author: Lloyd, J.,

text:
    In re Grant.

      Knight, Tagga/rt, Klein & Reich, for petitioners.

      Cloyd Steininger, for respondent.
    April 14, 1930.
   Lloyd, J.,

Upon the petition of George E. Grant and Mary A. Grant, his wife, a rule issued on Amy E. Grant, administratrix of Charles H. Grant, to show cause why the court should not make an order certifying that a certain mortgage should be marked satisfied by the register and recorder, upon the payment of the proper costs of satisfaction. An answer, responsive to the petition, was filed. Testimony on behalf of both the petitioners and respondent was received.

Prom the pleadings and the evidence we make the following

Findings of fact.

1. That on March 6, 1922, George E. Grant and Mary A. Grant, the petitioners, made, executed and delivered to Charles H. Grant, of the Borough of Northumberland, their bond and mortgage to secure the payment of $2000, covering a property situate at the corner of Second and Race Streets, in the City of Sunbury, Pennsylvania, and being fully and particularly described in the said mortgage.

2. That in the year 1925 the said Charles H. Grant signed and sealed the following endorsement upon the mortgage:

“In the event of my death, I direct that this mortgage which I hold against my brother, Geo. E. Grant, for his Race Street property shall be satisfied.

“(Seal) Witnesses

“C. H. Grant James W. Scott.

Chas. A. Dent.”

3. That the signature of Charles H. Grant on the said endorsement was actually witnessed by Charles A. Dent, who, at the request of Charles H. Grant, signed his name as a witness thereto.

4. That James W. Scott also, at the request of Charles H. Grant, became a witness to his signature.

5. That subsequently to said endorsement, but in the year 1925, the following endorsement at the request of Charles H. Grant was also added:

“In the event of the death of Charles H. Grant, we hereby forfeit any claim that we might have in this mortgage.

“(Seal) Elizabeth D. Grant Witnesses

“(Seal) Annie Grant Clinton D. Geist

“(Seal) Edith G. Dev/art John P. Shindel.”

6. That Elizabeth D. Grant, Annie Grant and Edith G. Dewart, sisters of Charles H. Grant, signed and sealed the latter endorsement at his request.

7. That at the time when the latter endorsement was signed Charles H. Grant said “that he wanted George -to be free of anything of that kind when he passed out;” “I don’t want to make George any trouble or for him to have any trouble after I pass away.”

8. That immediately following the latter endorsement Charles H. Grant handed the mortgage to George E. Grant.

9. That the debt secured by the mortgage was not discharged by the actual payment of money.

10. That the said mortgage has been in the possession of George E. Grant since it was delivered to him in 1925 by Charles H. Grant.

11. That Charles H. Grant died intestate June 19, 1929.

12. That on July 2, 1929, letters of administration were duly granted to Amy E. Grant as administratrix.

Discussion.

This is a proceeding under the Act of April 11, 1856, P. L. 304, which stipulates:

“That hereafter in all cases where the amount due on any mortgage or judgment entered of record, together with interest and cost, shall have been paid to the legal holder or holders thereof, and the judgment bond, or note, or mortgage, together with the accompanying bonds, if any, duly endorsed in the presence of two witnesses, that the same are satisfied and discharged, shall be produced to the prothonotary or recorder having charge of the records of such mortgages and judgments respectively, it shall be the duty of such officer, for the fee of seventy-five cents in the case of a mortgage and twenty-five cents in the case of a judgment, to enter satisfaction on the record of such liens, and to file among the papers in their respective offices the judgment, notes, bills, mortgages and bonds respectively, which shall remain filed thereafter, for the benefit of all parties interested therein: Provided, that no such satisfaction shall be entered until after a certificate from the president judge or the district judge of the proper county, allowing the same, which certificate shall also be produced and filed with the papers as aforesaid.”

The respondent originally contended that this legislation does not. contemplate the satisfaction of a mortgage when the payment thereof is founded upon a gift, and, second, that the endorsement on the mortgage did not constitute a payment thereof, in that it failed to meet the requirements of a gift inter vivos. The first contention has been abandoned, and thus the issue is narrowed to a determination of the second contention.

The precise question to be determined is whether the delivery of the mortgage under the circumstances here shown is sufficient to establish a gift inter vivos. The following eases are illustrative of the requirements and the nature of the proof:

In Kaufmann’s Estate, 281 Pa. 531-533, the court held:

“ ‘To make a valid gift inter vivos there must be a clear, satisfactory and unmistakable intention of the giver to part with and surrender dominion over the subject of the gift, with an intention to invest the donee with the right of disposition beyond recall, accompanied by an irrevocable delivery:’ Packer v. Clemson, 269 Pa. 1, 3. The absolute control must be vested in the donee (Maxler v. Hawk, 233 Pa. 316; Ashman’s Estate, 223 Pa. 543), and if all dominion is not divested, the proposed gift is incomplete: Walsh’s Estate, 122 Pa. 177. There is no presumption of any intention to give (McConville v. Ingham, 268 Pa. 507), and the purpose to do so, followed by an actual or constructive delivery, must be shown (Yeager’s Estate, 273 Pa. 359), and the burden of proving both of the necessary elements rests on the alleged donee: Maxler v. Hawk, supra; King v. King, 273 Pa. 351. The quantum, of testimony required is not, however, so great where, as here, the relation of parent and child exists: Northern Trust Co. v. Huber, 274 Pa. 329; Yeager’s Estate, supra. In any case, if the transfer is shown to be complete and the holding is alleged to be on condition, the burden then shifts to the one so asserting: Crosetti’s Estate, 211 Pa. 490. Mere admissions of a transfer, or declarations by a donor of an intent to do so, are not necessarily sufficient: Leitch v. Diamond National Bank, 234 Pa. 557; Wise’s Estate, 182 Pa. 168; Herr’s Appeal, 5 W. & S. 494; 28 Corpus Juris, 681. Once the gift has been legally established, the mere fact that access to the box, at the place of deposit, is given the former owner will not change the character of the transaction: Reese v. Phila. T., S. D. & I. Co., 218 Pa. 150; Cooper’s Estate, 263 Pa. 37; Beaumont v. Beaumont, 152 Fed. Repr. 55.

“Prior to complete surrender, the donor may alter his intention and retake the subject-matter of the gift into his own possession (Cooper’s Estate, supra), or, thereafter, the donee may return it, thus releasing any right of ownership: Myers’s Estate, 248 Pa. 76. In the instant case, the notes and stocks were admittedly at one time owned by the father and were found in his possession at the time of death. In law there is a presumption of the continuance of conditions once shown to exist, and the ownership of property proven to be in one is supposed to remain there until the contrary is made to appear: McConville v. Ingham, supra; Hartman v. Pittsburgh I. P. Co., 11 Pa. Superior Ct. 438. As a result, if the possession of the property is found in the hands of the donor, the law will assume he retained title: Campbell’s Estate, 7 Pa. 100; Reading Trust Co. v. Thompson, 254 Pa. 333. Likewise, if the donee has the possession of property, delivered without proof of explanatory words limiting his interest, a transfer of ownership is to be understood: Yeager’s Estate, supra; Northern Trust Co. v. Huber, supra.

‘One in possession of property is presumed to be the owner of it. As making more definite and significant the nature of the person’s custody or occupation, and as giving it the significance of an exclusive control and of a possession in the fullest sense, the acts and declarations of claim of title by the occupant may be decisive, and should, therefore, be considered for that purpose, without, however, conceding to them any force as hearsay assertions:’ 3 Wigmore on Evidence (2nd ed.), § 1779, page 799. ‘The act of delivery or receipt may be in itself entirely ambiguous, if not meaningless. To make the act intelligible, to give it point and certainty, to indicate with clearness its legal consequences, it is quite necessary to know with what animus the act is done. Where, therefore, . . . negotiable or written instruments or the like are shown to have been delivered or received, an extra-judicial statement showing the intent or intention with which the act is done is also regarded as admissible. . . . The existence of a previous mental state to an effect different from that with which it is claimed a given delivery was made may be an independently relevant fact and be shown by the extra-judicial declarations of the grantor:’ 4 Chamberlayne on Evidence, § 2664.

“Self-serving statements are ordinarily not receivable to establish title in the one making them, unless in the presence of the adverse party: Wonsetler v. Wonsetler, 23 Pa. Superior Ct. 321. The previous declarations, which indicate an intent to give, or the lack of such purpose, are receivable in evidence: Campbell’s Estate, 274 Pa. 546; Sherman v. Stoner, 78 Pa. Superior Ct. 189. And where the party is in actual possession, his statements are admissible to show title to the property in him: Scheid v. Storch, 271 Pa. 496. Such evidence has been considered in a number of cases which have come before us where the question of a possible gift has been involved.”

In Hafer v. McKelvey, 23 Pa. Superior Ct. 202, 204, it was said:

“While a gift needs no consideration to support it, yet the conditions surrounding the donor and donee are frequently cited to interpret the intention of the parties, and if they are competent to give and competent to receive and the transaction is completed by a voluntary transfer of possession, it is regarded by the law as an executed contract. See Pryor v. Morgan, 170 Pa. 568. ... To make a valid gift there must have been not only an intention to make it but to do so at the time and not in the future, and it must be accompanied by an actual or constructive delivery to the donee by which the donor released all dominion over the property and invested the donee with full title to and control over the same. Without a complete delivery there can be no valid gift inter vivos, though every step be taken that is essential to the validity of the gift; if there is no delivery, the gift must fail. Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite without which the gift fails, regardless of consequences, and the test of delivery is the change of property, the immediate right to the entire dominion over the subject of the gift, a perfect title which is as good against the donor as anyone else.”

The sufficiency of the delivery of the mortgage to the petitioner, George E. Grant, cannot be questioned. It was actually placed in his hands by the mortgagor, Charles H. Grant, and possession thereof retained until the present time. What, then, was the intention of the donor in thus presenting to and delivering possession of the mortgage to the donee and what was the extent of the gift, if any, he intended to make? Clearly, to fulfill the purpose indicated by his statement when he said in the presence of his sisters at the time of the delivery of the mortgage that he wanted “to make a gift of this mortgage to his brother George;” “that he wanted George to be free of anything of that kind when he passed out;” “I don’t want to make George any trouble or have him to have any trouble after I pass away.” That he intended to vest absolute control of the mortgage in the donee is evidenced by the fact that he also requested his sisters, whom he doubtless felt might have an interest therein, to waive all their claim by an appropriate endorsement thereon. Adding to this the strength to be derived by his own endorsement and delivery, there can be no question concerning the legal effect of the transaction. We have a clearly expressed purpose to make a present gift, followed by a sufficient delivery. The legal requirements are met, and upon this showing the gift would have to be sustained and the inquiry could well end here but for the argument of the respondent that the phrase “in the event of my death,” as contained in the endorsement of Charles H. Grant, impresses such a condition on the transfer as to destroy its irrevocability and is thus effective to prevent its operation as a gift inter vivos. The decisions do not so hold. The phrase imposed' no condition. Its only effect was to postpone the day of satisfaction. The authorities are numerous, but the following citations are sufficient to show the futility of the argument.

In Wagoner’s Estate, 174 Pa. 558, the court, in discussing a similar contention, said:

“But did the contingency that the gift was not to take effect except in case of the survivorship of the niece render it void? . . . The delivery to the trustee for purposes of the trust was absolute; if the niece survived him, the bond was to be delivered to her; if the remote contingency that the aged uncle survived the niece happened, doubtless it was his secret intention, if that contingency occurred to him, the bond should be redelivered to him; but he annexed no such reservation to the trust; he retained no such control or dominion over it in the meantine; the death of either determined only the duty of the trustee. . . . The delivery to him [Skiles] was a good delivery to her. . . . ‘Where the future delivery is to depend upon the payment of money or the performance of some other condition, it will be deemed an escrow. Where it is merely to await the lapse of time or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently. . . .’ We are clearly of the opinion that . . . the enjoyment of the subject [of the gift] having passed completely out of his [the donor’s] control, that control could only be resumed by him on the happening of the same contingency.”

In Mack’s Appeal, 68 Pa. 231, the court held:

“A man may give a present bond to pay a sum of money at his death, and a delivery of it to the obligee renders it perfect as a present obligation though payable at a subsequent, whether a fixed or an uncertain, period to be after-wards ascertained and made certain. It is strictly debitum in presentí solvendum in futuro, and is as irrevocable as any other obligation under seal, which in law imports consideration.”

The case of Collins v. Central Trust Co., 231 N. Y. Supp. 251, although of foreign jurisdiction, is in point. In that case it appears that a bond and mortgage had been delivered by the mortgagee to the mortgagor in the presence of a witness. At the time of the delivery the mortgagee gave to the mortgagor a receipt for the amount of the mortgage, the said receipt containing the words “legal only at my death.” The mortgagee died and an action was brought to compel the discharge of the mortgage. The mortgagor claimed the transaction was a valid gift, while the executor contended that it was testamentary in character and, hence, void. The court, in discussing the contention, said:

“It seems to me that decedent intended to give this debt to the plaintiff, and that he did everything necessary to do this is beyond contradiction. It was not necessary to discharge the mortgage in order to extinguish the debt. . . . There can be no doubt that he desired to refrain from discharging the mortgage of record until some future time, and, equally without doubt, he had this in mind when he added the words, ‘Legal only at my death,’ to the receipt just below his signature. As above suggested, the receipt, no matter what its contents, was not essential to the forgiving of the debt, nor did it in my mind impose such a condition as to make the transaction testamentary, as claimed. . . . The intent of the testator was to forgive the debt, extinguish it, and resolve it solely in favor of the plaintiff at the time that he delivered the bond to her. The purpose of the receipt was doubtless to confirm and make stronger the delivery of the bond; and the words endorsed under the decedent’s name in no way modified or made void the clear and unequivocal intent and meaning of the words above it, or the words and acts of the transaction connected with the delivery of the bond, but were doubtless intended by the decedent to provide only for the deferring of the formal discharge of the mortgage. ... In such case, a direction or covenant to delay entering the discharge of the security could not keep the debt alive and would be of no legal effect.”

Of like effect is the case of Funston v. Twining, 202 Pa. 88:

“Where one person gives to another the principal of a mortgage debt, and delivers at the same time the bond and mortgage securing the debt, the gift is not rendered invalid by the fact that the donor says to the donee at the time of the delivery of the papers, ‘All I ask is that you pay me four per cent, interest while I live, and then it is yours when I die.’ ”

It is thus apparent that the phrase used in the endorsement was not effective to destroy the irrevocability of the gift nor to render the gift, otherwise valid, invalid.

From the facts as found we arrive at the following

Conclusions of law.

1. That Charles H. Grant made a valid gift of the said mortgage to George E. Grant and Mary A. Grant, his wife.

2. That the principal debt secured by the said bond and mortgage was paid and duly discharged.

3. That the said Charles H. Grant has duly endorsed the said mortgage to be satisfied in the presence of two witnesses.

4. That satisfaction of the present mortgage is such as is contemplated by the said Act of April 11,1856, P. L. 304, and the requirements thereof having been met, a satisfaction should be entered by the recorder subject to the payment of proper fees.

5. That the certificate of the court allowing the said satisfaction should issue to the recorder.

Decree.

And now, April 14, 1930, it is hereby adjudged, declared and decreed that the certificate of this court shall and does herewith issue to the Recorder of Deeds and Mortgages in and for the County of Northumberland, allowing a satisfaction of the mortgage of George E. Grant and Mary A. Grant, his wife, to Charles H. Grant, dated March 6, 1922, to secure the payment of $2000, covering the following described premises:

All that certain lot or piece of ground, situate in the City of Sunbury, County of Northumberland and State of Pennsylvania, bounded and described as follows, to wit:

Beginning at the northeast corner of Second and Race Streets in said city; thence northward along the eastern side of Second Street a distance of seventy-five (75) feet to a point; thence eastward along the division line between lots number four and five in Greenough’s Addition a distance of forty-five (45) feet to a point; thence southward at right angles to Race Street a distance of seventy-five (75) feet to the northern side of Race Street; thence westward along the northern side of Race Street a distance of forty-five (45) feet to the place of beginning, being the western portion of lots number five (5), six (6) and seven (7) in said addition, whereon is erected a frame dwelling house. Being a part of the same premises which Marcy C. Greenough and Eben W. Greenough conveyed unto the said George E. Grant by deed dated Feb. 9th, and recorded in Northumberland County in Deed Book No. 132, page 64, and by deed dated May 4, 1896, and recorded in Deed Book No. 132, page 63, and by deed dated Feb. 10, 1898, and recorded in Deed Book No. 133, page 132, and recorded on March 10, 1922, in Mortgage Book 108, page 111, upon the payment to him of a fee of seventy-five cents.

An exception is noted and a bill sealed for the respondent.

Prom C. M. Clement, Sunbury, Pa.


source: Caselaw Access Project

author: Landis, P. J.,

license: Public Domain

text:
    Sweigart v. Shreiner.

      George T. Hcmbright and John E. Malone, for plaintiff.

      Charles W. Eaby, for defendant.
    April 19, 1930.
   Landis, P. J.,

On or about April 25, 1928, the plaintiff entered into a written agreement with the defendant, who was trading as the Garden Spot Sight-Seeing Bureau, in the following words:

“I hereby accept one passage to California and The National Parks south to San Diego and north to Seattle and Vancouver, B. C., Grand Canyon, Yosemite, Mt. Rainier, Yellowstone, Colorado Springs.

“Time required: 65 days. Approximate No. of miles to be covered: Ten thousand.

“Price per person: $900.00 double.

“It is understood that: All meals and lodging, boat rides and side trips to be included in the contract price above mentioned, of which about ten per cent, will be paid on the signing of this contract and the balance before starting of this tour. Porter and waiter tipping is not included.

“It is hereby agreed: That in case of sickness or for any unforeseen reason the tour would not be started the deposit money will be refunded in full.”

The 10 per cent., or $90, was paid by the plaintiff on the execution of the agreement, and the balance of $810 was paid before the starting of the tour. The tour started, according to an itinerary furnished, on Monday, June 4, 1928, and while there is some complaint made in the statement concerning the defendant’s failure on certain occasions to furnish accommodations said to have been covered by a parol contemporaneous agreement, no claim for damages is made in this suit for such failure, and so we may pass all such matters by without further comment.

However, on July 29, 1928, the motor bus of the defendant in which they were traveling broke down about three miles east of Big Springs, Nebraska, and it is alleged that the defendant did not complete the last nine days of the trip; that, therefore, the plaintiff was compelled to expend $42.10 for autobus fare, $4 for a hotel room, and $10 for meals in returning from Big Springs, Nebraska, to Lancaster, Pennsylvania. She claims for the nine days at $13.85 a day, or $124.65, and about what she paid out.

The defendant has filed an affidavit of defense in which he claims the plaintiff has shown no cause of action. I cannot see on what ground that claim can at the present time be supported. If the defendant made a contract and did not fulfill it, he certainly is liable for whatever loss the plaintiff sustained by reason of such default. We are not anticipating what the proof will be on the trial, but are resting solely on the allegations set forth in the statement, which must now be assumed as susceptible of legal proof.

“A passenger, in the legal sense of the word, is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare or that which is accepted as an equivalent therefor:” Pennsylvania R. R. Co. v. Price, 96 Pa. 256. “The relation of carrier and passenger commences when one puts himself in the care of the carrier, or directly within its control, with the bona fide intention of becoming a passenger, and is accepted as such by the carrier, as where he makes a contract for transportation and presents himself at the proper place and in a proper manner to be transported:” 10 Corpus Juris, 611, 612. “The relation of carrier and passenger having been constituted, continue until the journey, expressly or impliedly contracted for, has been concluded, and the passenger has left the carrier’s premises, unless the relation is sooner terminated by the voluntary act of the passenger:” 10 Corpus Juris, 623, 624. “Where a person purchases a ticket for passage on a train or car, the company assumes the relation of common carrier toward him, and thereby assumes to perform all the duties of such carrier, and it is immaterial, so far as its liability for injuries is concerned, whether these duties arise by express stipulation or by a contract which necessarily involves their observance. Unless performance is waived, it is the duty of the carrier to transport a passenger according to the terms of his contract, and if it fails so to transport him, and is not prevented from so doing by an act of God, or of the public enemy, or by the passenger’s own conduct, there is a breach of contract for which the carrier is liable in damages:” 10 Corpus Juris, 798, 799. It is also said that “where the continuity of the journey is interrupted by misfortune or accident without fault on the part of the passenger, he is entitled to continue his journey by another train:” 10 Corpus Juris, 809.

In Railroad Co. v. Aspell, 23 Pa. 147, our Supreme Court said: “A passenger who has been negligently carried beyond a station where he intended to stop and where he had a right to be let off may recover compensation for the inconvenience, loss of time and labor of traveling back;” and in Englehaupt v. Erie R. R. Co., 209 Pa. 182, that “it is the duty of a carrier of passengers not only to exercise the strictest vigilance in receiving and conveying a passenger to his destination, but also to set him down safely at a station at the termination of his journey.” See, also, Brooks v. Phila. & Reading Ry. Co., 218 Pa. 1; Walthour v. Pennsylvania R. R. Co., 40 Pa. Superior Ct. 252.

The question as to the parol modification of a written contract is not at present involved. It may come into the case, but not at this time. It will not be doubted that, under some circumstances, such proof can be presented before a jury, and it is now assumed to be susceptible of proof.

We, therefore, decide the point of law raised in favor of the plaintiff and order the defendant to file a supplemental affidavit of defense to the merits of the case within fifteen days of the filing of this opinion.

Point of law decided in favor of plaintiff.

From George Ross Eshleman, Lancaster, Pa.


author: Fleming, P. J.,

text:
    McCloskey v. Sykes.

      S. D. Gettig (with him John J. Bower), for petition.

      J. M. Keichline, J. K. Johnston and Philip H. Johnston, contra.
    April 16, 1930.
   Fleming, P. J.,

The plaintiff brought an action in assumpsit before John M. Keichline, a justice of the peace, on Aug. 27, 1928, and the justice on that day issued a summons to Robert McCloskey, a constable of this county, returnable Sept. 3, 1928, at 11 o’clock A. M.

The constable made a return that he had served such summons “upon Fred Rogers, contractor and agent for Frank Sykes, the within named defendant, by handing a true and attested copy to the defendant, Fred Rogers, contractor and agent for Frank Sykes, to him personally.”

On Sept. 3, 1928, both Fred Rogers and Frank Sykes appeared before the justice and, after hearing, the justice gave public notice that a decision would be rendered on Sept. 8, 1928, at 11 o’clock A. M.

On Sept. 8, 1928, at 11 o’clock A. M., pursuant to notice previously given, the justice publicly entered judgment in favor of plaintiff and against the defendant in the sum of $279 and costs of suit.

On Sept. 21, 1928, an execution was issued to James H. Riñe, a constable of this county, which execution was returned “no goods.”

On Oct. 29, 1928, the transcript of the justice was filed in this court and testatum fi. fa. forthwith issued to the Sheriff of Clinton County, whereupon Frank Sykes, on Jan. 21, 1929, presented his petition to this court for a rule upon plaintiff to show cause why execution should not be stayed, the judgment opened and the defendant let into a defense. Such rule issued, returnable Feb. 18, 1929. On the return qf the rule, defendant’s attorney appeared in open court and stated to the court that it was the defendant’s desire to abandon his petition, whereupon the rule was forthwith discharged.

On July 8,1929, a further petition was presented on the part of the defendant, praying for a reinstatement of the rule to open judgment. This is the matter before us at this time.

This question is clearly decided in Taylor v. Tudor & Free, 81 Pa. Superior Ct. 306, wherein it is held that “it has been the law in this state for many years that a judgment entered upon a transcript from a justice of the peace cannot be set aside, if regular upon its face, or opened and defendant let into a defense, in the Court of Common Pleas: Lacock v. White, 19 Pa. 495; Boyd v. Miller, 52 Pa. 431; Clark v. M’Comman, 7 W. & S. 469.”

An examination of the record of the justice shows but one point wherein the regularity of the proceeding might be questioned. This is in the manner of service of the summons upon Frank Sykes. This irregularity, however, was cured by the appearance of Mr. Sykes at the hearing, which appearance he does not deny. A summons was issued, returnable as provided by law,' irregular service waived by the appearance of Mr. Sykes on the day and hour named in such summons, a hearing at the day and hour named therein, due taking of testimony to support plaintiff’s claim and a judgment publicly rendered, after adjournment and proper notice, for $279 and costs.

In Holly v. Travis, 267 Pa. 136, it is held that the regularity of a justice’s record cannot be attacked by evidence dehors the record, even on certiorari; what right, then, could exist to open the judgment in the instant case?

We do not think the Court of Common Pleas of Centre County has any authority or jurisdiction to grant the prayer of the petitioner to open judgment obtained before the justice of the peace in this case.

And now, April 16, 1930, the rule heretofore granted requiring plaintiff to show cause why the said judgment should not be opened is discharged, at the cost of the petitioner.


author: Whitten, J.

text:
    Pregrad v. Ocean Coal Company.

      Bauer & Copeland, for plaintiffs; Smith, Best & Horn, for defendant.
   Whitten, J.

In their statement of claim, the plaintiffs aver that on May 31, 1924, they acquired title to a certain tract of land upon which is erected a building used as a residence and as a store, and that since the date above mentioned they have used the said property as a residence and as a store for the sale of general merchandise; that the defendant owns a coal mine nearby, and that in the operation thereof the defendant has been dumping upon its land adjacent thereto slate and other material near to the property of the plaintiffs; that the defendant has also dumped much rubbish at or near said “slate dump;” that the said slate dump and said rubbish have been burning for about two years prior to the bringing of this suit, thereby causing smoke, dust, fumes and gases to arise therefrom, which are and have been blown “onto” and upon the property of the plaintiffs, thereby injuring the plaintiffs’ house and garden, rendering said house and store unfit for use and injuring the health of the plaintiffs and their family; that ‘‘all the injury and damage set forth above was caused by the willful aets> of the defendant in dumping and burning said slate and rubbish, and the failure of the defendant to control said dumping and burning;” and claiming punitive and compensatory damages in the sum of $10,000.

The testimony is undisputed that the defendant owned a tract of coal lands and that in mining and removing coal therefrom large quantities of slate and rock from the said mine were necessarily brought to the surface and wasted upon lands nearby; that prior to the purchase by the plaintiffs of the house and lot in question, the defendant in the ordinary development of its mine had deposited large quantities of slate and rock upon land owned by it, which “slate dump” was then burning by reason of spontaneous combustion and continued to bum until after this suit was brought; and that there is no known method by which such fires can be extinguished. There was no proof that the fire in the said “slate dump” was the result of negligence on the part of the defendant.

In other words, there was no proof (a) that the defendant was negligent in depositing rock and slate necessarily removed from its mine upon the surface of its own land; or (b) that the fire which originated in the “slate dump” was due to any negligence on the part of the defendant; or (a) that the failure of the defendant to extinguish the said fire constituted negligence on the part of the defendant.

In view of the undisputed proof, the court instructed the jury that the plaintiffs were not entitled to recover damages by reason of the acts or omissions of the defendant in relation to the “slate dump,” for the reason that the plaintiffs failed to prove that the injuries complained of were caused by negligence on the part of the defendant.

In their motion for a new trial, plaintiffs’ learned counsel allege in support of said motion:

“5. That the court erred in instructing the jury that negligence was the basis of the right of the plaintiffs to recover.

“6. The court erred in instructing the jury that the burden was on the plaintiffs of showing negligence on the part of the defendant.”

Indeed, plaintiffs’ learned counsel — not denying the plaintiffs’ failure to prove that the fumes emanating from the burning “slate dump” were caused by negligence on the part of the defendant — earnestly contend in their motion for a new trial that the basis of plaintiffs’ right to recover damages was not negligence on the part of the defendant, but that the basis of the plaintiffs’ claim was defendant’s “willful acts ... in dumping and burning said slate and rubbish, and the failure of the defendant to control said dumping and burning . . . without any regard for the rights and property of the plaintiffs.”

However, as above stated, there was no proof that the defendant was responsible for the burning of the said rock and slate, and the proofs were uneontradicted that there is no known method whereby such a fire may he extinguished. Therefore, upon the plaintiffs’ theory of the case, there was no proof to sustain a verdict by reason of the fumes emanating from the burning of the rock and slate necessarily taken from the defendant’s mine and cast upon its own land. However, the manufacture of coke or of iron or steel is not a natural and necessary use of one’s property.

In the absence of proof of negligence, an owner of property is not responsible for injuries to another, which injuries are the natural and necessary result of the development of its own land by such owner: Campbell v. Bessemer Coke Co., 23 Pa. Superior Ct. 374, 380.

The duty rested on the defendant of using the most effective known means and appliances to prevent the fumes from its “slate dump” from injuring the properties of others nearby.

Where the injury to the plaintiff results from the natural and lawful use of the land of the defendant itself and is the necessary result of mining operations and the preparation of the coal for market, the injury thus resulting to another in the neighborhood is damnum, absque injuria: Conti v. New Castle Lime & Stone Co., 94 Pa. Superior Ct. 321, 325.

“So long as a mining company carries on its business in the ordinary way and adopts and uses the precautions usually and customarily prevailing in the operation of such plants, it is not accountable for the incidental annoyances and damages that necessarily follow its mining operations:” Alexander v. Wilkes-Barre Anthracite Coal Co., 254 Pa. 1.

In the above case, the Supreme Court (page 5) said: “In connection with the mining of anthracite coal the erection and use of breakers, washeries, fans, and other machinery is a necessary and usual incident in the operation of such mines and a certain amount of noise and dust will necessarily result from carrying on the business and must be expected and endured by persons who take up their residence in a neighborhood devoted to such industries. Defendant’s business is a lawful one, consisting of the development of the natural resources of the land, in which the interests of the entire community are concerned and for which large expenditures have been made; and so long as defendant carries on its business in the ordinary way and adopts and uses the precautions usually and customarily prevailing in the operation of such plants, as has been done in this case, it is not accountable for incidental annoyances and damages that necessarily follow its mining operations.”

“While a mining company has the right not only to mine its coal but also to prepare it for market, it must, in preparing the coal, use the most effective known means and appliances to prevent the dust generated in breaking and separating the coal from being borne and scattered by the winds over and upon adjoining and nearby properties so as to prevent injury to such properties.

“If the company uses the most effective and approved known appliances to control the dust and some of the dust still escapes, the company is not responsible for the injurious results:” Harvey v. Susquehanna Coal Co., 201 Pa. 63.

In the above case, the Supreme Court (page 68) said: “The appellant has the right not only to mine its coal but to prepare it for the market. In so preparing it by artificial means, volumes of dust necessarily arise, which, if not controlled, as far as possible, by proper appliances and the exercise of proper care, will be borne and scattered by the winds over and upon adjoining and nearby properties and injuries to the same must result. If such injuries can be avoided by the most effective and approved means known of controlling coal dust, it is the duty of the appellant to adopt them. The maxim “sie utere tuo ut alienum non laedas,” as applied to this coal company, does not mean that it cannot prepare its coal for market, but that, in so preparing the same, due regard must be had for the rights of others by controlling, as far as possible, through the most effective known means, the dus't generated in breaking and separating the coal.”

See, also, Elder v. Lykens Valley Coal Co., 157 Pa. 490; Campbell v. Brandywine Co., 52 Pa. Superior Ct. 511.

The instant ease belongs to the same class as Harvey v. Coal Co., 201 Pa. 63, Alexander v. Wilkes-Barre Anthracite Coal Co., 254 Pa. 1, and kindred cases, where the injury complained of resulted from the “natural and lawful use of the land of the defendant itself and was the necessary result of mining operations and the preparation of the product of the mine for market.” In such cases, the injury to the owner of lands in the vicinity is damnum absque injuria — in the absence of proof that such injury was the result of the defendant’s negligence — and where, as here, it affirmatively appears that there is no known method whereby the injury could have been averted.

At the conclusion of the charge to the jury, the court inquired of counsel whether any matter had been omitted or misstated, and plaintiffs’ counsel replied that the court had inadvertently stated that the curtains were replaced every two months instead of every month, and the court told the jury to examine the proofs on that question and to decide the matter in accordance with the proofs.

It now appears that before the jury retired plaintiffs’ counsel dictated to the stenographer an exception to the effect that the court erred in charging the jury that “negligence is the basis of this action and that the burden is on the plaintiffs to prove negligence.”

However, the said exception was not dictated in the hearing of the court, nor was the attention of the court called thereto until after the verdict was rendered. In fact, the trial judge had no knowledge of this exception until the argument of plaintiffs’ motion for a new trial. This oversight on the part of plaintiffs’ counsel was not intentional and no criticism is intended on that account. However, for reasons hereinafter stated, the plaintiff suffered no injury thereby.

In their written brief in support of their motion for a new trial, plaintiffs’ learned counsel frankly state the issue as follows: “The statement of claim sets forth the dumping of coal and other materials by the defendant and the burning of this dump, and then alleges that the smoke, dirt, dust, fumes and gases are blown from this fire across plaintiffs’ property, causing certain damage. No element of negligence, that is, carelessness on the part of the defendant in burning the slate or gob from the mine, is alleged by the plaintiffs or shown by the testimony.”

True, in their statement of claim, the plaintiffs do not employ the term “negligence” in describing the cause of plaintiffs’ alleged injury. However, at the trial — in view of the 9th paragraph of the plaintiffs’ statement of claim, wherein it is alleged that the plaintiffs’ injuries were caused by certain willful “acts and omissions” on the part of the defendant — the court considered that the ground of the plaintiffs’ complaint was negligence on the part of the defendant. In other words, the court considered the term “willful” to mean intentional, viz., that the defendant in opening and operating its mine intentionally placed the slate upon the gob pile in question; and that the plaintiffs further intended the term “willful” as an essential for a recovery of punitive damages.

However, we are now authoritatively advised by plaintiffs’ learned counsel that “no element of negligence ... on the part of the defendant in burning the slate or gob from the mine is alleged by the plaintiffs or shown by the testimony.”

Therefore, it now appears that the plaintiffs’ cause of action — touching the burning of the slate and gob removed from the defendant’s mine — is predicated solely upon the theory that although the defendant was engaged in mining and removing coal from its own lands, yet it is responsible for injuries to the plaintiffs, even though such injury was the natural and necessary result •of the development of its own land by the defendant and although the defendant used every known appliance and precaution to avoid such injury.

Nov. 7, 1929,

In answer to the plaintiffs’ argument, it is only necessary to state that such contention on the part of the plaintiffs must be overruled under the authority of the cases above cited, including Harvey v. Coal Co., supra; Alexander v. Wilkes-Barre Anthracite Coal Co., supra, and Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126.

Plaintiffs’ learned counsel, citing Robb v. Carnegie, 145 Pa. 324; McCune v. Pittsburgh & Balt. Coal Co., 238 Pa. 83; Beecher v. Dull, 294 Pa. 17, and Sullivan v. Steel Co., 208 Pa. 540, contend that the plaintiffs have the right to maintain this action. In Robb v. Carnegie, supra, the defendant was manufacturing coke, the fumes from which caused injury to the plaintiff. In McCune v. Pittsburgh & Balt. Coal Co., supra, the defendant by artificial means diverted the mine water complained of from its natural channel, thus casting same upon plaintiff’s land. In Beecher v. Dull, supra, the evidence showed damages to plaintiff’s property by throwing stones thereon from the defendant’s quarry. In this case there was an actual trespass upon the plaintiff’s land. In Sullivan v. Steel Co., supra, the injury to plaintiff was occasioned by an artificial use of defendant’s land, to wit, the manufacture of steel, thereby actually destroying the houses and other property in a residential locality in the same city. In Quinn v. American Spiral Spring & Manuf. Co., 293 Pa. 152, also cited by plaintiffs, a private nuisance resulted from a manufacturing plant owned by the defendant. None of these cases are in point.

Our conclusion is that the court did not err in affirming defendant’s first and second point for instructions to the jury.

In submitting the case to the jury, the court said: “We now come to the other complaint of the plaintiffs, namely, that the defendant was negligent in placing rubbish, as the term has been described to you, upon this burning dump, or in permitting others to do the same, and that the fumes resulting from that caused the plaintiffs serious injury. If either the defendant or its agents placed rubbish on the dump, or if the defendant consented to the placing of rubbish on the dump and thereby caused damage to the plaintiffs, the jury may find that the defendant was negligent in that regard and may award the plaintiffs compensation for the damages suffered by them by reason of so placing or permitting rubbish to be placed upon the burning dump. On the other hand, if neither the defendant nor its agents placed rubbish on the dump and if the defendant did not consent thereto and had no knowledge that •such rubbish was placed on said dump, the plaintiffs cannot recover for injuries by reason of rubbish being placed upon the dump.”

The jury returned a verdict in favor of the defendant.

The court is not convinced that any error was committed in the course of the trial to the prejudice of the plaintiffs, but is of the opinion that the plaintiffs’ motion for a new trial should be overruled.

Order.

And now, after argument by counsel and upon due consideration, plaintiffs’ motion for a new trial is overruled, and the prothonotary is •directed to enter judgment upon the verdict upon payment of the jury fee.


author: Henry, P. J.,

text:
    Thomas v. Smullen.

      M. W. Sloan, for plaintiff; Paul Reilly, for defendant.
   Henry, P. J.,

52nd judicial district, specially presiding, Oct. 2, 1930. — The plaintiff brought this suit upon a promissory note admittedly given by the defendant. The jury returned a verdict in favor of plaintiff for $1011, the amount of the note with interest.

The defendant has taken a rule for a new trial, and in support of this rule assigns (1) that the court erred in overruling the objection of the defendant (prior to the jury being drawn and sworn) to going to trial, because of a suit previously brought upon the same cause of action having been discontinued in the Court of Common Pleas No. 2 of Philadelphia County; (2) that the trial judge erred in charging the jury that there was no evidence that plaintiff falsely made the alleged representations concerning the title to the King farm in question; (3) that the trial judge erred in charging the jury concerning the settlement certificate of the Colonial Trust Company, its effect and contents; (4) that the verdict was against the evidence and the weight of the evidence; (5) that the verdict was against the law.

The plaintiff entered into a written agreement for the purchase of what is known as the King farm, in Chester County. The agreement, at or about the time of its execution, was assigned by plaintiff to the defendant. The purchase price for the farm was $14,000. The agreement called for a down payment of $500, which was admittedly paid by defendant, a second payment of $900 fifteen days later, and the balance at a subsequent time. The plaintiff paid the $900 second payment, which he testified was made by him at the request of the defendant. The defejjflant gave plaintiff his promissory note for this $900, which was subsequently renewed, and this renewal note is the basis of this suit.

The plaintiff testified that the defendant was the real purchaser of the farm, and that the agreement was signed by plaintiff so that the name of the defendant would not appear in subsequent negotiations for a sale which the latter contemplated making to some banker friend.

The defendant testified that the plaintiff had in effect guaranteed the title to the farm, stating that he, the plaintiff, knew the title was all right.

The written agreement for the sale of the farm contained a provision that the title should be such as would be insured by any reputable title and trust company doing business in Chester County, but there was no evidence that plaintiff assumed this provision of the agreement.

The defendant contended that plaintiff had also agreed to finance a portion of the purchase by securing two mortgages of $10,000 and $1000 respectively. The plaintiff admitted that he had agreed to raise the sum of $11,000 upon mortgages, but contended that they were to be for $8000 and $3000 respectively, and further testified that he had arranged for these mortgages as agreed by him.

An official of the Colonial Trust Company was permitted to testify without objection as to the defects in the title and objections to its insurance. A settlement certificate prepared by the trust company was subsequently admitted in evidence, but the court rejected certain notations on the back of this certificate, these supplementary notes not being signed by the company or any of its officers, whereas the face of the certificate was signed by an officer. Among these notations on the back of the certificate were requests for the furnishing of tax receipts, and a suggestion that a survey of the farm should be made. As the certificate was made up, these notations appearing on the back were not a part of it, and we think the reference thereto in the charge was properly made. Indeed, the whole certificate might well have been excluded, because the plaintiff was not in any sense a party to the provision in the written agreement calling for such a title as would be insured by a title and trust company. The agreement was a matter between the seller and the buyer, and when the plaintiff sold and assigned his interest in this agreement to the defendant, its provisions were only pertinent and material as between the seller of the farm and the assignee of the agreement, the defendant. The verdict was, therefore, not against the law nor against the evidence or the weight of the evidence, and the reference to the settlement certificate was properly made. We find no evidence in the case that would warrant even the inference that the alleged representations as claimed to have been made by plaintiff were falsely made, if made; and this disposes of the second reason assigned in support of the rule.

The first reason assigned in support of the rule is based upon Rule No. 2 of the Courts of Common Pleas of Philadelphia County, which reads as follows: “Bills in equity for discovery, or to enjoin pending proceedings at law, and new suits upon the same cause of action wherein a discontinuance or nonsuit has been entered, shall be assigned by the prothonotary to the court, term and number of the original action or proceeding.”

The cause of action admittedly was originally brought in the Court of Common Pleas No. 2 and there discontinued, and if objection had been promptly made would have been transferred to that court. Really, the question is one of local practice; and where the attention of the prothonotary has not been drawn to the fact that a case for the same cause of action had been discontinued, he can hardly be expected to first search the records before assigning it to some other court. The defendant had practically immediate notice of the case being in the Court of Common Pleas No. 5, and if he objected to trial there he could have called the attention of the prothonotary to the fact and had it assigned to Common Pleas No. 2, or he could have applied to the judges of Common Pleas No. 5 and had the case transferred to Common Pleas No. 2. Moreover, prior to the Practice Act of 1915, where a case was improperly in one court, the proper way to raise this question would have been by plea in abatement. Since the passage of that act pleas in abatement and similar pleas are abolished, but the act specifically provides that “defenses heretofore raised by these pleas shall be made in the affidavit of defense.” The defense of this ease being improperly in this court is not raised by the affidavit of defense. The sole reference to the former trial in the affidavit is in reply to paragraph 3 of the statement wherein the plaintiff sets forth that payment of. the note has been demanded and refused. Replying to this paragraph 3 of the statement, the affidavit sets forth that “This defendant denies the averments of paragraph 3 of the statement of claim, except that demand for said sum was made in a certain suit brought by the plaintiff against the defendant in the Court of Common Pleas No. 2 of Philadelphia County, Pennsylvania, as of June Term, 1928, No. 720.”

Oct. 2, 1930,

After making no early objections to the case being brought in this court, filing an affidavit of defense to the merits, and again raising no question of the case improperly being here, and permitting the case to be on the trial list, witnesses to be subpoenaed and the case called for trial, it was too late to raise the question of the propriety of the case being tried here.

We find no reason for disturbing this verdict.

And now, rule discharged and judgment directed to be entered upon the verdict on payment of the jury fee.


author: Kun, J.,

text:
    Weinglass v. Gibson.

      James P. Gilliland, for plaintiff; William R. Newgeon, for defendant.
    Dec. 15, 1930.
   Kun, J.,

Plaintiff filed suit to recover damages from the defendant for alleged breach of contract. Plaintiff, producer, entered into a written agreement with defendant, theatre owner, dated Nov. 22, 1927, to produce a theatrical performance called “Settin’ The Pace” at defendant’s theatre, known as Gibson’s Theatre, during the week beginning Dec. 26, 1927, and ending with the midnight performance Jan. 1, 1928, after 12 o'clock A. M. Plaintiff agreed to furnish all billing matter, but no time for furnishing it was indicated in the agreement. The only prices for seats specified in the contract were those to be charged for the midnight show. The prices for all other performances, matinees and nights, were to be “regular.” The agreement also provided for the division of all gross receipts, less government war tax, equally between the parties.

On behalf of the plaintiff it was contended at the trial that shortly after the execution of the agreement defendant requested the plaintiff to cancel or defer the date for the performance because defendant desired to substitute another one called “Africana” for that Christmas week, and that plaintiff refused to do so because his cast would not agree to any postponement. It was shown at the trial that on Dec. 20, 1927, the defendant entered into a contract with another producer for the presentation of the show “Africana” at his theatre during the week beginning Dec. 26th, the same Christmas week during which he was under contract with the plaintiff to produce “Settin’ The Pace;” that the “Africana” contract was entered into by the defendant at or about the time that he made inquiry of the plaintiff by letter whether plaintiff was prepared to present “Settin’ The Pace,” requesting that billing matter be sent. This letter, though dated Dec. 17, 1927, was not posted in Philadelphia until Dec. 19, 1927, and not received by plaintiff in New York until Dec. 20, 1927.

It was further shown that immediately upon the receipt of that communication by the plaintiff he wired the defendant stating his willingness and readiness to produce the show “Settin’ The Pace” according to his contract, and that he would at once send the billing matter. There was testimony that the billing matter was so sent, although its receipt was denied.

There was further proof in the case that on the same day, to wit, Dec. 20, 1927, when defendant’s request for billing matter reached plaintiff, an advertisement appeared in a Philadelphia newspaper announcing the show “Africana” at defendant’s theatre for Christmas week, beginning Dec. 26th; that this fact coming to the attention of the plaintiff in New York on Dec. 22,1927, he wired again to the defendant, calling defendant’s attention to the advertisement, advising that he had already sent his billing matter, reiterating that he was willing and able to perform his contract, and that he would hold defendant accountable for any violation of it. According to the proofs, defendant replied to neither telegram.

It was taken as admitted in the case that the show “Africana” was presented at the defendant’s theatre during the Christmas week in question. There was further testimony in the ease that the plaintiff’s show, “Settin’ The Pace,” had been fully organized and had given some performances in New York in the early part of December; that it was in the nature of a revue, and that included in the cast were well known vaudeville artists who had appeared on Keith’s Circuit. It also appeared that Christmas week was the most desirable week or peak week in the show business, conceded to be so by the defendant, with the qualification that Thanksgiving week was also considered a very good week. There were some disputed questions as to the fact of plaintiff’s readiness and ability to produce his show. It also appeared by the proofs in behalf of the plaintiff that the capacity gross receipts at defendant’s theatre Christmas week would be from $17,000 to $18,000. There was no denial or qualification of this by the defendant. The disputed questions of fact were submitted to a jury, and a verdict for the plaintiff was rendered in the sum of $7335, which the court reduced to $5000.

Two major questions of law are involved. The first is whether, under the facts and circumstances in the case, plaintiff was bound to tender performance, that is, by bringing his cast over to Philadelphia on Dec. 26, 1927, and presenting them at the defendant’s theatre with an offer to perform. The law never requires any one to do an idle or vain thing. Performance of a contract or offer to perform it is excused and rendered unnecessary when it is prevented by the acts of the other party or is rendered impossible by him: 13 Corpus Juris, 647, 648. This principle was early recognized in Pennsylvania: Feay v. Decamp, 15 S. & R. 227. The principle found expression in the recent case of Greenlee v. West, 71 Pa. Superior Ct. 468, as follows:

“The law does not require the performance of things impossible to be done, and especially is that true where the impossibility is created by the act of the party for whose benefit performance was to be made. By the application of the doctrine of equitable estoppel we are furnished with the key to the solution of the question before us. Why should the defendant be permitted to take any advantage of the failure of the plaintiff to pay or tender payment of a certain sum of money on a given day when he himself, for his own purposes, chose to make it impossible for the other party to act? We are of the opinion the plaintiff could maintain an action at law to enforce his rights, notwithstanding the fact he had made no actual tender nor afterwards paid the money into court to maintain a tender which had been, for all practical purposes, waived by the defendant. The plaintiff, having satisfied the jury he was ready and willing and able to pay and made every reasonable effort to do so, there was no error in proceeding with the trial of the cause just as if no question of tender had been involved.”

The defendant, as was definitely established in the case, made a contract with another for the presentation of another performance, “Africana,” having advertised the fact in the press several days before the opening date of the performance, Dec. 26, 1927, and it would have been an idle and useless thing for the plaintiff to have brought his cast of “Settin’ The Pace” and effects over from New York and presented them at the theatre on the opening date. The plaintiff was not required to do so under the facts found by the jury. Indeed, in such circumstances, defendant having so unmistakably breached the contract, it became the duty of the plaintiff to minimize the damage, and he did minimize it by not going to the useless expense of bringing his cast and effects over from New York to Philadelphia, and the defendant received a credit for this cost of transportation, which was not incurred, under instructions of the court, as he did for salaries of several of the performers in “Settin’ The Pace” who managed to secure other engagements, on the rather short notice, for the Christmas week.

The other major legal point in the case is whether there was sufficient proof as to the damages suffered by the plaintiff. The contention of the defendant was that the plaintiff was limited to recovering the cost of preparation of his show and perhaps the salaries of his cast for the Christmas week in question, and that other damages would be speculative and not recoverable.

Undoubtedly damages, if based on mere speculation, imagination or guesswork, cannot be allowed, but it is a mistake to assume that because damages cannot be fixed with mathematical precision no recovery may be had. Where there is a basis in the evidence for a reasonable computation of the damages suffered, considering’ the nature of the transaction, a verdict may be based thereon, though there may be involved some uncertainty about it. So, in the case of Singer Manuf. Co. v. Christian, 211 Pa. 534, where the defendant in a counter-claim sought to recover damages caused by the alleged breach of plaintiff, on account of which defendant contended his plant was kept shut down, the jury was allowed to take into account “the profit which the defendant might have made” had the plaintiff not breached its contract to furnish work continuously according to the alleged agreement in that case; and in a later case, Wilson v. Wernwag, 217 Pa. 82, numerous authorities are reviewed, including the one just cited, and it was again held that prospective profits could be recovered as damages where there has been a breach of contract, the court going so far as to approve the use, as a basis for the finding, of the profits earned by the successors of the defendant, in that case in the same line of business, the defendant having discontinued the business, an extreme view one would take it, because the factors which went into the earning of profits by the defendant’s successors, such as perhaps their superior abilities and better business management, might have produced much greater profits than defendant would have earned had he continued the business himself. The court said, page 95:

“Such profits are not speculative, imaginary, or uncertain. . . . The law does not require absolute certainty as to the data upon which profits are to be estimated, but certainty to a reasonable degree or extent, so that the damages may rest upon a definite basis and not wholly in speculation and conjecture.”

This principle has been repeatedly reaffirmed. See Fidelity-Philadelphia Co. v. Simpson, 293 Pa. 577, 587; Jessup & Moore Paper Co. v. Bryant Paper Co., 297 Pa. 483, 494.

In the case before the court there was competent testimony that the peak week in the theatrical business was Christmas week; that the plaintiff’s show, “Settin’ The Pace,” had a number of well known stars in it, stars at least in the firmanent in which they shone; that the gross receipts at the defendant’s house in such a peak week of business would be from $17,000 to $18,000, not contradicted by the defendant. No question of profits was involved in this case. The agreement between the parties was to divide the gross receipts of the week in question. There was here a reasonable basis upon which the gross receipts could be fairly and reasonably estimated. The defendant might have shown what the gross receipts actually were for the week in question, but he did not. As stated, he did not contradict the estimated gross receipts given as $17,000 to $18,000. He cannot properly contend that the jury had no basis for its finding. The size of the verdict rendered by the jury indicates that they did not take the full capacity receipts of the house as a basis for the verdict, and as the verdict has been further reduced by the court, we feel satisfied that the verdict as reduced is proper and has full foundation for it in the evidence.

The language of the court in Brady v. Erlanger, 177 N. Y. Supp. 301, 304, where a finding of $25,000 in damages for failure to give certain performances in a theatre case was sustained, is in point. “Where the fact of loss is certain, the wrongdoer will not be heard to say that the innocent party shall be deprived of any and all recovery merely because the exact amount of damages cannot be fixed with precision. One who finds that the application of this rule to his particular case works a hardship has only his own wrongdoing to blame for his predicament.” The court feels no hardship has been worked on the defendant in this phase of the case, the verdict, as reduced by the court, being quite conservatively within the reasonable implications of the evidence on the question of gross receipts. Substantial justice has been done, and “substantial justice is better than exact justice:” Osterling v. Frick et al., Exec’rs, 284 Pa. 397, 404.

The motion for new trial was properly dismissed, and the motion for judgment n. o. v. was properly overruled.


author: Niles, P. J.,

text:
    Schmuck v. Heilman.

      John A. Hoober, for plaintiff; George Hay Kain, for defendant.
    Dec. 3, 1930.
   Niles, P. J.,

In this action of trespass plaintiff’s statement alleges facts regarding which there was evidence as follows:

April 23, 1928, plaintiff fell and was rendered unconscious and was put into a taxicab of the defendant operating as a common carrier to be taken to his home.

On the way the plaintiff in his unconscious condition was jolted from the seat to the floor of the taxi, falling upon a heater with which it was equipped.

Plaintiff’s companion asked the driver of defendant’s taxi to help lift the plaintiff from the heater, which help was refused.

Defendant’s agent, the driver of the taxi, refused to drive him to his home because of his refusal to pay his fare, and took him to the city lockup, where he was imprisoned overnight.

While in an unconscious state, plaintiff was resting upon the heater in the taxi.

The case was submitted to the jury upon the theory that defendant’s obligation was that of a common carrier to exercise the highest degree of practicable care and skill in the performance of transportation of his passenger, and that if injuries result to a passenger from defects which could have been avoided by the exercise of the highest care and diligence regarding the machinery furnished, the carrier is liable.

The jury was instructed that whether the plaintiff was paralyzed by drink or by the blow upon his head when he was accepted as a passenger in the taxi makes little difference regarding defendant’s legal obligation to him.'

It was the driver’s duty to give him that degree of attention which his helpless condition required. Whether the driver recklessly exposed the plaintiff to danger against which, because either of his intoxication or his falling, he was unable to guard, and whether that exposure was the proximate cause of his burns, was the question submitted for decision of the jury.

Upon review of the record and after hearing the argument of counsel we are persuaded that there was not sufficient evidence upon which the case should have been submitted to the jury, and that defendant’s request for binding instructions should have been affirmed, and that now he is entitled upon the whole record to judgment n. o. v.

There was no evidence that the heater in the taxi was defective in any way. There was uncontradicted, positive evidence that it'was of the best and safest construction in general use, and that neither before nor after the plaintiff had been in the taxi the condition of the heater was such as could have produced the injury complained of.

The only testimony on the subject was:

Plaintiff testified that after drinking the liquor in Cherry Alley he fell and was unconscious until he found himself in the city lockup, when he said his left leg hurt and was all red, bloodshot and burned awful, and he had a lump on his head. This was at 8.30 o’clock at night, several hours after he had been in the cab.

Plaintiff was first seen by a physician, Dr. T. A. Lawson, on April 25, 1928. The doctor found that plaintiff was burned.

Lloyd Eberly, plaintiff’s companion, testified: “There was a heater in there about two feet long, I suppose, and stands out of the floor about 3 or 4 inches, and he was right laying on this heater, and it was not a very comfortable position, and it was really rather warm in the car.”

Plaintiff lay on the heater probably about 45 minutes in an unconscious condition. When the taxi bill was not paid, the driver took the plaintiff back from Red Lion to the York City Hall, which consumed another 45 minutes, during which time he was on the heater.

Mrs. Amanda Sehmuck, plaintiff’s wife, testified that when he left home on the morning of April 23, 1928, he was perfectly all right. The next day, about 9 o’clock in the evening, she found a kind of lump on the back of his head and the condition of his body from the hip to the knee. She sent for the doctor the next day, April 25th.

James M. Smith saw the plaintiff in the taxicab at Red Lion between 5 and 6 o’clock in the evening of April 23,1928. On opening the door, he said: “It is pretty hot in there — it is pretty hot in this taxi.” Plaintiff was lying on the floor of the taxi. Smith said he tried to talk to him and he could not; “and I got his pocketbook out of his pocket and he had $2 in there, and I gave that to the taxi driver.”

John E. Gohn saw the plaintiff in the taxi at the same time as James M. Smith.

There was no effort made at the trial to exclude the possibility that some outside agency had caused plaintiff’s alleged injuries. Plaintiff was in defendant’s taxicab for less than two hours. He was unconscious in the lockup for .four hours thereafter, and he appeared to his wife twenty-four hours thereafter complaining of the burns.

The case is barren of any evidence that the so-called heater, either before or after, or while the plaintiff was in contact with it on the floor of defendant’s cab, was in any way out of order, or was hot, or did or could have cooked or burned plaintiff’s flesh.

The circumstances leave open the reasonable probability of the injury being caused by some other agency than any for which the defendant was responsible.

The conclusion that plaintiff’s injury was the result of contact with the so-called heater, in the absence of evidence that there was anything wrong with it or that it burned the plaintiff or was hot enough at any time to burn anybody or anything, would amount to no more than a guess.

A review of the evidence shows no basis for plaintiff’s motion for new trial.

And now, to wit, Dec. 3, 1930, plaintiff’s motion for new trial filed Sept. 17, 1930, is refused and the rule issued thereon discharged; defendant’s motion for judgment non obstante veredicto filed Sept. 17, 1930, is granted and the rule issued thereon is made absolute; judgment is entered upon the whole record against the plaintiff and in favor of the defendant wow, obstante veredicto; and an exception is granted to the plaintiff and to the defendant to the court’s action in these regards. Prom George Hay Kain, York, Pa.


author: Culver, P. J.,

text:
    Commonwealth v. Ackley.

      W. M. Rosenfield, District Attorney, for Commonwealth.

      W. P. Wilson, for defendant.
    Dec. 22, 1930.
   Culver, P. J.,

The defendant, James Ackley, was indicted, tried and convicted of fornication. In his trial he offered no evidence, and the evidence on the part of the Commonwealth was amply sufficient to sustain the verdict.

After he was convicted he moved the court in arrest of judgment, alleging in support thereof that the Commonwealth offered no evidence to show that he and Blanch Bailey, with whom the evidence discloses he committed the act, were not married.

There is not the slightest merit in this contention, as there is no claim that he and Blanch Bailey were married, but it was contended that judgment must be arrested because the Commonwealth did not prove that fact. If defendant’s contention be sustained, it would be practically impossible to convict any one of fornication, as it would require the Commonwealth to prove a negative, which is always difficult and frequently impossible. As we view the law, no such burden rested upon the Commonwealth.

There is no presumption that James Ackley and Blanch Bailey were husband and wife and no duty rested upon the Commonwealth to introduce evidence to establish they were not. If they were, it was a matter of defense peculiarly within the defendant’s knowledge and should have been brought forth by him.

No Pennsylvania case directly in line has been called to our attention, but the question is squarely ruled in Gaunt v. State, by the Supreme Court of New Jersey, and reported in 14 Atl. Repr. 600, where Justice Garrison said:

“This is an indictment for fornication, brought here by writ of error. In his argument before this court, the counsel for the plaintiff in error relied upon two points. The first of these was the omission of the state to prove that the complaining witness was a single woman. This exception is not tenable. The indictment, it is true, charges that the person with whom the defendant committed fornication was a single woman. The single state is, however, the natural, and, during early life, the only possible, one; nor is there any period at which it is necessarily terminated or merged into marriage. In the absence, therefore, of testimony tending to the contrary, the presumption is that the celibacy which existed during puellescence continues. Therefore, until drawn into actual question, no affirmative testimony on this point was required from the prosecution.”

The same rule is laid down in State v. McDuffie et al. by the Supreme Court of North Carolina and reported in 12 S. E. Repr. 83. In delivering the opinion therein, Justice Clark said:

“We concur with his honor in the instruction given in lieu of the second prayer for instruction. Whether defendants were married or not was a matter peculiarly within their knowledge. If married, they could have easily shown that fact and at once have put an end to the proceeding. They were themselves competent witnesses. To call upon the state to prove a negative of this character would virtually repeal the statute. Parties might come to this state from other states or foreign countries, or, indeed, from distant counties in this state. The state could not positively prove in many cases that the parties had at no time and in no place ever been married. This construction would license concubinage. On the other hand, it is no hardship on the defendants when so charged with scandalous offense to prove that they live in honored wedlock. A similar rule, and for the same reason, prevails in indictments for retailing without license. If the retailing is shown, the burden is on defendant to show that he has license so to do. . . . The state need not prove that the defendants are unmarried. It will be presumed such is the case till defendants offer proof to the contrary. . . . The single state is the natural, and, during early life, the only possible, one; nor is there any period at which it is necessarily terminated or merged in marriage. In the absence, therefore, of testimony tending to the contrary, the presumption is that the celibacy which exists in youth continues. Therefore, until drawn in question, no affirmative testimony on this point was required from the prosecution. . . . And, again, while the burden is on the state to prove the res gestee of the offense, marriage or nonmarriage is no part thereof. It is a status which exists prior to such acts and independently of them. The single state existing first, in the absence of evidence is presumed to continue, and, if it has been changed to the marriage state between the defendants, it is a matter peculiarly within their own knowledge, and there is no good reason to call on the state to prove a negative.”

In 8 Am. & Eng. Encyc. of Law, 563, the following rule is laid down:

“The prosecution need not prove that the parties are unmarried; it will be presumed such is the case until the defense offers evidence to the contrary. It is said in a recent case that the omission to prove that the complaining witness in an indictment for fornication was a single woman is not error; the single state, being the natural state, will be presumed until testimony to the contrary is offered.”

As we have stated, there is no merit in defendant’s position. He and Blanch Bailey, who was a married woman, were found sleeping together in a house occupied by them. The defendant was charged with fornication (as he was a single man) and Blanch Bailey was charged with adultery (she being a married woman). Blanch Bailey came into court and pleaded guilty to adultery and was sentenced. The defendant pleaded not guilty and rested his case when the Commonwealth rested, and now asks to be relieved upon a technicality which, in our judgment, does not exist. We are, therefore, of opinion we were correct in denying motion in arrest of judgment and imposing sentence upon him. Prom Rodney A. Mercur, Towanda, Pa.


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

text:
    Investment of Funds by State Boards.
    Oct. 19, 1930.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised respecting the legality of investments made by boards of trustees of state institutions which have the right to make investments of funds donated to such boards to be held in trust for certain specific purposes stated by the donors of the funds.

A number of boards having such funds have made investments without submitting them to the Governor for approval. You desire to know whether this can lawfully be done.

Prior to the passage of the Act of April 13, 1927, P. L. 207, the boards of trustees having such funds in their care were free to make investments in their discretion and without referring their action to any other officer for approval. Section 39 of the Act of 1927, amending section 701 of The Administrative Code of 1923, provided that:

“The Governor shall have the power and it shall be his duty. . . .

“(f) To approve or disapprove all investments by departments, boards, or commissions of funds administered by such departments, boards or commissions.”

This same provision was reenacted in section 701 of The Administrative Code of 1929 (Act of April 9, 1929, P. L. 177).

In view of the fact that the same act in which occurs the provision above quoted provides for the organization and specifies the powers and duties of all of the administrative departments, boards and commissions of the state government, there can be no doubt whatever that the power conferred upon the Governor to approve or disapprove all investments by departments, boards and commissions necessarily renders it the duty of all departments, boards and commissions to submit to the Governor proposals for investment so that he may either approve or disapprove them. As all boards of trustees of state institutions are departmental administrative boards, they are, of course, embraced within the meaning of section 701 (f) of the Code.

Accordingly, since April 13, 1927, it has not been lawful for any department, board or commission to make any investment of funds in its charge or under its control without first obtaining the approval of the Governor.

Prom C. P. Addams, Harrisburg, Pa.