author: Bechtel, P. J.,

text:
    O’Neill v. Reading Railway Company.

      Negligence — Railroads—Evidence—Damages—Carlisle Tables.

    1. The admission of the Carlisle Tables in a negligence case, although erroneous, is corrected where the court positively and unequivocally states in its charge the proper rule which should govern the jury in assessing the damages.

      Evidence — Im/peachment of witness — Consonant prior statements.

    2. While it is proper to support a witness by proof of consonant prior statements at other times, such proof is only admissible where the testimony of such witness has been attacked and his credibility impeached.

      Negligence — Damages—Expenses—Suit by mother for death of son.

    3. In an action by a mother for the death of her son, she is entitled to recover, if she is entitled to recover at all, the necessary expenses which she had incurred as the result of the killing of her son.

      Negligence — Charge—Excerpts from charge — New trial.

    4. Excerpts from the charge will not be considered erroneous and as grounds for a new trial where the charge as a whole did not mislead the jury or prejudice the defendant’s rights.

      Negligence — Railroads—Crossings—Evidence — Signals — Negative testimony — Safety-gates.
    5. In an action against a railroad company for damages for the negligent killing at a grade crossing, plaintiff’s proof as to blowing the whistle is not negative in character where her witnesses were persons either approaching the crossing or who had just crossed it and who would naturally be on the lookout for a train or the signal of an approaching train.
    6. Safety-gates, which should be closed in case of danger, if standing open are an invitation to the traveler to cross, and while this fact does not relieve him from the exercise of care, it is a fact for the consideration of the jury in determining whether he exercised care according to the circumstances.

      Negligence — Railroads—Crossings at grade — Death—Presumption—Evidence.

    7. Where a person is killed at a grade crossing of a railroad, the presumption is that he stopped, looked and listened. Such presumption may be rebutted, but if evidence is offered for that purpose, the case is for the jury.
    Motions for new trial and for judgment n. o. v. C. P. Schuylkill Co., May T., 1925, No. 125.

      Henry Houck, for plaintiff.

      John F. Whalen and George Ellis, for defendant.
    Dec. 19, 1927.
   Bechtel, P. J.,

In this case the defendant filed-a motion for judgment n. o. v. and a motion for a new trial. In support of the motion for a new trial, the stereotyped reasons were assigned. Later on, defendant filed additional reasons as follows:

“1. The court erred in admitting evidence of Charles Green as to the speed of train.
“2. The court erred in admitting Carlisle Tables in evidence to show expectancy of life of the plaintiff.
“3. The court erred in sustaining objection to testimony of Charles W. Fister to show that, after the accident and before the trial, Henry Dornsife, witness for defendant, made statement to the witness Fister similar to what he testified at the trial, the cross-examination of Dornsife being for the purpose of attacking his credibility.
“4. The court erred in allowing plaintiff to testify what she paid to the undertaker.
“5. The court erred in allowing evidence as to the claim for digging grave.
“6. The court erred in its charge to the jury as to what plaintiff’s son contributed to her.
“7. The court erred in its charge (pages 8 and 9) in the following: ‘Now, I will say to you in this connection, ladies and gentlemen, that it was the duty of the defendant’s employees in charge of the train to give timely and sufficient warning of its approach to the crossing. Failing to do this, in view of the circumstances of the case, such as the guarding of the crossing, ability of travelers to see the approaching trains, its rate of speed, and things of that sort, the plaintiff, in the absence of negligence on the part of the deceased, would be entitled to recover.’
“8. The court erred in its charge, in the face of positive evidence that O’Neill did not stop to look and listen, as follows: ‘Now, if you find that this young man did stop, look and listen, did he use care according to the circumstances in which he found himself? If he did not, he was guilty of negligence; and if he was guilty of negligence, the plaintiff, his mother, cannot recover. On the other hand, if he did exercise caution and was not guilty of contributory negligence, was the company guilty of negligence?’
“9. The court erred in not affirming defendant’s sixth point for charge, that, under all the evidence, the verdict should be for the defendant.”

The first reason in support of the motion for a new trial is not pressed upon us in the brief for the defendant. We do not feel, however, that any error was committed in admitting the evidence of Charles Green as to the speed of the train; in fact, if his testimony relative to his competency is to be believed, he was more competent than the average witness who testifies as to the speed of moving objects.

The second reason is also not pressed in the brief of counsel for the defendant. The admission of the Carlisle Tables in a case such as this is without doubt error) In this case, however, we are fully convinced that it was harmless, for the reason that the error was corrected in the charge of the court: “This woman is the mother of this young man. He was a minor; he was under the age of twenty-one. She was entitled to his earnings up until the time he should have been twenty-one.”

And, again: “First of all, no one knows how long we are going to live; and while it is entirely probable that this young man would have lived to have reached the age of twenty-one, still no one can say positively that he would have done so. . . . Further than that, if you decide to allow her compensation for loss of support or earnings of this young man, you must remember that you cannot figure that he would earn or give her so much per week, and multiply it by the number of weeks from the date of his death until he would have reached the age of twenty-one, if you thought he would have lived that long; but you must figure out the present worth of it, because she is anticipating; she is getting it now for then.”

In addition to this, the defendant’s fifth point was as follows: “5. The plaintiff is not entitled to recover for loss of her son’s earnings beyond a period of about two years and not after he became twenty-one years of age. A. We affirm that.”

It will thus be seen that the jury was instructed as a matter of law, positively and unequivocally, that it could award no compensation to the plaintiff for any time after her deceased son would have been twenty-one years of age.

In the third reason it is claimed that the court erred in sustaining objection to testimony of Charles W. Fister to show that, after the accident and before the trial, Henry Dornsife, witness for defendant, made statement to the witness Fister similar to what he testified at the trial. Mr. Fister was called during the presentation of the defendant’s case sometime subsequent to Dornsife. The following question was asked: “Q. State whether or not, on the occasion of your visit to him1 (Dornsife) at the hospital, he made a similar statement to you? A. He did-.”

This was objected to; the objection was sustained, whereupon counsel for defendant made the following statement to the court: “That testimony seems to us to be quite pertinent. They have cross-examined Dornsife with the idea of attacking his veracity and credibility and recollection, and it has been decided frequently, if I recall it, that under such circumstances you can prove consonant statements made by the witness. It has been allowed in this court from the time of the Hester Case.”

To this statement counsel for plaintiff replied, whereupon the court again sustained the objection, saying: “As a general rule, declarations made by witness at another time, though admissible to contradict him, are not competent to confirm or corroborate his present testimony. Such declarations are mere hearsay. . . . However, there are some recognized exceptions to this rule, and under certain circumstances prior declarations of a witness, consistent with his present testimony, are admissible in corroboration of it. While it has been said in an early case that such evidence is admissible whenever his credit is impeached by attacking his character or by proof of inconsistent declarations made by him, or whenever his testimony is contradicted by other proof, this rule has been limited by later cases, in which it is declared to be the better rule that such evidence is admissible only when it is alleged that the testimony of the witness is a recent fabrication, or he is charged with having testified from corrupt motives, or his mental capacity has been attacked. . . . But the mere fact that the conflict of evidence is such that it can be explained only on the theory that one or the other of the opposing witnesses is wilfully fabricating his testimony, is insufficient to permit one to corroborate his testimony by calling other persons to say he had told them the same thing. . . . Nor is such evidence admissible in chief, but only after evidence has been given to contradict the witness.”

The rule in cases of this sort has been carefully considered and reiterated in Lyke v. The Lehigh Valley Co., 236 Pa. 38, wherein the court says: “Testimony of this character is known as evidence of a consonant statement; and this may be defined as a prior declaration of a witness whose testimony has been attacked and whose credibility stands impeached, which, considering the impeachment, the court will allow to be proved by the person to whom the declaration was made, in order to support the credibility of the witness, and which, but for the existence of such impeachment, would ordinarily be excluded as hearsay. To sustain the admission of such declarations, the impeachment must plainly appear and must go to the credibility, of the witness. The law is well stated in State v. Parish, 79 N. C. 610, 614, thus: ‘The rule is, that when a witness is impeached — observe, when a witness is impeached — it is competent to support the witness by proving consistent statements at other times, just as a witness is supported by proving his character, but it must not be construed as substantive evidence of the truth of the facts, any more than any other hearsay evidence. The fact that supporting a witness who testifies does indirectly support the fact to which he testifies does not alter the case. That is incidental. He is supported, not by putting a prop under him, but by removing a burden from him, if any has been put upon him. How far proving consistent statements will do that must depend upon the circumstances of the case. It may amount to much or very little. ... It is not usually permissible to support the credibility of a witness by evidence that he had made a former statement similar to his testimony in the case on trial, and the best considered authorities hold that evidence of this character should not be allowed except in rare instances, where the credibility of a witness is impeached in such a manner and to such an extent that the trial judge feels convinced that the witness is entitled to the support. Where this is so, and proper instructions are given to the jury concerning the real purpose and value of the testimony, no harm is likely to follow.”

It will be noted that the witness Fister was called before any witnesses were offered by the plaintiff to rebut the testimony of Dornsife, in addition to which the plaintiff did not contend that Dornsife’s testimony was a recent fabrication. Further than this, no formal offer of Fister’s evidence was ever made to the court, and the explanation for the offering of it as given by counsel for the defendant does not, we think, bring it within the rule relative to consonant statements as herein set forth.

We do not think that the fourth and fifth reasons have any merit. The plaintiff, if she was entitled to recover, was surely entitled to recover the necessary expenses which she had incurred as the result of the killing of her minor son.

Nor do we think that the sixth reason has any merit. The plaintiff testified that her son worked as an automobile mechanic; that he gave her $20 a week, sometimes $30 and sometimes as high as $50; that when he quit at Smith’s Garage, he was earning $15 a week. Surely this was evidence for the consideration of the jury to assist them in determining the earning capacity of the deceased. The specified error complained of in the court’s charge relative to this item is not set forth in the reasons for a new trial, but an examination of the charge has failed to convince us that we committed any error in dealing with this subject.

The seventh reason for a new trial alleges that the court erred in its charge to the jury in using the language therein contained, and the eighth reason claims that the court erred in its charge in employing the language therein quoted. It will be noted that these are two short excerpts from the charge of the court and detached from their context. While we do not feel that'the language employed was erroneous, still an examination of the charge and the context throws considerably more light on the theory on which the court submitted this case to the jury. At the very beginning of its charge on the law, the court said to the jury:

“The law presumes that this man, who is dead, did his duty; that is, it is presumed that he stopped, looked and listened. That is an imperative duty that is cast upon every citizen when he approaches a railroad crossing. There is no excuse for not complying with it, and if you find from the evidence that this young man who was killed did not stop, look and listen before he crossed this crossing, your verdict must be for the defendant in this case. Now, I have said that there is a presumption that he did that. That is based on the doctrine of the law that every man is presumed to have done what the law requires him to do. But it is only a presumption; it can be rebutted and overcome by evidence, and the first question that you will consider is whether or not that was done in this case. Now, there is only one person living, so far as we have been able to ascertain from this record, who saw this accident, and that is the crossing watchman, and he swore that this young man did not stop, look and listen as he approached the crossing.
“It is claimed that this train was operated at an excessive rate of speed as it came down to this crossing. Now it may, under certain circumstances in this case, become essential for you to know the rapidity with which the train approached the crossing, because that might assist you in determining, under all the conditions existing at the crossing, the length of time that would elapse between the giving of the signals, if you find that any weref given, and the time that the train would reach the crossing; in other words,.the length of time that the decedent would have had to protect or guard himself against the danger of a train crossing the road at this point.
“Now, I will say to you in this connection, ladies and gentlemen, that it was the duty of the defendant’s employees in charge of the train to give timely and sufficient warning of its approach to the crossing; failing to do this, in view of the circumstances in the case, such as the guarding of the crossing, the ability of travelers to see the approaching train, its rate of speed, and things of that sort, the plaintiff, in the absence of negligence on the part of the deceased, would be entitled to recover. The law does not point out any particular mode or manner in which notice of trains approaching crossings shall be given. It does require that some suitable and adequate means adapted to the circumstances shall be adopted and applied. While companies may move their trains at such rate of speed as the character of the machinery and the roadbed may make practicable, they must not forget that increased speed of the train means increased danger to those who cross the track, and that increased care on their part to guard against accidents becomes a duty. From this, it naturally follows that the rule is that it is the duty of employees on a train approaching a crossing to give such signal as will protect the traveler if he exercises ordinary care. It is not a conclusive answer for a company to say that the bell was rung or the whistle was sounded, in replying to a charge that the train negligently approached a grade crossing, unless it appears that, under the circumstances of the case, such signal was sufficient to give timely notice to travelers who were approaching the crossing on the highway. At such crossing, the duties of the company and of the traveler are reciprocal, and each must approach the crossing with a due regard for the rights of the other; and when either fails to observe the care required, it is negligence, for which the guilty party is responsible.
“Now, it has been said that negligence is the absence of the exercise of care according to the circumstances. Every one must exercise care according to the circumstances in which he finds himself; that is, he must do what a prudent mind would do under the circumstances.
“Now, if you find that this young man did stop, look and listen, did he use care according to the circumstances in which he found himself? If he did not, he was guilty of negligence; and if he was guilty of negligence, the plaintiff, his mother, cannot recover. On the other hand, if he did exercise care and was not guilty of contributory negligence, was the company guilty of negligence? That is the next question. Unless the company was guilty of negligence you cannot find a verdict against it, even though the young man was not guilty of negligence, because to permit a person to recover from another person or from a corporation for negligence it becomes the duty of the party alleging the negligence to show to the satisfaction of the jury, by the fairly preponderating evidence in the case, that the defendant was guilty of negligence. Now, was the company guilty of negligence?”

We do not think that there was anything in this language which would tend to mislead the jury or prejudice the defendant’s rights. The language was as favorable to the defendant as he had any right to expect. In addition to this, in considering the question of the crossing gates and the claim that the gates on the Gordon side did not go down at all, the court said: “I do not know that that makes so much difference in the case. That is a question for you. As I view it, first of all, the presence of the gates would not excuse a traveler from stopping, looking and listening. He must do that whether the gates are there or not; his duty to stop, look and listen remains the same. It must be borne in mind that these gates are mechanical appliances; they are pieces of machinery; they might get out of order; they might get out of order just at the time when they want to use them; and while they are put there for an additional protection for the traveler, that does not absolve the traveler from exercising ordinary care according to the circumstances, and it would be his duty to do that. But, further than that, the thought occurs to me, while, of course, it is your privilege and your duty to pass upon this case and determine for yourself what has been proved here, even if the gates did not go down on the Gordon side of the tracks, if the gates went down on the Ashland side of the tracks and went down in time to warn anybody, any person who approached that crossing must have seen the gates down on the Ashland side and, seeing them down on the Ashland side, would naturally be put upon inquiry as to why they were down and whether or not it was safe for him to cross, even though they might not have gone down on the Gordon side.”

We have now considered at length the reasons for a new trial in this case, and, for the reasons herein given, do not feel that there is any merit in any of them. There is, however, pending also a motion for judgment n. o. v. Plaintiff’s minor son was killed at the grade crossing of the State highway and defendant’s tracks at the lower end of the Borough of Ashland while attempting to cross the tracks in a motor-vehicle. The grade crossing is guarded by a watchman and safety-gates. It is contended that the defendant was negligent, in that it operated its train at an excessive speed, that it failed to give sufficient notice of the train’s approach, and that the watchman failed to lower the safety-gates at the crossing.

As is usual in cases of this character, there is a wide divergence in the testimony relative to the speed of the train between the plaintiff’s witnesses and those of the defendant. Plaintiff’s witnesses fixed the speed of the train as high as between thirty-five and forty miles per hour, while defendant maintains that it was running between eighteen and twenty miles per hour. The rate of speed, of course, under these circumstances, would be a question for the jury to determine. While the plaintiff’s tracks constitute its private right of way, on which it may operate its trains, still it must be borne in mind that the rights of the company and the traveler on the highway are reciprocal, and an increased rate of speed would naturally impose upon the defendant company increased care and regard for the rights of the traveling public. Under these circumstances, it seems to us material to inquire as to the warning given by defendant company of the approach of its train at this crossing.

Defendant’s witnesses claim that adequate warning was given in the usual way. Plaintiff’s witnesses claim that they heard no such warning. It is claimed by defendant that plaintiff’s testimony is negative in its character. We do not think that that is correct, in view of the circumstances of this case. The witnesses for the plaintiff were persons either approaching the crossing or who had just crossed it, and who would naturally be on the lookout for a train or the signal of an approaching train. It seems to us, therefore, that this testimony comes rather within the rule laid down in Sharpless v. The D., L. & W. R. R. Co., 286 Pa. 439. There it is said (page 444): “Appellant contends that adequate signals by whistle and bell were given for the crossing. There can be no question that a blast of the whistle was given when the engine was within seventy-five to one hundred feet of the crossing; substantially all the witnesses on both sides so say. It is recognized by appellant’s counsel that this signal was not a sufficient warning, but they contend that, prior to it, adequate approach signals were given, and they called witnesses who so testified. Other persons speaking in appellee’s behalf said that no prior danger signals were given. Appellant urges upon us that this testimony was negative under such cases as Rapp v. Central R. R. of Penna., 269 Pa. 266; Keiser v. Lehigh Valley R. R. Co., 212 Pa. 409; Craft v. Hines, Director General, 272 Pa. 499; Cubitt v. New York Central R. R. Co., 278 Pa. 366; Zotter v. Lehigh Valley R. R. Co., 280 Pa. 14, but we do not so regard it. The witnesses who declared the whistle was not blown for the crossing until the blast seventy-five or one hundred feet therefrom were not of a class who simply did not hear it, but they were in such position with reference to the railroad that they must have heard had the whistle sounded; indeed, some at least of them were expecting the train and would, therefore, have been conscious of its approach had it been heralded. Three of the witnesses were in front of a building on East Street, on which the accident occurred, a few feet only from the main track of the railroad. One of them said they were expecting the train and another that he knew the train was late. The latter said, if it had whistled, they could not have helped hearing it, and the third that he heard the toot just before it came to the crossing, and that this was the only warning given. This was not negative testimony: Simons v. Phila. & Reading Ry. Co., 254 Pa. 507; Cubitt v. New York Central R. R. Co., 278 Pa. 366.”

As bearing on the length of time that a warning (if any) was given by the approaching train, it will be noted that one at least of the witnesses testified that the gates that went down were lowered while the train was on the crossing. In this connection, it is well to observe the language employed in Messinger v. The Pennsylvania R. R. Co., 215 Pa. 497, which is as follows: “Safety-gates which should be closed in case of danger, if standing open, are an invitation to the traveler on the highway to cross, and while this fact does not relieve the traveler from the duty of exercising care, it is a fact for the consideration of the jury in determining whether he exercised cáre according to the circumstances.”

It is also claimed by defendant that plaintiff is barred from recovery by reason of the fact that the deceased was guilty of contributory negligence. The only eye-witness to the accident was the crossing watchman, who testifies positively that the deceased approached the crossing at a rate of speed which he estimates at between thirty-five and forty miles per hour, and, despite his (the watchman’s) efforts to stop him, drove on to the crossing without slackening his speed or making any attempt to stop, look and listen. As we have already said, since O’Neill was killed, he is presumed to have stopped, looked and listened. It is claimed, however, that the court should have ruled as a matter of law that the testimony of Dornsife, the watchman, overcame this presumption and convicted O’Neill of contributory negligence. The rule applicable to cases of this character is laid down in Patterson v. The Railway Co., 210 Pa. 47, as follows: “The plaintiff was entitled to go to the jury on the presumption that the deceased did his duty to stop, look and listen before driving on the tracks. Whether that presumption was rebutted was for the jury, unless the evidence to the contrary was clear, positive, credible and either uncontradicted or was so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside- as a matter of law.”

The law relative to this subject was considered at length and laid down in the following language by the Supreme Court in Kelly v. The Director General of Railroads, 274 Pa. 470: “Presumptions are only intended to take the place of facts and cannot be relied upon where the facts are shown: Chalfant v. Edwards, 173 Pa. 246, 252; Cohen v. Phila. R. T. Co., 228 Pa. 243, 247; Williams v. Metropolitan Edison Co., 267 Pa. 158, 161. But where a presumption in favor of a party entitles him to have his case submitted to the jury, it cannot be withdrawn from them merely because the other gives evidence tending to rebut that presumption: Spear v. The P. W. & B. R. Co., 119 Pa. 61, 69; Doud v. Hines, 269 Pa. 182, 185. ‘The presumption of a fact in law, which carries a case to a jury, necessarily leaves them in possession of the case. True, the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the court. The force of the evidence may or may not be sufficient to convince them that the natural presumption arising from human instinct is repelled. But, before they can come to this- conclusion, they must consider the circumstances under which the repelling witnesses testify. They may be such as not to convince a rational mind that the deceased heedlessly rushed into danger, or the character of the witnesses and their appearance before the jury may render them unworthy of belief; consequently, the jury only can determine the fact put in issue by the presumption of law:’ Pennsylvania R. R. Co. v. Weiss, supra, page 449. In determining whether the facts are so clearly established that a court can say as matter of law that the presumption is rebutted, the proper criterion is whether a verdict in favor of the party relying upon the presumption would be permitted to stand, or whether the court would be bound to set it aside as against the evidence in the case.”

We feel that this case comes within the language herein quoted, and that we cannot, therefore, sustain the motion for judgment n. o. v.

The motion for a new trial is herewith overruled and the motion for judgment n. O. V. is herewith denied. From M. M. Burke, Shenandoah, Fa.


source: Caselaw Access Project

author: Chase, P. J.,

license: Public Domain

text:
    Matthews v. Morrisdale Coal Company et al.

      Workmen’s compensation — Mines and mining — Bituminous mines — Gaseous mines — Misdemeanor.
    1. Rule 25 of article 25 of the Bituminous Act of June 9, 1911, P. L. 827, making it a misdemeanor to fail to properly tamp charging holes in mines, applies only to gaseous mines.
    2. If a workman fails to tamp a hole in a non-gaseous mine, he is not guilty of a misdemeanor, and, if he is injured in so doing, he is not barred from recovery under the Workmen’s Compensation Act,
    Appeal from award of the Workmen’s Compensation Board. C. P. Clear-field Co., Sept. T., 1927, No. 587.

      Edward J. Thompson, for claimant.

      1Sell, Boulton & Forsyth and Harry S. Nesbit, for defendants.
    Oct. 19, 1927.
   Chase, P. J.,

The appellant in this case contends that the claimant is not entitled to the award of compensation because the facts found by the referee, as affirmed by the Compensation Board, show that the claimant was violating rule 25, article XXV, of the bituminous mine laws at the time of the accident. The article of the mine law in question reads as follows: “In gaseous mines, shot-firers or any other person charging holes for blasting shall use incombustible material for tamping. All holes, before being fired, shall be solidly tamped the full length of the hole. Any person who violates this rule shall be guilty of a misdemeanor.” The referee and the Compensation Board held that this rule relative to tamping applies only to gaseous mines and that it does not apply in this case, since the mine in which the claimant was injured was a non-gaseous mine.

It is unnecessary to recite the finding of facts by the referee, as it is agreed by all parties in interest that the finding of facts by the referee are correct and that the only issue raised is whether or not the section of the mining law above indicated has application to a non-gaseous mine. If so, the claimant would not be entitled to compensation.

In interpreting this clause, it is to be kept in mind that the principle of law that the clause being penal in its nature, it must plainly appear from the language used therein that it makes the particular conduct of the claimant, as found by the referee and not disputed, a violation of its provisions; or, in other words, that the provision must receive a strict construction and any doubt must be resolved in favor of the claimant.

Another principle of law which is well settled is that the Workmen’s Compensation Act, being remedial legislation, is to receive a liberal construction in favor of claimants.

As to the extent [to which] this principle of law first above stated goes, it is only necessary to call to mind that, in the trial of a cause for commission of a misdemeanor, unless a jury finds that there has been a commission of the misdemeanor in question from the facts in the case beyond a reasonable doubt, the jury must acquit, and if it appeared to a trial judge in the trial of a cause that the language of the act alleged to have been violated is such that it is not clearly indicated that, admitting the testimony in the case as being true, whether or not it would fall within a violation of the statute or provision, it would be the duty of the court to discharge a defendant; and, as we view it, under the authority given in the Workmen’s Compensation Act to the referee and the board in determining whether or not a particular case is compensable, or where the question of non-compensability is raised solely upon the proposition that the claimant was engaged, while in the course of his employment, in so conducting his or her work that it would be a misdemeanor because of the manner of performing the same, the same rule of law should be applied by the referee as would govern the trial judge in disposing of the issue, if before the court on indictment.

In interpreting the provision under discussion in the instant case, the court is not aided to any extent by the Bituminous Law, Act of June 9, 1911, P. L. 827, because of the act covering the subject of mines, both gaseous and non-gaseous, and some provisions setting out clauses which by the language clearly appear to apply to all mines, while other clauses clearly appear to have application only to particular kinds of mines. And, again, because of the principle of law that a penal statute must either stand or fall in the interpretation of it solely upon the interpretation of the language in the statute or provision itself, and cannot be interpreted by extraneous matter; and if there is doubt arising out of the language itself as to whether it has particular application to the facts under discussion, the conclusion as a matter of law must be yielded to that the act does not apply.

The first sentence of the provision under discussion reads as follows: “In gaseous mines, shot-firers or any other person charging holes for blasting shall use incombustible material for tamping.” Of course, no question can be raised that this sentence applies exclusively to gaseous mines.

The sentence following reads: “All holes, before being fired, shall be solidly tamped the full length of the hole.” It cannot be denied but that the subject introduced in this provision is gaseous mines. No one would, in the common ordinary interpretation of this clause as we view it, be led to the conclusion that the subject under discussion in this provision is coal mines generally. The impression made on the mind is that it has reference to a particular kind of mine, namely, a gaseous mine. However, the appellant claims that the sentence “all holes, before being fired, shall be solidly tamped the full length of the hole” has reference to all holes prepared in all mines. We do not feel that this sentence in its ordinary interpretation bears that construction. There is nothing in the sentence itself which would indicate that it has reference to all mines; the most that can be said is that it speaks of all holes; uses the term “all holes.” Naturally, the question arises, all holes where? In arriving at an answer to that question, in view of the interpretation to be given to a provision which is made a misdemeanor, we must look within the four corners of the provision itself for the answer, and we find it in this case in the two words “gaseous mines.” So that the words “all holes” has reference to holes in gaseous mines which are being prepared for blasting purposes. That is the safe and justifiable construction as gathered from the language of the provision. A construction which would give the effect to this sentence under discussion as having reference to all mines borders on the doubtful and questionable interpretation which the law will not permit.

The last sentence in the provision, “any person who violates this rule shall be guilty of a misdemeanor,” adds force to the conclusion herein arrived at. It is noticed that this provision uses the words “this rule.” If the interpretation requested by the appellant in this case was given to this provision, it would be necessary to determine that the legislature inadvertently used the word “this” instead of the word “these,” and, as we understand the law in interpretation of statutes of this character, it is not permissible to read into a provision something that does not appear in the provision itself in the interpretation thereof. That is in effect, as we.view it, what the appellant asks the court to do in this appeal, in so far as the second sentence of the provision under consideration is concerned; and as to this last provision, it asks the court to go a step further by seeking to have the court substitute a word for and in the place of a word which appears in the provision, which would as a matter of fact change the meaning of the provision entirely when it is sought to have the court arrive at the conclusion which would compel the taking out of the word “this” which appears in the provision and substitute the word “these,” and that would be the effect and force if the conclusion was arrived at in this issue which the appellant contends for herein. As the court views it, this provision under consideration, under the rules of law and the proper interpretation to be given thereto, is that all the court can say as a matter of fact is that this provision has application solely to gaseous mines; that any conclusion which would extend the provision to extend to all holes in all mines which are prepared for blasting purposes would be a very doubtful construction, which would require the violation of the provisions of the law as to the interpretation of penal statutes.

As the proposition that the Workmen’s Compensation Act, being remedial legislation, is to.receive a liberal construction in favor of the claimant possibly adds no force to the conclusion herein arrived at and would possibly have no hearing upon the determination of this rule one way or the other, it will not be discussed.

Now, Oct. 19, 1927, the findings of fact and conclusions of law and the award of the Compensation Board are affirmed and judgment will be directed to be entered in accordance with the decree of the court upon counsel presenting the proper form to the court, with costs of this proceedings.

Exception noted and bill sealed to the Morrisdale Coal Company, defendant, and Pennsylvania Bituminous Casualty Company, insurance carrier.

From John M. Urey, Clearfield, Pa.


author: Landis, P. J.,

text:
    Evans, Trustee, v. Witman.

      Replevin — Lien for storage — Practice.
    1. The law assumes that when property is placed in storage the owner expects to pay for the storage, but whether, under the circumstances, the parties intended that storage was to be paid is for the jury.
    2. Where a plaintiff gives a bond and causes a writ of replevin to Issue against a person having possession by virtue of a claim of lien, and under it the property is given up to him, the question of whether or not the defendant has a lien must be settled by a jury trial, and a judgment for want of a sufficient affidavit of defense cannot be entered.
    Replevin. Rule for judgment for want of a sufficient affidavit of defense. C. P. Lancaster Co., Aug. T., 1927, No. 18.

      Charles W. Eaby, for plaintiff; K. L. Shirk, for defendant.
    Oct. 8, 1927.
   Landis, P. J.,

This was an action of replevin. In the plaintiff’s statement it is averred that Isaac M. Christ was duly adjudicated a bankrupt on April 7, 1927, and Joseph T. Evans, the plaintiff, was duly elected and qualified as his trustee; that at the time of the adjudication, Christ was the owner of a Ford automobile, which was in the possession of Henry Wit-man, the defendant, and that when the plaintiff demanded possession of the automobile, the defendant refused to deliver it up. It is alleged that the automobile was worth $125. The defendant delivered the car to the sheriff, under the writ, and did not file a counter-bond.

The defendant in his affidavit of defense does not claim to be the owner of the car, but sets up as a defense that be has a lien for storage to the amount of $60 against it.

The 6th section of the Act of April 19, 1901, P. L. 88, provides that “the declaration and affidavit of defense as originally filed, or as amended by leave of court, shall constitute the issues under which, without other pleadings, the question of the title to, or right of possession of, the goods and chattels, as between all the parties, shall be determined by a jury. If any party be found to have only a lien upon said goods and chattels, a conditional verdict may be entered, which the court shall enforce in accordance with equitable principles.”

In Scholing v. Grogg, 38 Lanc. Law Rev. 533, this court has held that “the law assumes that when property is placed in storage, the owner expects to pay for the storage; but whether, under the circumstances, the parties intended that storage was to be paid is for the jury.”

In replevin, nothing can be tried but the right of possession to the property in controversy, and a claim of lien is not sustainable unless the lien is established either at common law, by statute or by agreement of the parties: Mitchell v. Standard Repair Co., 275 Pa. 328. But where a plaintiff gives a bond and causes a writ of replevin to issue against a person having possession by virtue of a claim of lien, and under it the property is given up to him, the question of whether or not the defendant has a lien must be settled by a jury, and under the Act of 1901 it can only be settled upon a trial. Therefore, under such circumstances, a judgment for want of a sufficient affidavit of defense cannot be entered before such a trial, for the bond stands for the property replevied, and if the lien is found to be in favor of the defendant, he can in this way recover the amount of it.

This situation is entirely different from that in which the defendant, giving a counter-bond, retains possession, and afterwards, on the face of the record, it is conceded that he has, at best, only a lien.

I do not think that at this time judgment should be entered in favor of the plaintiff, and, therefore, this rule is discharged. Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Reno, P. J.,

text:
    Commonwealth v. Wimmer.

      Criminal law — Waiver of defects in proceedings before committing magistrate — Trial upon merits.

      1. Where a defendant in a criminal prosecution has entered a plea and gone to trial on the merits, all defects in the proceedings before the committing magistrate are waived.
    2. ■ In such a case, the defendant cannot have the judgment against him arrested because the committing magistrate held a preliminary hearing at a place outside of his jurisdiction.
    Motion in arrest of judgment. O. & T. Lehigh Co., Sept. T., 1927, No. 19.

      Dillinger & Schneller, for defendants and .motion.

      Orrin E. Boyle, District Attorney, for Commonwealth.
    Nov. 21, 1927.
   Reno, P. J.,

Defendants were indicted for burglary. They pleaded not guilty. The Commonwealth established the commission of the crime, defendants’ participation in it and their signed confessions. The jury convicted them. They are guilty beyond all doubt.

Upon cross-examination of Commonwealth’s witnesses, defendants established that the committing alderman held the preliminary hearing at a place outside of his jurisdiction. Upon that circumstance they based a motion for discharge at the conclusion of the Commonwealth’s case. The motion was overruled. The overruling of that motion is made the basis of the motion in arrest of judgment which is now before us.

If defendants had moved to quash the indictment upon the ground that the proceedings before the alderman were irregular, there is respectable authority for sustaining the motion: Com. v. Kurz, 14 Dist. R. 741. Certainly, they would have been released in a habeas corpus proceeding: Com. v. Brennan, 193 Pa. 567. But having entered a plea and gone to trial upon the merits, all defects in the information, warrant and proceedings before the committing alderman were cured: Com. v. Schoen, 25 Pa. Superior Ct. 211.

Now, Nov. 21, 1927, the motion in arrest of judgment is overruled and discharged.

From Edwin L. Kohler, Allentown, Pa.


author: Stearns, J.,

text:
    Byer’s Estate.

      Jurisdiction, O. C. — Ownership of funds in possession of third person— Issue to Common Pleas — “Substantial dispute” — Proof—Gift mortis causa— Presumption. , ^
    1. Where there is a substantial dispute as to the ownership of funds or property between an administrator, who has never had possession of them, and one in possession claiming them as a gift from decedent, the Orphans’ Court has no jurisdiction, but must grant an issue to the Common Pleas.
    2. Such substantial dispute does not exist, however, where it appears that the property consists of stock, notes and bank books in the name of decedent, kept in a room occupied by her in respondent’s house, and the respondent claims by gift executed by delivery of possession by decedent two days prior to her death, but no proof thereof was given other than the mere formal averment of the fact in the answer filed by claimant, who was an incompetent witness.
    3. Mere possession of such securities by claimant does not raise a presumption of a gift mortis causa.

    Exceptions to master’s report. O. C. Phila. Co., Oct. T., 1926, No. 3992.

      Jacob Weinstein and Maurice J. Speiser, for respondent, exceptant.

      Harry Shapiro, for petitioner, contra.
    June 29, 1928.
   Stearns, J.,

Respondent challenges the jurisdiction of the Orphans’ Court in the present controversy. Decedent in her lifetime was possessed of personal property consisting of shares of stock in various corporations, promissory notes and of cash deposits in a bank. All stood, and still stand, in her name. After the death, possession of this property was discovered in the respondent, a stranger to the blood, who was the proprietor of the rooming-house where decedent roomed. Petitioner, the administratrix, secured a citation on the respondent to show cause why the property should! not be delivered to the administratrix. The answer admits all of the above facts, but alleges that two days prior to the death the decedent made a gift, donatio causa mortis, to the respondent. A replication was filed and the matter was referred to a master, whose report is now before us for confirmation.

It is undoubtedly a correct statement of law that where there is a substantial dispute as to the ownership of funds between an administrator, who has never had possession of them, and a person claiming them as a gift from the decedent, an issue should be granted to the Common Pleas. The Orphans’ Court has no jurisdiction: Blaszcak’s Estate, 90 Pa. Superior Ct. 589; Williams’s Estate, 236 Pa. 259. Under the facts before us, does a “substantial dispute” exist? Can it be held to exist where the dispute is merely a pleaded one? (See opinion of Mr. Justice Simpson in Fleming’s Estate, 265 Pa. 399.) An examination of the authorities convinces us that the burden is on the respondent to establish a prima fade title. A mere allegation of gift donatio causa mortis by one who is himself incompetent to testify does not oust the jurisdiction of this court and preclude our examination of the facts. As the record reveals that no proofs were offered by the respondent, he may not rely on his allegation in his answer, the same having been traversed by the filing of the replication. As no dispute is shown to exist, the property passes into the estate for lawful administration and distribution. If, however, the claimant’s proofs are such as to establish a prima fade or colorable title, then this court is unable to decide the question of fact, and thereupon grants an issue to the Common Pleas.

This was specifically ruled by our present Chief Justice in Williams’s Estate, supra, where he quotes with approval the following excerpt from Cutler’s Estate, 225 Pa. 167, page 207: “If at testator’s death the property is shown to have been in his possession, or if for any other reason it was presumptively his, a mere denial of his ownership, unsupported, will not oust the court'of its jurisdiction, but the court may proceed with its investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists.”

While the certificates, notes and bank-book were not shown to have been in decedent’s possession at the time of her death, yet the fact that they stood in the name of decedent, and still so stand, is prima facie evidence that they belong to the estate: Williams’s Estate, supra, 272, Bank deposits are prima facie the money of the depositor: Qualters’s Estate, 147 Pa. 124; Gaffney’s Estate, 146 Pa. 49; Crosetti’s Estate, 211 Pa. 490. Certificates in the name of a person import ownership in him: Paxson’s Estate, 225 Pa. 204. These principles are reviewed, and admirably stated, by our own President Judge in Cameron’s Estate, 23 Dist. R. 1074, wherein he held that where bonds are registered in the name of decedent, but have been taken possession of by a third person under a claim inter vivos, such person must first establish a prima facie right. ■

With these principles as our guide, we have carefully reviewed this record. As the petitioner proved a prima facie case, and the respondent offered no testimony whatsoever, we do not propose to rule upon the various questions raised concerning the rules of equity practice. We cannot refrain from observing, however, that counsel would have done better to have heeded the requests of the master for more detailed evidence concerning the facts and surrounding circumstances. However, we are able to arrive at our decision upon the record as presented.

Before the master, counsel for the respondent admitted possession of the stock, notes and bank-book, and that they all were, and still are, in the name of the decedent; he also admitted that decedent was a roomer in the respondent’s house, and that the decedent had kept the securities in a box in her room in that house; evidence was produced to show that the decedent was the registered owner of the securities in question on the books of the various corporations. Petitioner, by these admissions and proof, was relieved of further evidence, and rested. Respondent declined to offer any testimony, and moved to dismiss the petition. He stated that he relied on Gourley v. Linsenbigler, 51 Pa. 345, and O'Donnell v. Gaffney, 22 Pa. Superior Ct. 316, holding, in effect, that a valid gift donatio mortis causa may be made without formal assignment. No one disputed this. The error into which respondent fell was in assuming that the mere possession of securities, standing registered in the name of another, raises a presumption of a gift de mortis cama. Why not a presumption that he held them for safekeeping only, or for some other logical and legal reason? All he relies upon is his naked averment in his answer, which, as we said above, is a self-serving averment of an interested and incompetent witness. After the petitioner proved her title, and that the property was “presumptively the decedent’s,” the burden fell upon the respondent to establish, by competent testimony, a prima facie title. As he failed to do this, no “substantial dispute” is shown to have existed, and respondent must turn over the personal property in question to the petitioner as administratrix of this estate.

That the master may have altered his original opinion upon exceptions of petitioner was entirely within his province. This is the very purpose and intent of exceptions to all judicial procedure and decision. Upon the amended report and exceptions thereto by respondent, it was the duty of counsel for respondent to have argued the exceptions and given the master the benefit of his thought and labor. Having elected not to argue them, the master, after due consideration, ruled that there was nothing in the exceptions to cause him to alter his decision, and he thereupon filed the entire record for our consideration. We find no substantial error by the master in this procedure.

We, therefore, dismiss the exceptions to the master’s supplemental report and confirm the same, and make the following

Decree.

And now, to wit, June 29, 1928, it is ordered and decreed that the exceptions filed to the supplemental report of the master be dismissed and the report confirmed.

It is further ordered that the respondent, Samuel Archess, do, within ten days from the date of this decree, deliver to Ida Goldstein, administratrix of the said Anna Byer, deceased, full and complete physical possession of all the property claimed by said administratrix, as particularly set out in the petition for citation in this case, and without prejudice to the said respondent to appear at the audit of the account of the said administratrix and present whatever lawful claims he may have to the property in question.

It is further ordered that said Samuel Archess, respondent, pay all the costs of this citation, including stenographer’s bill, witness fees and master’s fee of $500.

Gest and Van Dusen, JJ., did not sit.


author: Martin, P. J.,

text:
    Bryant v. Bryant et al.

      Evidence — Parol evidence — Receipts—Joint obligations — Payment.
    1. The parol evidence rule as to written contracts does not apply to mere receipts; but this has no application where the receipt itself contains provisions stating a contract between the parties, although the paper is signed by only one of them.
    2. The test to determine whether an alleged parol agreement comes within the field embraced by a written one is to compare the two and determine whether parties situated as were the ones to the contract would naturally and normally include the one in the other, if it were made.
    3. Where one of several joint obligors pays and discharges his obligation, all are discharged.

      4. In an action on an oral promise to pay plaintiff what he would have inherited from a deceased uncle under the intestate laws had the uncle died without a will, provided plaintiff refrained from contesting the will, plaintiff cannot recover if it appears that he had nothing upon which to found a contest.
    Motion to take off non-suit. C. P. No. 5, Phila. Co., Dec. T., 1925, No. 10504.

      Frank F. Truscott and WilliaAn N. Trimkle (Bell, Trinkle, Truscott & Bell with them), for plaintiff.

      C. J. Hepburn and M. Hampton Todd, for defendants.
    Feb. 17, 1928.
   Martin, P. J.,

The plaintiff sued the defendants on an oral promise to pay him what he would have inherited from a deceased uncle under the intestate laws, had the uncle died without a will, provided he, the plaintiff, refrained from contesting the will and assisted and supported the defendants in maintaining the will. At the conclusion of the presentation of plaintiff’s case, the court struck out certain testimony and granted a compulsory non-suit on motion of defendants, which the plaintiff has now moved to take off.

William Bryant died on May 81, 1923, having made a will, under the terms of which the bulk of his estate was left in trust for the defendants, Mary H. Bryant, his widow, Eleanor Bryant Lamb, a daughter of his wife by a prior marriage, and Mary Lamb du Sossiot, who was a daughter of Mrs. Lamb. The plaintiff was given a life interest in $75,000 under the terms of the will.

The plaintiff relied for his recovery upon an alleged conversation which he said took place on June 2, 1923, with Mrs. Lamb, a defendant, in which he asserted she said to him, “Howard, your uncle left a will and in the will he left you the interest on $75,000.” “I said, ‘Why, Nellie, I am surprised; he told me he would never make a will.’ ” “I said, ‘He also said that you had been going to Todd's office, trying- — going to different friends and asking them to try and get him to make a will,’ and he said, ‘Under no conditions would he make a will.’ ” That Mrs. Lamb said, “You go along with us and help us in every way to sustain the will and in no way try to break it, and I will take care of you.” “I said, ‘That don’t mean a thing to me.’ ” She said, “If you in no way try to break it, but help us in every way sustain it, Mrs. du Sossiot and your aunt Mary and myself will give you the difference between the $75,000 and what you would have gotten had there been no will.” “I said,' ‘That was very satisfactory to me,’ and she said, ‘That settles it;’ ” and I said, “Yes, that is all right.” He testified that on the following day he saw Mrs. Bryant and told her the conversation with Mrs. Lamb, and she replied, “Well, Nellie said something about that to me,” and “she said, ‘Well, that was all right, and anything Nellie says is all right by me, now and now on.’ ” He testified that on the next day he saw Mrs. du Sossiot and told her the conversation with Mrs. Lamb and Mrs. Bryant, and that Mrs. du Sossiot said, “That is all right; anything mother does is all right by me, not only now but any time in the future.”

A number of payments were made to the plaintiff by Mrs. Lamfi and Mrs. Bryant, some of which were claimed to have been as gifts and $25,000 of which was claimed to have been in discharge of the agreement with the plaintiff not to contest the will. The final payment on this account was made in January, 1925, by Mr. Todd, attorney for Mary H. Bryant, and this last payment amounted to $11,500. The plaintiff signed a receipt for this final payment, which reads as follows:

“William Bryant’s Estate.
“Received, Philadelphia, January 15, 1925, from Mary H. Bryant, widow of William Bryant, eleven thousand five hundred dollars, which, with thirteen thousand five hundred dollars heretofore paid by her to me, makes in all the sum of twenty-five thousand dollars received from her, and in consideration of which payments I hereby waive the right of appeal from the decree of the Register of Wills for the County of Philadelphia admitting to probate the will of William Bryant and the granting of letters testamentary thereon to the executors therein named. And I hereby ratify and confirm the same and agree to be bound thereby; and further for the consideration aforesaid I agree not to appeal from the said decree of probate or in any way or manner contest the validity of- said will.
“In Witness Whereof I have hereunto set my hand and seal the day and year first above written.
(Sgd) Howard BRYANT [Seal]
“Signed, sealed and delivered in the presence of
“M. Hampton Todd
“Robert E. Erskine.”

At the trial, considerable testimony was introduced as indicating the mental and physical condition of the testator, the circumstances under which the will was made, and the relations of the testator with the beneficiaries named in the will. It also appeared that in a contest raised by certain other relatives, the plaintiff had joined the defendants in an answer defending the validity of the will. ' That suit was settled.

In granting the non-suit, the court was influenced by the decision in Wagner v. Marcus, 288 Pa. 579, where it was held that “the parol evidence rule as to written contracts does not apply to mere receipts; but this has no application where the receipt itself contains provisions stating a contract between the parties, although the paper is signed by only one of the parties.”

On page 583 of the opinion in that case, Mr. Justice Shaffer says, quoting from Gianni v. Russell, 281 Pa. 320: “Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best but the only evidence of their agreement; . . . and unless fraud, accident or mistake be averred, ... its terms cannot be added to nor subtracted from by parol evidence. ... If it appears to be a contract complete in itself, ‘couched in such terms as to import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.’ ”

“The test to determine whether the alleged parol agreement comes within the field embraced by the written one is to compare the two and determine ‘whether parties, situated as were the ones to the contract, would naturally and normally include the one in the other, if it were made.’ ”

In the instant case, the receipt given for the balance of the $25,000 clearly states the undertaking of the plaintiff with respect to the will in question, and it follows that had there-been any additional obligation on the part of the defendants, or payments to be made by them on account of this contract of the plaintiff, it would have appeared in this receipt. We cannot adopt the view that this receipt being given to Mary H. Bryant was only a discharge of any obligation of hers to the plaintiff on account of the subject-matter of this contract. The plaintiff has sued the defendants jointly upon what he claims is a joint undertaking, and where one of the joint obligors pays and discharges his or her obligation, all are discharged.

It may well be that, barring any consideration of this receipt and the contract of the parties as embodied therein, the plaintiff has not submitted sufficient evidence of a contract to warrant a recovery. The substance of that evidence is that he agreed to refrain from contesting this will at a time when he had nothing upon which to found a contest. When the alleged contract was made he knew of no mental incapacity on the part of the testator at the time of the execution of the will, nor of any undue influence exercised upon him. He only knew of his uncle’s weakened physical condition and of a possibly impaired mental condition at times, together with prior declarations of the uncle of an intention not to make a will, and that possibly some of the defendants were urging him in that direction.

After a careful review of this case, we are persuaded that the non-suit was properly entered.

And now, to wit, Feb. 17,1928, the motion to take off the non-suit is refused.


author: Davison, P. J.,

text:
    Montgomery Township Electors’ Petition.

      Election law — Petition of electors to open ballot-box — Act of April 23, 1327 — Fraud or mistake in counting ballots — Return of $50 forfeit wherei error is substantial.

    Where three electors of an election district post a forfeit of $50 in accordance with the Act of April 23, 1927, P. L. 360, alleging fraud in the computation of the vote hy the election hoard, and the box is opened in response to the petition and a difference of eleven votes is found in the recount, sufficient, if a contest had been instituted and no other errors found, to have changed the result of the election, the forfeit of $50 will be returned to the petitioners.
    Petition of electors to open ballot-box. C. P. Franklin Co., Misc. Docket, vol. K, page 442.

      T. Z. Minehart (of Mineha/rt & Crider), for petitioners.
    Feb. 17, 1928.
   Davison, P. J.,

A petition having been filed, as required by law, alleging fraud'had been committed in said district at said election in the computation of the votes cast therein or in the marking of the ballots, or otherwise in connection with said ballots, the court, as directed by the provisions of the Act of April 23, 1927, P. L. 360, ordered said ballot-box seized and brought into court. The matter was continued until Dee. 17, 1927, and at that time the said ballot-box was opened in court and the parties designated by the court to cause said vote to be correctly counted, D. B. Snively and Harry B. Krebs, examined said ballots in the presence of the judge of said court and correctly counted them and made return thereof to said court, which said return and computation has been filed in said court.

The computation of said vote and examination of said ballots shows no fraud on the part of the election officers of said district at said election, and this fact is so found by the court; and while errors were shown in the counting of said ballot, they were not fraudulent, but' such as would naturally arise from the inexperience of said election officers.

Following the ruling of this court in the matter of the opening of the ballot-box in the Fourth District of Quincy Township, filed Nov. 30, 1927, the money deposited by the petitioners would be forfeited to the County of Franklin, except for one circumstance. While no contest was filed in the matter of the school directors in said township, which would have been the proper course to pursue, if the right to that office was to be questioned, yet we do know as a fact from the returns filed in said election that Fred W. Detrich was returned as elected to said office by a majority of six votes over John G. Palmer in the Fourth Election District of said township. The vote as computed and returned upon the opening of the ballot-box in this one district changed the vote of said parties for said office, so that said John G. Palmer received ninety-one votes instead of eighty-four votes, and said Fred W. Detrich received 111 votes instead of 115 votes, making a difference of eleven votes in favor of said John G. Palmer. No one can tell what the result of the opening of the ballot-box in the other districts of said township would have been, nor, if they had been opened, would it have changed the right of Detrich to hold said office, unless they had been opened before the official count was completed, or unless a contest for said office had been instituted. Under these circumstances there can be no taint on the holding of said office by said Detrich, but as the change in the vote in the boxes opened would have been sufficient, if a contest had been instituted and no other errors found, to have changed the result of the election to that office, we are of the opinion that such petitioners should not have the sum deposited by them forfeited to the county.

And, therefore, Feb. 17, 1928, the Prothonotary of Franklin County is hereby directed to return to said petitioners said sum of $50 deposited with him in said matter.

From King Alexander, Chambersburg, Pa.


author: Brownson, P. J.,

text:
    Frye v. Lanning.

      Justice of the peace — Jurisdiction — Damages to automobile — Acts of March 22,181b, and July 7,1879.

    1. Under the Acts of March 22, 1814, 6 Sm. Laws, 182, and July 7, 1879, P. L. 194, a justice of the peace has jurisdiction of a case in which a plaintiff claims damages to his automobile as a result of the defendant’s running into him with another automobile.

      Constitutional lam — Amendment of act — Damages to automobile — Receipted bill — Defective title — Act of June lb, 1928.

    2. The Act of June 14, 1923, P. L. 718, which purported to amend section 36 of the Act of June 30, 1919, P. L. 678, by requiring a receipted bill for repairs to be produced in an action before a justice of the peace for damages to an automobile, is unconstitutional because the attempted amendment is not covered by the title of the amending act.

      Certiorari. C. P. Washington Co., Aug. T., 1927, No. 58.

      R. W. Knox, for plaintiff; J. R. McCreight, for defendant.
    Oct. 17, 1927.
   Brownson, P. J.,

The plaintiff brought this action before a justice of the peace to recover for damages to his motor-vehicle, alleging that the defendant “did . . . drive a motor-vehicle ... on the public highway . . . and in passing the motor-vehicle of [plaintiff] did strike, wreck and cause damages to the amount of $47.35.” The action appearing to be one for an injury directly inflicted upon plaintiff’s property by the force of an act done by the defendant herself, the justice would have jurisdiction of it under the Acts of March 22, 1814, § 1, 6 Sm. Laws, ,182, and July 7, 1879, § 1, P. L. 194: Sprout v. Kirk, 80 Pa. Superior Ct. 514; Carlson v. Johnson, 2 D. & C. 109, and cases therein cited.

The plaintiff having recovered a judgment for $47.35, the defendant sued out a certiorari, and she has excepted to the record on the ground “that said justice was without jurisdiction, for the reason that plaintiff did not comply with the requirements of the 36th section of the Act of [June 30, 1919, P. L. 678, as amended by the Act of] June 14, 1923, P. L. 718,” the transcript of the record not showing that a receipted bill, sworn to by the person who repaired plaintiff’s car, or his agent, was produced and offered in evidence.

Section 36, as originally enacted, merely gave to a person sustaining damages from the use and operation of a motor-vehicle the discretionary right to bring his suit in the county where the injury was sustained and to have the process served in another county. The Act of 1923 purports to amend this section so as to make it provide that such actions may be brought before any alderman, magistrate or justice of the county where the damages were sustained “if the plaintiff has had said damages repaired, and shall produce a receipted bill for the same property, sworn to by the party making such repairs or his agent,” or may be brought in the Court of Common Pleas of said county, and that in either case service of process may be made in another county; the jurisdiction of alderman, etc., being limited in actions so brought to cases involving not more than $100.

Without going into the question whether this amendment was intended to embrace a case like the present, wherein the summons was against a resident of, and was served within, the county in which the justice of the peace has his office (see Sharp v. Boyer, 6 D. & C. 597), or the question whether, if so, it would offend against section 7, article III of the Constitution by making the kind of proof that must be produced depend upon the tribunal before which the action is brought, it is sufficient to say that the attempted amendment of section 86 is wholly inoperative, because not covered by the title of the amending act. That title gives a minute and specific list of the particular matters concerning which it is proposed to amend the Act of 1919, and this matter of suits for damages arising from the use and operation of motor-vehicles is not one of those so specified. The specifications of certain particulars as the subject-matters of the intended amendments was in effect a declaration to legislators and others interested that the body of the bill contained no amendment of the Act of 1919 in any other particular, and thus this was a misleading title: See eases cited in Com. v. Arguello, 7 Wash. Co. Repr. 17, and, also, the cases of Com. v. Barbono, 56 Pa. Superior Ct. 637, 642-3, and Parson v. Downer, 7 Wash. Co. Repr. 28, 9 D. & C. 246. The fact that the very specific statement as to just what the amendments were to consist' of qualified and limited the effect of the preceding recital of the title of the Act of 1919 was overlooked in the case of Campbell v. Krautheim, 4 D. & C. 577.

And now, Oct. 17, 1927, the judgment is affirmed.

From Harry D. Hamilton, Washington, Pa.


author: Potter, P. J.,

text:
    Lybarger et al. v. Haupt.

      Landlord and tenant — Landlord’s warrant — Agreement to pay taxes — Collection of taxes by warrant.

    1. Taxes are not rent unless made so by express agreement.
    2. A landlord's warrant will not lie for the collection of a portion of the taxes on the premises leased unless an absolute agreement can be shown on the part of the tenant to pay the taxes as a part of the rent.
    3. Where the landlord's warrant directs the constable to sell the tenant’s goods levied upon to pay taxes due, the costs and charges, and return the surplus and the constable’s costs upon the sale qf the goods, but the constable does not sell because the tenant had paid the taxes directly to the tax collector, the constable cannot recover the charges from the landlord. In such case, he should have sold the goods and paid the charges and costs out of the proceeds.

      Justice of the peace — Service of process — Attested copy of summons.

    4. In serving process, the constable must serve an attested copy of the summons on the defendant; if he does not do so, the service is invalid.

      Certiorari to justice of the peace. C. P. Union Co., May T., 1927, No. 50.

      Lee Francis Lybarger, for plaintiffs; M. E. Shaughnessy, for defendant.
    Nov. 18, 1927.
   Potter, P. J.,

This is a writ of certiorari taken out by the defendant, directed to C. M. Steese, a justice of the peace at MifHinburg, directing him to transmit to us the record of the proceedings had before him in the above-stated case. He has done so, and in our consideration' of the controversy thus brought before us, we must render our decision from matters embraced in the record alone. The merits of the case cannot be considered by us in this proceeding.

From this record we learn that the defendant, J. Katharine Haupt, is the owner of a farm in Union County, and that one Harold Wenrick was her tenant. It is stated in the record that there was a written agreement between this landlady and her said tenant, by the terms of which he was to' pay the half of the taxes assessed against the farm, although we have no record of this alleged agreement among the files of the case. It seems this tenant neglected to pay his alleged half of the taxes, so this landlady applied to L. F. Lybarger, who is one of the justices of the peace in and for Miffiinburg Borough, for a landlord’s warrant by which to make a distraint upon the personal goods of her tenant for his alleged half of the taxes. The warrant was issued and was served by D. E. Raker, who is a constable in and for Mifflin-burg, who then and there levied upon certain personal property of this tenant. He put up sale bills, and when he went to hold the sale he was informed that the sum claimed as taxes, viz., $49.42, had been paid to the tax collector, and he apparently held no sale.

The costs of Justice Lybarger and Constable Raker on these proceedings were $15.20, which were not paid. We presume this defendant refused to pay them. At all events, the justice and the constable brought suit against her before Justice C. M. Steese for the amount claimed by them. After hearing the testimony, Justice Steese rendered judgment for the plaintiffs and against the defendant for the sum of $10.70, upon the rendition of which judgment this certiorari was taken out and the records were brought before us.

A landlord’s warrant is one of the proper remedies for the collection of rent in arrears, but can taxes be collected by the landlady from her tenant by this method of procedure?

Taxes are not a rent unless made so by an express stipulation: Becker v. Werner, 98 Pa. 555. A landlord’s warrant is available for the collection of rents and nothing else, generally speaking. It is so provided by statute. Where a lessee covenanted not to engage in a certain business in penalty of $100, to be paid in the nature of a rent in certain monthly instalments in addition to the regular rent, this penalty cannot be distrained for: Latimer v. Groetzinger, 139 Pa. 207; Brisben v. Wilson, 60 Pa. 452; Detwiler v. Cox, 75 Pa. 200. And where rent was reserved in kind, the landlord could not substitute for it a promissory note of the tenant for a sum of money and dis-train for such money: Warren v. Forney, 13 S. & R. 52. And distress does not lie for apportioned rent: Allegaert v. Smart, 2 W. N. C. 397. But where by the terms of a written lease the tenant is obligated to pay a part or the whole of the taxes, distraint will lie for the recovery of the sum unpaid: Becker v. Werner, 98 Pa. 555; Pettebone v. Murphy, 14 Luzerne Repr. 339.

The power to distrain being incident solely to that which is strictly rent, the landlord can make the tenant’s goods liable in distress only if and to the extent that his demand is rent, properly speaking, or if and to the extent that the agreement of the parties has made it rent that is enforceable by distress: Deisher v. Amusement Co., 7 Berks Co. L. J. 197; Latimer v. Groetzinger, 139 Pa. 207, and in order to be effective, the intention disclosed by a lease to make collectible by distress as rent sums expended for improvements and betterments and the like must be clear, as the right of distress cannot be given by implication: Deisher v. Amusement Co., 7 Berks Co. L. J. 197; Latimer v. Groetzinger, 139 Pa. 207; McCann v. Evans, 185 Fed. Repr. 93; Family Laundry Co. Case, 193 Fed. Repr. 297.

So that in order to enable a landlord to distrain for any item except rent, his power to do so must clearly appear from the lease or agreement. We can find no lease or anything like it among the records of this case. What, then, is there to enable this landlady to distrain her tenant’s personal goods for his alleged share of taxes? The warrant states there was an agreement by virtue of which he is under obligation to pay these taxes, but where is this alleged agreement? And if there is one, does it give her the power to distrain in this case? Perhaps he is under obligation to pay them, and perhaps he is not. We do not know. And should he be under obligation to pay the said taxes, is the sum to be paid as a common debt, or is there an agreement that the landlady shall distrain for them? We have nothing to show any such authority on her part, in the absence of which we must hold that no such extraordinary authority existed, that the issuance of this landlord’s warrant was not legally authorized, and if this is true, then all proceedings under it are not lawful. Before leaving this branch of the case, we might add that if such an agreement exists, it should be attached to and form a part of the records of this case, so that we might be able to determine whether or not this tenant was subject to a distress for his part of the taxes, as alleged.

Then again, if the warrant is legal, we find it authorized the constable to sell the tenant’s personal goods levied upon to pay the taxes due, the costs and charges, and to return the overplus, if any, to the tenant. Under this authority of the warrant, supposing it to have been legal, the constable was to get the costs of the justice and of the constable from the sale of the goods levied upon by him. He could not look to the landlady for them unless he could find no property on which to levy. But we find in his return that he levied on sixteen acres of wheat in the ground, two bay horses and two cows, plenty out of which to make his own and the justice’s costs. The record shows that the tenant, after service of the warrant upon him, paid his alleged half of the taxes to the tax collector. Apparently, these costs sued for were not paid by the tenant, but the constable had plenty of property under levy out of which to make them, and he should have done so. It is true the taxes alleged to be due from this tenant, if due at all, should have been paid to the constable, but the fact of them having been paid to the tax collector over the head of the constable did not stop him from proceeding to make them out of the property he had under levy. It is a familiar principle of law that the losing party is responsible for the costs of suits, which applies here as well as elsewhere. Here, the tenant, if the proceedings were regular, was the losing party, and, as such, was liable for the costs of the landlord’s warrant, assuming for the sake of the argument that it was lawful and regular. And these plaintiffs cannot look to the landlady for them. The only instance in which a plaintiff is liable for costs when winning is where it is impossible to collect them from the defendant, in which instance the officers can look to the plaintiff for them, because he instituted the action and sought their services.

And now we come to the return of the constable who served the summons on the defendant. It states: “Served the within writ of summons March 10, 1927, upon the within named defendant by reading same and leaving copy with the defendant. So answers John F. Yeisly, Constable.” This is sworn to before C. M. Steese, J. P., properly. But this is not a legal return.

The Act of July 9, 1901, P. L. 614, which controls the service of legal process in this State, provides for personal service “by handing a true and attested copy thereof to him personally.”

The constable gets two copies of the summons from the justice. The one is marked “original” and the other is marked “copy.” In the service of the summons, he keeps the original. The copy is to be given to the defendant as the act provides. The original is the one on which he makes his return of service to the justice who issues it, which return must be sworn to. The copy should be 'attested by him in the following manner: “I hereby certify this to be a true copy of the original summons issued in this case,” and he attests it by signing his name to it, when it becomes a true and attested copy, of the original summons. That was not done in this case. The return shows no attested copy served upon the defendant, which, of itself, is fatally defective. The courts of this State have universally held so. The act of assembly points out the manner in which legal process must be served, and we must in all cases follow it. When a defendant is to be brought into court, the manner of doing so, as prescribed by law, must be strictly followed. The Act of 1901 points out the manner of service of process by a sheriff on page 615, and on page 619, section 16, it is stated that writs issued by any magistrate, justice of the peace or alderman shall be served in the same manner as similar writs are served by the sheriff.

We have gone to some time and length in passing upon this case in which a small sum is involved. But legal principles are involved in it that may affect larger ones, and we think we should be thoroughly understood on them. We generally very much dislike to disturb the judgment of a justice of the peace, but we have laws to follow, just as justices have, which must be strictly followed.

And now, to wit, Nov. 18, 1927, in accordance with our expression herein contained, the certiorari is sustained and the judgment of the justice of the peace is reversed, to which ruling an exception is noted for the plaintiffs and a bill is sealed. From Charles P. Ulrich, Sellnsgrove, Pa.


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    Commonwealth ex rel. Fetzer v. Nyman.

      Quo warranto — Motion to quash — Suggestion—Conflicting statement of fact.

    1. The quashing of a writ of quo warranto will be allowed only for substantial defects apparent on the face of the proceedings.
    2. Such writ will not be quashed for a defect in the information, for this is amendable.
    3. An objection to a defect in the suggestion, to be effective, must be such as goes to the foundation of the proceeding.
    4. Where a motion to quash a writ of quo wafiranto sets up statements of fact, contrary to those contained in the suggestion of the relator, the former having been sworn to, while those of the motion to quash are not, the court must accept the statements of the suggestion as true and direct the respondent to file an answer to the merits.
    Motion to quash writ of quo warranto. C. P. Centre Co., Feb. T., 1927, No. 108.

      Spangler & Walker, for relator; Gettig & Bower, for respondent.
    Jan. 2, 1928.
   Potter, P. J.,

17th judicial district, specially presiding,

This is a motion to quash the writ of quo warranto instituted by the relator against the respondent.

From the pleadings in the case we gather that one John A. Mann was the duly elected, qualified and acting collector of taxes for the Township of Cur-tin, in Centre County; that on Aug. 10, 1926, because of physical infirmities, he resigned his said office; that on Aug. 24; 1926, the Commissioners of Centre County appointed the relator, Orvis M. Fetzer, as tax collector to fill the vacancy thus created, who legally qualified and gave bond for all taxes by him collected, except for the school taxes of said township, which bonds were duly approved by the court of Centre County.

That this appointee informed the School Board of Curtin Township of his appointment, and that they notified him that they required of him a bond in the sum of $3600 with corporate surety thereon; that he immediately took steps to furnish the bond to them by applying to the American Surety Company of New York for the bond thus required of him; that immediately upon receiving the bond from the said surety company, to wit, on Sept. 27, 1926, he tendered the bond to the school board, which was refused by them, although no objection was made to the amount of it or to the surety.

That, after the tender to them of the said bond, the said school board delivered to him the tax duplicate of the school taxes remaining unpaid for the year 1926; that on Oct. 25, 1926, he again mailed to this school board the said bond, which was not returned to him.

In the absence of proof to the contrary, we must presume that this bond was received in due course of mail by the school board, and its retention by them must be regarded as an acceptance of it, which, as we view the question, would constitute this relator as the duly constituted tax collector of the school taxes of Curtin Township. But we are not' called to pass upon this question in these proceedings.

It seems that subsequently, the exact time of which we do not know nor can we ascertain from the pleadings, this school board appointed the respondent as collector of the school taxes of Curtin Township, who has collected a part thereof. The relator has also collected some of them, has tendered checks for the same to the school board, which checks were returned to him. He has, therefore, brought this action to determine whether he or the respondent is the legal collector of taxes for this township.

No answer was filed to the petition or to the writ, but, instead, we have a motion to quash the writ, by which proceeding we have before us only one side of this contention. The quashing of the writ will be allowed only for substantial defects apparent on the face of the proceedings: Com. v. Getz, 16 Pa. C. C. Reps. 278. We are of the opinion that in order to quash the writ there must be some irregularity in the proceedings by reason of which they become a nullity. Nor can we quash it for a defect in the information, for this is amendable (Com. v. Commercial Bank of Pennsylvania, 28 Pa. 383; Com. v. Swank, 79 Pa. 154), and the defect, if any in the suggestion, must be such as goes to the foundation of the proceeding: Com. v. Steelton Mutual Relief Ass’n, 2 Dauphin Co. Reps. 200. And the denial of a fact stated in the suggestion will not be considered in a motion to quash: De Turk v. Com., 129 Pa. 151.

The motion to quash" does not set up any irregularities in the proceedings. It does, however, set up statements of fact the opposite of those contained in the suggestion of the relator, which are sworn to, while those of the motion to quash are not. Wherefore, in these proceedings, we must accept the statements of the suggestion. At all events, it is not our function in this proceeding to pass upon the merits of the case; however, we could very well do so. Either we will or will not quash, and we think we have hereinbefore stated the law governing the quashing of the writ.

With all due respect to the learned and respected counsel for the respondent, we must say in all fairness that we do not think sufficient grounds for quashing the writ have been set up, and we find none in the entire proceedings. We think the reasons set up involve questions of fact which are the subjects of proper proof at the hearing in open court between the contending parties, when each can produce his proof in maintaining his contention.

And now, to wit, Jan. 2, 1928, the motion to quash is dismissed and the respondent is directed to file his answer to the merits of the case within the legal and usual period of time.