; and this practice was of such shocking frequency as to give rise to no other conclusion than that he was a party to and beneficiary of it.

The embezzlement feature of the charges against the respondent was supported by incontrovertible evidence and required the admission of guilt which he made in his amended answer. It scarcely needs to be stated that, in the handling of a client’s money, an attorney must keep it intact until delivered over, and one who temporarily uses it and is not at all times in a position to make immediate delivery of it commits an embezzlement. The mingling of the moneys of different clients in one attorney’s account is not, of course, objectionable. But there can be no excuse, except, perhaps, in the case of a bona fide mistake, for an attorney to be short for an instant in his trust account. The mere fact that he is solvent and ultimately is able to pay his clients in full does not excuse even a temporary use of such trust moneys. The repeated depletion of this attorney’s accounts below the demands to which he was answerable would compel the action that we must take in this case. It may be noted, in addition, that during the time which elapsed in the taking of testimony, and in the face of the warning involved in the charges being investigated by the court, the respondent was again shown to have become short in his attorney’s account. This defiant indifference to his obvious duty indicates in him a want of that sense of honor and high integrity without which the court cannot continue to hold him out to the public as worthy of trust and confidence.

As already indicated, our action follows inevitably upon the testimony and the respondent’s admissions in his amended answer. Accordingly, the petition of the Committee of Censors of the Law Association is granted, and we enter the following

Order.

And now, to wit, Oct. 19, 1929, John S. McEvoy, Jr., the above-named respondent, is hereby disbarred from his office of attorney in this court, and the prothonotary is directed to strike his name from the roll of attorneys and to give notice of this action to the Orphans’ Court of Philadelphia County and to the Supreme and Superior Courts of Pennsylvania.


author: Landis, P. J.,

text:
    Robbins v. Young et al.

      George T. Hambright and John E. Malone, for plaintiff and petition.

      William C. Behm and Charles W. Eaby, contra.
    Jan. 19, 1929.
   Landis, P. J.,

On Sept. 28, 1928, the plaintiff brought suit against the defendants in trespass, and the writ was served on Oct. 2, 1928. On Nov. 24,1928, Ruth C. Robbins presented her petition, alleging that Albert E. Robbins, Jr., had instituted the suit against the defendants to recover damages for injuries to his personal property caused by an automobile accident. She claims that she suffered severe personal injuries in the same accident, and, therefore, asks to be allowed to join in the action as a plaintiff.

Section 1 of the Act of May 8, 1895, P. L. 54, provides “that whenever injury, not resulting in death, shall be wrongly inflicted upon the person of the wife, and a right of action for such wrongful injury accrues to the wife and also to the husband, these two rights of action shall be redressed in only one suit brought in the names of the husband and the wife.” Section 2 declares that “either the husband or the wife may waive his or her right of action, and his or her failure to join in the suit within twenty days after service of a rule to join or be barred shall be conclusive evidence of such waiver; but if both join in the suit, separate verdicts shall be rendered, one verdict determining the right of the wife and the other verdict determining the right of the hus-t band, and separate judgments shall be entered thereon with the right to separate executions. The rule herein referred to may be entered by the court of its own motion.” The purpose of the act is to save the costs of two actions where husband and wife are concerned in the same cause of action.

But in this case the plaintiff, the husband, brought suit to recover damages for injuries to his personal property caused by an automobile accident, and not for any loss occasioned to him by reason of his wife's injury. The wife had no interest in this suit. Why, then, she should be made party to it, I cannot see. She can bring suit in her own name for her injuries and he can join in that suit to the extent of his interest.

•The present proceeding is, in my judgment, unsustainable. In Bradley v. Albright, 1 Wash. Co. Repr. 199, it was held that a joint action by husband and wife cannot be maintained by them jointly where no injury is shown to have been suffered by them jointly.

I am of the opinion that this rule should be discharged. Rule discharged.

Prom George Ross Eshleman, Lancaster, Fa.


author: Schnader, Special Dep. Att’y-Gen.,

text:
    State Industrial Home for Women.
    May 7, 1929.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised whether the court which sentences a woman to the State Industrial Home for Women at Muncy has the right to release her on parole without consulting the board of trustees of the home.

The Act of June 19, 1911, P. L. 1055, which confers upon judges of Courts of Quarter Sessions and of Oyer and Terminer the right to parole prisoners, is limited in its scope to convicts “confined in the county jail or workhouse of theif respective districts.” This act has never been amended so as to confer upon judges of Quarter Sessions or of Oyer and Terminer the right to parole inmates of State institutions.

In addition, section 19 of the Act of July 25, 1913, P. L. 1311, specifically confers upon the Board of Trustees of the State Industrial Home for Women the right to parole inmates. In our judgment, the power of parole granted-to the board by section 19 confers upon the board an exclusive power. No other agency has any right to parole any1 inmate of the home.

Accordingly, we advise you- that the- courts which sentence women to the State Industrial' Home for Women do not have any power to parole them, either-with or without the consent of the board of trustees of the home. Any order of parolé issued by a judge is, in our opinion, void and should not be recognized by the'board of trustees of the home.'

Prom C. P. Addams; Harrisburg, Pas