text:
    Fleck-Marshall Company v. Lamparter.
    No. 1.

      J. Andrew Frantz, for rule; Guy K. Bard and Amos E. Burkholder, contra.
    July 7, 1928.
   Groff, J.,

This case is an action in assumpsit, wherein Fleck-Marshall Company, a Pennsylvania corporation, brings suit against Lorenz Lamparter to recover the sum of $503.64, with interest, alleging that the said amount is due from the defendant for a bill of merchandise sold to the defendant at his special instance and request, or at the special instance and request of an agent — not naming him.

Defendant in his affidavit of defense admits the facts set forth in paragraphs 1 and 2 of plaintiff’s statement and denies the facts averred in paragraph 3, and says: “The defendant avers that neither he nor any agent of his ordered or bought any goods from the plaintiff, as set forth in paragraph 3 of the plaintiff’s statement of claim, nor were any goods, as set forth, delivered to the defendant or any agent of his. . . .”

Upon the filing of this affidavit, plaintiff, through his counsel, moved to strike off this affidavit of defense, under section 21 of the Practice Act of May 14,1915, P. L. 483, for two reasons:

“1. The affidavit of defense is in violation of section 6 of the aforesaid Practice Act, since the allegations of fact in plaintiff’s statement of claim are neither specifically denied nor denied by necessary implication.
“2. The affidavit of defense is in violation of section 8 of the aforesaid Practice Act, since the defendant denied generally the averments of plaintiff’s statement of claim and does not answer specifically each allegation of fact in said statement of claim.”

Section 21 of the Practice Act of May 14, 1915, P. L. 483, was amended May 23, 1923, and is found in the Pamphlet Laws of that year at page 325, which reads as follows:

“Section 21. The court, upon motion, may strike from the record a pleading which does not conform to the provisions of this act, and may allow an amendment or a new pleading to be filed upon such terms as it may direct; provided, that such motion to strike from the record any such pleading shall be filed and a copy thereof served upon the party filing such pleading, or his attorney, within fifteen days after a copy of such pleading shall have been served upon the opposite party or his attorney.”

Under this act, the motion to strike off a pleading would apply equally to an affidavit of defense or a statement under proper circumstances.

In examining the Act of May 14, 1915, we find that section 6 reads as follows:

“Section 6. Every allegation of fact in the plaintiff’s statement of claim, or in the defendant’s set-off or counter-claim, if not denied specifically or by necessary implication in the affidavit of defense, . . . shall be taken to be admitted, except as against. . . .”
And section 8 reads as follows: “It shall not be sufficient for a defendant in his affidavit of defense to deny generally the allegations of the statement of claim, or for a plaintiff in his reply to deny generally the allegations of a set-off or counter-claim; but each party shall answer specifically each allegation of fact of which he does not admit the truth, except as provided in sections 7 and 13.”
And section 17 says: “In actions of assumpsit. . . . The plaintiff may take a rule for judgment for want of a sufficient affidavit of defense to the whole or any part of his claim and the court shall enter judgment or discharge the rule, as justice may require. . . .”

It seems to us that it necessarily follows that a violation of the requirements as set forth in paragraphs 6 and 8 of the Practice Act would be reached by a motion of the kind directed by paragraph 17 of the same act. If the averments of facts set forth in plaintiff’s statement are not sufficiently denied in the affidavit of defense, the proper motion would be a motion for judgment for want of a sufficient affidavit of defense, and that the motion under section 21, above referred to, would be used only when the affidavit is deficient in form, which deficiency is apparent on the face of the record. No allegation of such deficiency is set out in the motion for judgment, and no suggestion of it is found in any of the pleadings.

Smith’s Pennsylvania Practice Act, at page 310, contains the following: “An affidavit of defense containing neither an express admission nor a denial of an averment contained in the corresponding paragraph of the statement to which it purports to be an answer, operates as an admission to the averment in the statement under section 6 of the Practice Act of 1915; hence, the existence of such averments in an affidavit of defense is no ground for striking it off under section 21.”

This view, as set out in Smith’s Practice Act, quoted above, is sustained in Herron v. Florence Presbyterian Church, 27 Dist. R. 1025, and if the defendant here has failed to deny any particular averments of fact set out in the statement, it is equivalent to an express admission thereof, and such failure to deny will not cause the affidavit to be pronounced a pleading which does not conform to the provisions of the act within the meaning of section 21, authorizing the striking off of such pleadings from the record, and the proceedings should be under the 17th section of the Practice Act.

In Cameron v. Fishman, 291 Pa. 12, 14, Justice Kephart (speaking of the Practice Act of 1915, as amended) says: “The motion contemplated by section 21 relates to pleadings that do not conform to the Practice Act, or one that is a violation of some rule therein governing pleadings — one that might be termed, as to pleadings, a curable defect apparent on the face of the record, conceding that the act contemplated two separate dilatory pleas. We see no good reason why a motion of this character by the defendant should not have been embraced in an affidavit raising questions of law, if one is filed.”

Thereby indicating that the motion to strike off should be used only where there is a defect in form, and where the defect is apparent on the face of the record, such as where a pleading is not set out in paragraphs and numbered, or where the proper signatures are not appended to the pleading, or where the proper affidavit is not made to the pleading, or from other causes which I will not enumerate.

We are not at this time passing upon the validity of the affidavit of defense, but feel that it conforms with the Practice Act, so far as section 21 and the amendment thereof is concerned.

The plaintiff, to sustain his motion, has cited numerous cases. We have examined all of them. In all except one motions were made for judgment for want of a sufficient affidavit of defense and not to strike off a pleading.

We, therefore, feel it is our duty to discharge the rule granted to show cause why the affidavit of defense should not be stricken off.

The rule is discharged. From George Ross Esbleman, Lancaster, Fa.


source: Caselaw Access Project

author: Groff, J.,

license: Public Domain

text:
    Fleck-Marshall Company v. Lamparter.
    No. 2.

      Andrew M. Frantz, for rule; Guy K. Bard and Amos E. Burkholder, contra.
    Sept. 29, 1928.
   Groff, J.,

:We have before us a motion for judgment for want of a sufficient affidavit of defense. Plaintiff alleges in his statement that, “at the special instance and request of the defendant, or at the special instance and request of the duly authorized agent or agents of the defendant, [plaintiff] sold and delivered to the said defendant or to the duly authorized agent or agents of the defendant, upon premises owned by the defendant on Rock-land Street, in or near the City of Lancaster, Pennsylvania, goods. . . .”

It will be noted by the above that plaintiff does not know if he sold the merchandise to the defendant or to one or more of his agents, nor does he know if the goods were delivered to the defendant or one or more of his agents. He does not even inform the defendant of the name of the alleged agent to whom he sold or delivered the merchandise.

And now he comes into court and asks the court to enter judgment for want of a sufficient affidavit of defense on the ground that the affidavit filed by defendant is vague, indefinite and does not specifically deny the allegations in plaintiff's statement, but denies them generally.

Section 8 of the Practice Act of 1915, P. L. 483, says: “It shall not be sufficient for a defendant in his affidavit of defense to deny generally the allegations of the statement of claim. . . but each party shall answer specifically each allegation of fact of which he does not admit the truth. . . .”

Section 17 of the Practice Act of 1915, P. L. 483, provides as follows: “The plaintiff may take a rule for judgment for want of a sufficient affidavit of defense to the whole or any part of his claim, and the court shall enter judgment or discharge the rule as justice may require.”

We have examined the statement and the affidavit of defense and we feel that the averments in the affidavit of defense are specific enough to prevent judgment and are such that justice requires us to discharge the rule.

“On a rule for judgment for want of a sufficient affidavit of defense, the averments of the affidavit must be taken as true:” Campbell Coal and Coke Co. v. Pennsylvania R. R. Co., 288 Pa. 36.

We, therefore, discharge the rule.

Rule dischargéd. From George Ross Bshleman, Lancaster, Pa.


author: Reno, P. J.,

text:
    Kerchenthal v. Kerchenthal.

      Dillinger & Schneller, for complainant; Smith & Paff, for defendant.
    Feb. 25, 1929.
   Reno, P. J.,

Plaintiff alleges that he and his wife, defendant, own a certificate for thirty shares of the stock of a corporation. The stock is issued in both names. He alleges also that he and his wife are living separately, and prays for a decree requiring defendant to endorse the certificate so that the corporation can issue new certificates of fifteen shares each in the respective names of the parties. In short, he is asking that equity decree a partition of personal property.

Defendant filed preliminary objections to the bill, alleging that the plaintiff has not presented a cause of action which requires defendant to answer. She contends that the stock is held by her husband and herself as tenants by the entireties, and that there is no authority in law for the partition of such an estate held by undivorced parties.

To this, plaintiff answers that a preliminary objection is not the .proper manner of raising the question. But it is. Demurrers in equity are abolished by Rule 15, but Rule 48 provides that defendant may “preliminarily object to the bill for one or more of the following reasons: . . . (7) that, for any other reason, defendant should not be required to answer the facts averred, since he has a full and complete defense to plaintiff’s claim, specifically stated, which does not require the production of evidence to sustain it.” This, we think, permits defendant to raise preliminarily the question whether plaintiff has averred a cause cognizable in equity. Gray v. Phila. & Reading Coal and Iron Co., 286 Pa. 11, and Sauber v. Nouskajian, 286 Pa. 449, although not deciding the precise question here raised, indicate that a preliminary objection under Rule 48 may be employed to perform the functions of a common law demurrer.

Clearly, plaintiff and defendant hold the certificate as tenants by the entire-ties. That estate arises whenever property vests in two persons who are at the time of vesting husband and wife (Rhodes’s Estate, 277 Pa. 450; Sloan’s Estate, 254 Pa. 346; Klenke’s Estate, 210 Pa. 572; Bramberry’s Appeal, 156 Pa. 628, 632), and it includes personal as well as real property: Sloan’s Estate, supra; Gillan’s Exec’rs v. Dixon, 65 Pa. 395; Ballantine’s Estate, 188 Pa. 33. And, there being no legislation which confers upon the courts, law or equity, power to partition or divide an estate by the entireties held by undivorced persons, the bill presents a matter in which we can grant no relief: Biehl v. Martin, 236 Pa. 519.

Now, Feb. 25, 1929, the preliminary objection is sustained, with leave to amend as provided by Rule 49 within ten days.

From Edwin L. Kohler, Allentown, Pa.


author: Wilhelm, P. J.,

text:
    Weaver’s Estate.

      J. O. Ulrich, for petitioner; B. J. Graef and Daniel Boyle, for trustee.
    Jan. 14, 1929.
   Wilhelm, P. J.,

This is the petition of Annie G. Weaver, widow of Alvin Henry Weaver, cestui que trust in the estate of Daniel Weaver, for an order upon the trustee of Alvin Henry Weaver, Elizabeth E. Reinhart, to pay to the said Annie G. Weaver “the principal moneys which she holds as trustee for Alvin Henry Weaver according to the provisions of the said last will and testament of the said Daniel Weaver, deceased.”

It appears from the record that an answer was filed to this petition as well as a replication.

The original petition, which was filed March 29, 1926, the answer and replication could not be found at the time of the hearing, but copies of the petition and answer were produced, and it was proposed that the matter be proceeded with on the copies, and there was no objection to this proposal, and testimony was heard.

It is unnecessary to consider any of the testimony, because the question here at issue arises from an interpretation of the will, and that brings before us the consideration of the second clause of the will, which appoints Elizabeth E. Reinhart trustee for Alvin Henry Weaver, and in part reads as follows:

“And I do hereby appoint my daughter Elizabeth E. Reinhart Trustee of my said son Alvin Henry Weaver, and she is to receive and be paid any part or portion of my estate payable to said Alvin Henry Weaver in money (except the income of the aforesaid lot and block of houses) to hold and to have the same in trust, to invest part or all in real estate or other good investments as she deems best, and pay the interest or income accruing thereon from time to time as it may accrue, and if the said trustee finds it necessary she is also empowered hereby to pay any of the principal monies she has in trust to my said son Alvin Henry Weaver or his widow to keep him or her comfortable, during his lifetime and* after his death pay the said income or interest to his widow if then living and not remarried, and after her death and the death of my wife Angeline, pay the principal sum to the children of my said son Alvin Henry Weaver, in equal shares.”

The petitioner lays particular stress upon the words, “And if the said Trustee finds it necessary she is also empowered hereby to pay any of the principal monies she has in trust to my said son Alvin Henry Weaver or his widow to keep him or her comfortable during his lifetime,” in order to establish her claim that she is entitled to receive from the trustee a part or all of the principal.

This portion of the will is incongruous, because the wife of Alvin Henry Weaver could not be his widow during his lifetime, and it is a fair presumption that the testator or the scrivener inadvertently used the word “widow” when it was intended that the word “wife” should be used, a mistake that could easily be introduced; therefore, if we substitute the word wife for widow, that portion of the will would read: “And if the said trustee finds it necessary she is also empowered hereby to pay any of the principal monies she has in trust to my said son Alvin Henry Weaver or his wife to keep him or her comfortable, during his lifetime and after his death pay the said income or interest to his widow if then living and not remarried, and after her death and the death of my wife Angeline, pay the principal sum to the children of my said son Alvin Henry Weaver, in equal shares,” and the incongruity disappears.

Reading the will as a whole, we are led to the conclusion that Daniel Weaver, the testator, regarded his son, Alvin Henry Weaver, incompetent to manage his financial affairs, because he only gave to Alvin Henry Weaver a life estate in the real estate set apart for him and a life interest in the balance of his estate bequeathed for the benefit of Alvin Henry Weaver and the remaindermen under Alvin Henry. This view is further strengthened by the fact that if any of the principal was to be paid, out of the trust for the benefit of Alvin Henry, the discretion as to that was placed solely in the trustee, and nowhere in the will does it say that the widow of Alvin Henry, or any other person excepting Alvin Henry, is to be paid any portion of the principal during the life of the trust. Therefore, it is apparent that the testator intended that the principal of the portion of Alvin Henry Weaver should remain intact and not be dissipated excepting at the discretion of the trustee, so that his son Alvin Henry should be comfortably maintained during his life, and the widow of Alvin Henry should succeed him in this provision, and the remaindermen receive the whole of the principal at the end of the trust.

Under this construction of the will, it is our duty to dismiss the petition, and thereby deny the right of the petitioner to receive any portion of the principal. On account of the many proceedings had in this estate relative to Elizabeth E. Reinhart acting as trustee of Alvin Henry Weaver, it may be well to note that this decision has no reference to the income arising from this trust estate, which we learn by admission from the trustee on the witness-stand is in her hands and has not been paid over; and the trustee is again warned that it is her solemn duty to pay over all income in her hands to those to whom it should be paid, and to file a proper account of her activities as trustee.

And now, Jan. 14, 1929, the petition filed on March 29, 1926, is dismissed.

Prom M. M. Burke, Shenandoah, Pa.


author: Finletter, P. J.,

text:
    National Shawmut Bank, of Boston, Trustee Under the First Mortgage, &c., v. Hartford Accident and Indemnity Co.

      Carl W. Funk, Henry S. Drinker, Jr., and Dickson, Beitler & McCouch, for plaintiff.

      Charles I. Thompson and Frederick L. Ballard, for defendant.
    March 18, 1929.
   Finletter, P. J.,

The defendant gave its surety bond for the benefit of first mortgage bondholders to insure the completion of a certain building, payment of the contract price, freedom from liens and against default in the performance of the mortgage and bonds.

A balance of $275,000 of the contract price remains unpaid, liens to that amount have been filed, $162,000 of which are conceded to be valid; interest and other payments due under the mortgage are in default. In addition, under the terms of the mortgage, the principal has become due and remains unpaid.

So that in all the above respects there has been a breach of the condition of the bond in an aggregate amount far in excess of the penal sum, and judgment should be given against the defendant, unless some reason is shown to the contrary.

The affidavit of defense sets up defense under the following heads: (1) That the bond was never fully executed, in that all of the intended obligors did not sign it; (2) that the sureties were released by certain facts; (3) that an alleged change in the building contract, and (4) alterations made in the plans of the building released the surety; (5) that deviations from the method of payments agreed upon had the same effect.

The enterprise out of which this litigation arises was the construction of a large office building at Washington, D. C.

Those who planned it organized themselves into a business trust, called the Washington Central Trust. The necessary money, $5,900,000, was to be raised on (1) first mortgage bonds, $3,300,000; (2) second mortgage bonds, $800,000; and (3) preferred stock, $1,800',000.

Coffin & Burr Inc., a banking corporation, agreed, in a contract with the Washington Central Trust, called the “Loan Agreement;” to take the first mortgage bonds and lend $3,300,000 upon them.

The National Shawmut Bank, of Boston, was trustee under the first mortgage.

In order to sustain the value of the first mortgage bonds and to protect their holders, a joint and several surety bond was procured from the defendant and the two other surety companies in the sum of $1,200,000, conditioned as above stated.

The defendant’s affidavit sets up defense under five heads, which we shall take up in order.

The first and second defenses involve the consideration of the deed of trust by which the Washington Central Trust was created and the execution of the surety bond.

The defendant contends, first, that the bond upon which the plaintiff sues is not, and never was, a binding obligation, because the National Shawmut Bank, one of the trustees of the Washington Central Trust, did not sign it. And, secondly, that even if it were the valid obligation of the defendant, the latter became surety only for the administration of the trust by the trustees, Stewart and Burnett, who signed the bond. That the consent of “plaintiff” to the substitution of other individuals as trustees released defendant.

The facts in relation to these two subjects are that the body of the bond recites “that Robert N. Burnett, Ralph A. Stewart and National Shawmut Bank, of Boston, as they are trustees of the Washington Central Trust under an agreement and declaration of trust dated June 1, 1925, a copy of which, etc., are principals,” whereas the bond is signed only by Stewart and Burnett, the bank not signing.

Subsequently, during the construction of the building, two others, Montgomery and Powers, succeeded Burnett and Stewart as trustees, one of them having resigned and the other having died.

The pertinent provisions of the trust deed which created the Washington Central Trust are that all of the property involved was conveyed to the trustees, to be administered in their sole discretion; that it was provided that both trustees and shareholders should be free from personal liability for debts of the trust; that creditors were to look only to the trust fund for payment; and that the signatures of but two of the trustees were required to raise an obligation binding upon the trust. Trustees were to be chosen for limited terms, and provision was made for filling vacancies in the board arising from death, resignation or other cause.

The trust deed was duly recorded in Massachusetts and the District of Columbia.

The Washington Central Trust is, therefore, a pure trust and not a partnership, the management of the trust being vested entirely in the .trustees, and the shareholders having no voice in'it.

This is the test: Crocker v. Malley, 249 U. S. 223; Hecht v. Malley, 265 U. S. 144; Williams v. Milton, 215 Mass. 1; Priestley v. Treasurer, 230 Mass. 452; Small v. Smith, 294 Pa. 163.

All of the contracts involved in the case contained a full reference to the trust deed by date, names of parties and reference to the records, and were incorporated by reference and specific words into the bond sued upon.

Nowhere in the affidavit of defense does the defendant deny notice or knowledge of the existence or provisions of the trust deed, and it is evident the defendant had full knowledge of both.

1. In taking the position that the absence of the bank’s signature left the bond incomplete and ineffective, the defendant treats this document as if it were an agreement to which three unassociated individuals were recited as parties of the first part. It may be granted that if three were to be bound, and were not bound, the paper would be incomplete: Russell v. Annable, 109 Mass. 72.

But if the three had agreed between themselves to be bound by the signature of two, and the opposite party knew of this agreement, the three would be bound. If the principal who has failed to sign is bound, irrespective of the bond, the omission is immaterial, and the surety is bound: Empire State Surety Co. v. Carroll County, 194 Fed. Repr. 593.

And that is the fact in the instant case. The trust deed, executed under seal by the bank, bound it to the validity of any bond or contract executed by a majority of the trustees, for that was the covenant of the trust deed.

The answer of the defendant to this is: “There are undertakings to the plaintiff in the bond in suit which the trustees are otherwise not bound to perform. As an illustration, the bond recites that the trustees will keep the building free from liens.” But if the bank has covenanted in the trust deed to be bound by the seal of a majority of the trustees to all bonds, it is bound to all the covenants of the surety bond. It is unimportant that it is not “otherwise” bound.

Again, if a surety agrees to be bound irrespective of the failure of a named party to sign, the omission is immaterial: Goodyear v. Bacon, 148 Mass. 542; 32 Cyc., 50; Whitaker v. Richards, 134 Pa. 191.

If there is any force in the rule that a party is bound by the limitations of power of the party with whom he contracts, he having notice of them, the surety in this case is bound by the provision of the trust deed that the trustees may act by a majority in executing a bond, and in dealing with them should be taken to have agreed to the completion of the bond by the signatures of the two trustees.

Defendant properly says “that a provision for limited liability in a declaration of trust does not constitute a limit upon the trustees’ power personally to bind themselves.” It cannot, however, be seriously argued that any intention to assume a personal obligation is shown in the surety bond, or indeed in any of the contracts. The care to avoid this is obvious in every paper. For example, the bond describes the obligors as “A, B and C, as they are trustees of the Washington Central Trust under an agreement and a declaration of trust dated as June 1, 1925,” etc.; and the obligors sign “as trustees of the Washington Central Trust, but not individually.”

The defendant here was dealing with a body of men who, it knew, had agreed among themselves to be bound for certain purposes, among them the very bond in question, by the signature of two. It was dealing with three persons who had expressly agreed under seal to transact business under a certain name, and by a certain number of signatures. The face of the instrument correctly describes the party of the first part as “A, B and C, as they are trustees of the Washington Central Trust under, &c., &c.” This is the proper description of the contracting party. They were not contracting as unassociated individuals, but as persons doing business under a certain name, and in certain relations to each other and to the world, and by methods agreed upon, all of which was known to the defendant.

At the foot of the paper, it was executed by two of the trustees, being the number needed under the deed of trust; the surety companies then executed it, and delivered it so executed to the obligee, and accepted the premium.

It was provided (in paragraph 38 of the deed of trust) that “The undertaking . . . shall be designated for all purposes as the Washington Central Trust, and under that name, so far as practicable, all business shall be conducted by the Trustees.” ,

And in paragraph 17: “Bonds and contracts executed by a majority of the trustees shall be effectual as if executed by all trustees.”

“The right to adopt a name for business purposes is universally conceded to be the right of individuals, partnerships and corporations. There is no legal inhibition to the exercise of a like power by the trustees of a trust created for business purposes:” Rand v. Farquhar, 226 Mass. 91. It is accordingly held in that case with respect to an instrument under seal, that its execution in the name of the trust by two out of five of the trustees was a complete execution.

On the whole, we think it plain that the effect of the trust deed was to exempt the trustees from personal liability, to provide that creditors should look to the trust funds, that the surety had full knowledge of the provisions and limitations of the trust deed, that the bank was bound by its covenant to recognize a bond signed by a majority of the trustees as binding upon it, that it was, without its signature to the surety bond, bound by it, and that the surety company, by its knowledge of the method provided in the trust deed for the execution of bonds binding upon all the trustees, assented to the execution by that method.

•2. Again, the defendant argues that the change in the Board of Trustees of the Washington Central Trust, by the substitution of two new trustees, releases it from its obligation to the obligee (as to whom there has been no change). Its idea is that it was entitled to the personal management of the individuals who were trustees, in whose acumen it professes great Confidence.

It is not entitled to the personal management of the retired trustees; first, because the principal obligors on the bond were not the trustees as ordinary individuals, but as individuals who had peculiar limitations, known to and assented to by the defendant; that is, trustees whose powers, terms and personalities were regulated by the deed of trust. All this must have been in the contemplation of the defendant, for it knew the provisions of the trust deed.

We agree with defendant’s counsel that the Washington Central Trust is not an “entity” in the sense that a corporation is, and that the defendant dealt with the trustees as with individuals. But it is also true that it dealt with them as with individuals who had certain qualifications and limitations which, by the terms of the contract, it agreed to recognize. Among these were a capacity to act by majority vote, binding upon all, to make changes in the persons of the trustees, that trustees might serve as such for a limited term, be free from personal liability, and possess other powers and have other limitations. If the defendant was bound by contract to recognize these attributes of the individuals, it is unimportant whether they, so qualified and limited, are called an entity, or a group, or a continuing body of trustees, or merely individuals.

Secondly, the condition of the bond was not to insure the conduct of any particular individual, but the completion of and payment for a building, and the payment of principal and interest of certain mortgage bonds.

Finally, the bond, by its terms, including, as it does, by specific reference, the provisions of the deed of trust, provides, in effect, that the obligation shall be a continuing one without reference to the composition of the trustees.

The defendant has in the bond recognized the continuing character of the obligation. In the bond, Burnett, Stewart and the bank, “as they are trustees,” are described as the “principals.” The preambles of the bond go on to say “the principals have delivered to the obligee an Indenture of Mortgage,” and have also executed a supplemental indenture of mortgage; “and the principals by a Loan Agreement with Coffin & Burr Inc. . . . have agreed, etc.” And those documents are specifically incorporated into the bond “as fully and to all intents as if set forth therein.” Yet these very documents are executed by former trustees, to whom those who signed the bond are successors. Hager, Wadden and Burnett executed the mortgage; Hager, Wadden and Burnett executed the loan agreement; Burnett, Stewart and the bank executed the supplemental loan agreement.

Surely an express description by the defendant in the bond of these changing groups of men as the “principals in the bond” is an acknowledgment of the continuing character of the obligation, without reference to the personality or composition of the trustees.

The mortgage also, incorporated in the bond, describes the mortgagors as “to be taken to include all such persons as from time to time are trustees of the Washington Central Trust, being the trustees under the declaration of trust and their successors in the trust.”

We have referred to the subject of exoneration of the surety by the principal obligor and the defendant’s argument that the absence of the bank’s signature deprives it of that right against the most substantial of the obligors. Since the bank has agreed to be bound by any bond executed by a majority of the three trustees, that is, by two of them, it is our opinion that the bank is bound to the bond. Nevertheless, the defendant loses nothing, whether the bank is bound or not, because it, the defendant, could make no claim against the bank for personal liability, for the reason that this is covenanted against in the trust deed, of which the defendant had notice.

That such a provision is valid is long and thoroughly established.

It was said by Gibson, J., in Hess v. Werts, 4 S. & R. 356, 359: “I see no reason to doubt but that they (partners) may limit their responsibility by an express stipulation made with the party with whom they contract aind clearly understood by him at the time.”

“It is possible by clear language for a trustee to indicate that no personal liability on his part is contemplated, and such language will be given effect:” Williston on Contracts, § 312.

Parties may provide in the contract that the trustees shall not be personally liable, and that the creditor agrees to look solely to the trust property for the satisfaction of the obligation: J. P. Hildebrand. The Massachusetts Trust, 59 Am. Law Rev. 22, and eases cited in Note 15.

It is superfluous to refer to the authorities upon the subject of the quantum of proof of notice of the covenant to limit the trustee’s liability because the affidavit of defense does not allege want of notice; and could not do so in view of the recitals in the bond, the form of signature and the recitals in the loan agreements, original and supplemental, and in the indenture of mortgage, original and supplemental.

The attitude of the authorities on the subject is, however, indicated below.

If the trustees designate themselves “as trustees but not individually,” or “as trustees but not otherwise,” personal liability is excluded: Hildebrand (supra), page 23; Williston on Contracts, § 312.

In Hallett v. Dowdall, 18 Q. B. 2, a limitation of liability to the fund was upheld because the provision in the articles of association to that effect was incorporated in the contract: Beaver v. McGrath, 50 Pa. 479; Taylor v. Davis, 110 U. S. 330, 335; Bank of Topeka v. Eaton, 100 Fed. Repr. 8, and 107 Fed. Repr. 1003; McCarthy v. Parker, 243 Mass. 465.

Where the terms of the declaration of trust exempting the trustees or the shareholders from personal liability are known to the creditor, he cannot assert personal liability against them: McCarthy v. Parker, 243 Mass. 465.

“The terms of the note, in that it contains the words, ‘as such trustee under the declaration of trust dated May 23, 1887, and not otherwise,’ obligated it to abide by the terms of the articles of association. Whether plaintiff examined the articles or knew their contents is of no consequence:” Bank of Topeka v. Eaton, 100 Fed. Repr. 8.

A covenant by trustees “as such trustees but not otherwise” to repay a loan is merely a covenant to repay the money out of the trust fund and does not impose personal responsibility on them: Wrightington on Unincorporated Associations, 227.

Before we take up the remaining defenses offered; we must refer to one of them in particular, because, unless the defendant’s position with regard to it is correct, the others need not be considered.

The defendant avers that the defaults complained of were caused by the acts of plaintiff, “who cannot sue in his own wrong.”

The basis of this criticism is the fact that the Shawmut National Bank is now both a trustee under the Washington Central Trust and the trustee under the mortgage for the first mortgage bondholders.

When that mortgage was executed, the bank was not one of the trustees of Washington Central Trust, but became one later.

At the outset of the affidavit of defense, counsel says that he will refer to the “National Shawmut Bank, of Boston,” as the “plaintiff.” He pursues that plan consistently throughout the affidavit. This is both erroneous and confusing. The plaintiff is not the “National Shawmut Bank” but the National Shawmut Bank, trustee under the mortgage given as security for the first mortgage bonds. It sues for the benefit of its cestuis que trustent, and in a representative capacity, and not personally or as a trustee under the business trust. When it became, as it did later, one of the three trustees of the Washington Central Trust, it did many things in that capacity which it was obliged to do under the loan agreement and the supplemental loan agreement, and many other things which it had a right to do as one of the builders and owners of the property, in which things the bondholders had no voice or control or right to interfere, and in the doing of which it in no way bound the bondholders. In doing these things, it did not act for its cestuis que trustent nor profess to so act, and if it had it would be beyond its power as such trustee.

What it did may affect the rights of the surety company against the Washington Central Trust or against the Shawmut Bank personally, but cannot affect the rights of the bondholders and cannot constitute a defense against the Shawmut Bank in a suit brought in its representative capacity as trustee for the benefit of these bondholders.

The general rule is that a trustee cannot charge the trust estate by his executory contracts unless authorized to do so by the instrument creating the trust. On such contracts he is personally liable, and the remedy is against him personally. He has no principal and the rules that determine the liability of an agent are not applicable to trustees: 26 Ruling Case Law, § 175, page 1316.

The defendant’s argument that the bank, as mortgage trustee, cannot divest itself of its knowledge or the effect of its conduct as a member of the Washington Central Trust would have weight if the bank’s own interests or property were at stake. But it has no personal interest in this suit or in the rights arising out of the surety bond. The interests and rights involved are those of the bondholders. The bank, as trustee, is a mere legal title holder with respect to the first mortgage bonds, with no more duty than a safe deposit-box to keep them safely.

Unless this is so, the surety bond was a farce. Its purpose and covenant was to save the first mortgage trustee (or rather its cestuis que trustent) from defaults of the principal obligor, and if the bank, as trustee, is to be deemed the same person as the bank, as principal on the bond, the condition of the latter was to save it harmless against its own default. In other words, the bond was ineffective and useless from the beginning.

As counsel for plaintiff say in their brief: “If every default of the Trustees of the Washington Central Trust, the principals in the surety bond, may be indirectly imputed to the mortgage bondholders, for which the plaintiff is trustee, no liability on the surety bond would be conceivable, since every default by the principal could thus be imputed to the obligee on the bond.”

Surely the parties had no such intention.

We hold' that the trustee under the first mortgage and the bondholders secured by that mortgage are not responsible for any act of the bank done in any other capacity.

[The Court then discussed the averments of irregular payments and the documents bearing thereon, and concluded that the payments were authorized.]

The bond and other contracts were executed and to be performed in other jurisdictions than Pennsylvania. The defendant properly contends that they are regulated, except as to pleading, by the law of those jurisdictions. It is also averred that there are no statutes involved, nor decisions of courts interpreting statutes, but that the questions raised are governed solely by the common law of the foreign jurisdictions.

The defendant has, and we think correctly, adopted the plan of stating the rule; that is, averring it as a fact, instead of pleading the decisions. There are no precedents in Pennsylvania for this — we are told — but the difficulty of pleading the common law of a state by a recital in the pleadings of the decisions justifies, we think, the practice adopted by the defendant. Unfortunately for it, the defendant is not helped by any of the stated rules. Assuming them to be true, as we must, they all fail of application to the instant case, because of the universality of their statement; and each one fails in pertinency by the omission of important particulars not covered by, or included in, the rule as pleaded.

The amount of the defaults alleged in the 9th, 15th and 16th paragraphs of the plaintiff’s statement are not denied. Their total far exceeds the penal sum of the bond, so that it is not necessary to pass upon the item referred to in the 21st paragraph.

We are of opinion, for the reasons given above, that no sufficient defense has been .made to the plaintiff’s claim, and that judgment should be given in favor of the plaintiff, and against the defendant, in the sum of $1,200,000, with interest on $132,000 thereof from Dec. 1, 1927, and with interest on $1,068,000 from May 11, 1928.


author: Patterson, P. J.,

text:
    Krebs et al. v. Tomlinson et al.

      J.J. Haberstroh, for plaintiffs; B. J. Puderbaugh, for defendants.
    Feb. 25, 1929.
   Patterson, P. J.,

This is a rule by the defendants to show cause why a certain judgment, dated July 9, 1927, for $529.80, payable in sixty days to the order of the plaintiffs, H. M. Krebs and F. E. Grabill, and entered against the defendants, C. J. Tomlinson and W. A. Tomlinson, to No. 244, June Term, 1927, should not be opened and the defendants allowed to defend and answer thereto.

On the date of the execution and delivery of said judgment note, .defendants contracted with the plaintiffs for the issuing of life insurance policies in the sum of $10,000 on the lives of defendants by the Reliance Life Insurance Company of Pittsburgh, represented by plaintiffs as their agents. The amount of the said note represented the first year’s premium on said policies. The testimony taken by the parties, in the form of depositions, shows that said note, with the application for said insurance, executed on the same day, was forwarded to the home office of the insurance company at Pittsburgh, and after due investigation accepted by said company and policies of insurance pursuant thereto issued on the lives of defendants. Said policies were later delivered to and accepted by defendants, who subsequently returned the policies to the home office at Pittsburgh, who, in turn, forwarded them to plaintiffs, the agents, who again delivered them to defendants by personally leaving them on the desk in defendants’ place of business and in the presence of the defendants. The insurance on the lives of defendants was in effect from the date of the execution of said note to the expiration of thirteen months thereafter, being a period of one year, for which the premium was paid, and thirty days’ grace for further payment, as stipulated in said policies. The defendants now undertake to repudiate said obligation on their part as represented by the judgment of record, and contend that their petition and the testimony warrant the opening of the judgment to permit the proposed defense. With this contention we cannot agree. The defendants’ petition sets forth, in the concluding part of paragraph 7: “That in pursuance of said agreement the defendants canceled the said policies before delivery and so notified the Reliance Life Insurance Company and H. M. Krebs and F. E. Grabill;” and setting forth in other parts of said petition the averment that since the premium had not been paid by them, that no insurance was, therefore, in effect and that they had a verbal agreement with the agents of said company which gave them the option of canceling the said policies at a later date if they so desired. This agreement, however, was not reduced to writing and it is not satisfactorily proven by oral testimony, and it is in contradiction to the part of said paragraph 7, which immediately follows its averment, to wit, “that the note upon which judgment has been entered in this cause is the same note that was signed as part of the application for insurance and represents the first annual premium on said policies.”

It is not disputed that said note was made payable to the plaintiffs, the agents, personally and that the amount it represented, being the amount of the first year’s premium on said policies, was paid in cash by said plaintiffs and that the policies of insurance continued in full force from the date of the issuance of the same to the expiration of a period of thirteen months. And had either of the defendants died during this period, the full amount of insurance due would have been promptly paid under the terms of said policy, as the premium was fully paid, the risks approved and the policies regularly issued. The insurance company was, therefore, bound for the period stated. The contract was closed. The defendants cannot withdraw from their obligation to the agents any more than the insurance company could have repudiated the risk which it assumed, and for the sum represented by this judgment the defendants enjoyed the benefit and advantage of said policies for said period.

There is no evidence of fraud or deceit in the procuring of said contract of insurance, and the only testimony offered by the defendants is to the effect that there was not a sufficient delivery of the policies. Neither of the defendants testifies to any fraudulent transactions on the part of the agents. We, therefore, conclude that the entire transaction was free from any suggestion of fraud; that it was fair in every respect; that the insurance company was bound by the terms of said contract, and that there were no terms in said contract that made it optional on the part of the defendants to repudiate the same at their will.

The cases holding that insurance is not in effect until the first year’s premium is paid are not applicable here, for the reason that the judgment note, accepted by the insurance agents, approved by the insurance company and actually paid when due by the insurance agent, constituted a payment in full of the first year’s premium by the defendants. The cases referred to by the defendants’ counsel are all cases where there was a failure of payment of the first year’s premium on the part of the insured.

In 32 Corpus Juris, § 239, col. 1134, the law governing this ease is clearly stated as 'follows: “Where an agent of a company, upon his individual responsibility, extends credit for the premium to insured, as by accepting note of the insured payable to the agent individually, and pays the amount to, or is charged with it by, the.company, the payment inures to the benefit of the insured and consummates the contract.”

In Essington Enamel Co. v. Granite State Fire Ins. Co., 45 Pa. Superior Ct. 550, it is held: “When the usual course of dealing between an insurance company and its agent is for the company to treat the agent as its debtor for the premiums on policies written by him, payment of the premium by the insured to the agent is payment to the company:” Pennsylvania Ins. Co. v. Carter, 8 Sadler, 191; Elkins v. Insurance Co., 113 Pa. 386.

And when a policy is delivered without exacting the payment of the premium, the presumption is raised that a credit is extended and is a waiver of a condition of prepayment: Universal Fire Ins. Co. v. Block, 109 Pa. 535; Snyder v. Insurance Co., 202 Pa. 161.

“It has been held many times that even if the policy provides that it should not take effect until the premium is paid in cash, the general agent has power to give a credit and wall be held to have waived it if he delivered the policy without enforcing payment of the premium and that the countersigning agent is such an agent:” 16 Am. & Eng. Cye. of Law (2nd ed.), 859.

Decree.

Now, therefore, Feb. 25, 1929, upon due consideration of the pleadings, the depositions and the arguments of counsel and the law submitted, it is ordered, adjudged and decreed that the rule heretofore granted is hereby discharged.

From Robert W. Smith, Hollidaysburg, Pa.


author: Lamorelle, P. J.,

text:
    Henson’s Estate.

      Charles Hunsicker, for exceptants; Townsend, Elliott & Munson, contra.
    April 2, 1929.
   Lamorelle, P. J.,

We are all of opinion that the Auditing Judge was correct in his conclusion that the fund originally set aside for the payment of the annuity should not now be depleted, and for that reason the exceptions are to be dismissed. The question of the ultimate-destination and distribution of the fund is not now necessarily before us. Whether, upon the death of the annuitant, the entire fund will pass under one particular clause of the will or whether any part thereof may pass under another clause will be decided when, upon and because of the death of the annuitant, a further accounting is had.

All exceptions are accordingly dismissed.

Steabne, J., did not sit.


author: Houck, J.,

text:
    Gordon Ice Company v. Reading Company.

      H. O. Bechtel and W. C. Devitt, for plaintiff.

      George Ellis and John F. Whalen, for defendant.
    Feb. 4, 1929.
   Houck, J.,

In this case the plaintiff corporation, which was engaged in the business of harvesting and selling ice, sues the defendant corporation to recover damages for the destruction of ice and for the destruction of its business. The statement alleges that the plaintiff is the owner and is in possession of a tract of land in the Borough of Gordon, Schuylkill County, on which land is a running stream of fresh spring water; that the plaintiff embarked in the natural ice business on or about Nov. 18, 1916, and built a dam upon the said' stream, together with storage houses in which to store the harvested ice; that it built up a large trade for its ice and continued in business until March, 1923; that the defendant is engaged in the operation of a steam railway between Philadelphia and Williamsport, the line of said railway running near to the plaintiff’s land; that the defendant, during the month of January, 1920, and continuously thereafter, to and including the month of March, 1923, “by its reckless, careless and negligent working and operating of its railroad, running and operating its defectively equipped and negligently and insufficiently maintained locomotives on its line of railroad at and near the lands and plant of the plaintiff aforesaid, did then and there throw and cause to be thrown large volumes and clouds of smoke, cinders, ashes, coals and coal dirt upon the land, and upon the water, and upon the ice as it was being formed on the water of the plaintiff aforesaid, thereby destroying the crop of ice and making it worthless and unmarketable. So much so” that the plaintiff was compelled to abandon its plant; that the negligent operation of its railroad by the defendant destroyed each ice crop from January, 1920, to March, 1923, thus rendering worthless the plaintiff’s ice plant and its equipment; that the name, number and designation of the locomotives from which the cinders and ashes were thrown upon the plaintiff’s ice are unknown to the plaintiff; and that the defendant’s negligence destroyed the ice crop during the months of January, February and March of 1920, and during the months of December, January, February and March of 1921, 1922 and 1923, because of the insufficient repair or the negligent, careless, improper, reckless and unskillful management and operation of the defendant’s railroad and its engines.

To the statement of claim the defendant filed an affidavit of defense raising questions of law. The defendant contends that the plaintiff is not entitled to recover because the statement of claim fails to show in what manner the defendant’s locomotives were defectively equipped or negligently or insufficiently maintained, and fails to show how the cinders and ashes were thrown upon the plaintiff’s land and dam; that the statement fails to show the number or numbers of the engine or engines or any particulars relating to the engines which it is alleged caused the damage; that the statement does not show that the throwing of cinders and ashes upon the water had anything to do with the condition of the ice, for the destruction of which claim is made; that the averments in the statement are vague, indefinite and uncertain; and that the claim covering January, February and March, 1920, is barred by limitation, since the pracipe for summons was filed on Dee. 22, 1926.

The action is based upon the allegation that the defendant operated its railroad negligently. If it is shown that the plaintiff sustained damage by reason of the defendant’s negligence, then, of course, the plaintiff is entitled to recover. The burden is on the plaintiff to show that the defendant’s engines caused the damage, and that there was negligence either in the construction or management of the engines: Sollenberger et al. v. Pennsylvania R. R. Co., 285 Pa. 85. The duty rests upon the defendant of using the most effective known means and appliances to prevent the cinders and ashes from its engines from being borne and scattered by the winds over nearby properties: Harvey v. Susquehanna Coal Co., 201 Pa. 63. See, also, Conti v. New Castle Lime and Stone Co., 94 Pa. Superior Ct. 321. The statement of claim alleges that the plaintiff’s damage resulted from the defendant’s negligence. The statement, therefore, alleges a cause of action.

The next question is whether or not the statement of claim is sufficiently specific in its allegations charging the defendant with negligence. In our opinion, the statement is as specific as the circumstances permit. Both parties have cited cases, in support of their respective contentions, dealing with damages caused by fire alleged to have been started by a spark from a locomotive. Cases of this character do not exactly touch the point here involved. A fire is a single occurrence, and the proof, whether direct or circumstantial, must be directed to a point near in time to the occurrence. In the case at bar, the claim is not founded on a single occurrence, but on a long-continued succession of acts. If the plaintiff can show, as the statement alleges, that over a long period of time cinders and ashes were negligently thrown upon its land and upon its dam, and that these negligent acts caused damage, then the plaintiff would be entitled to recover. In a case of this character it is not requisite that the plaintiff specify each and every engine which was negligently operated by name, number or other designation. In fact, that character of proof is not required in a fire case where the plaintiff has no knowledge of the designation of the particular engine alleged to have caused the damage: Matthews v. Pittsburgh & Lake Erie R. R. Co., 18 Pa. Superior Ct. 10; Knickerbocker Ice Co. v. Pennsylvania R. R. Co., 253 Pa. 54; Sollenberger v. Pennsylvania R. R. Co., supra. The-locomotives which were operated on the line in proximity to the plaintiff’s property are within the knowledge of the defendant. The time is specified and from this the defendant can meet whatever proof the plaintiff offers to show negligence: Murdock v. Martin et al., 132 Pa. 86. The objections relied upon by the defendant are objections which might well be raised after the evidence has been produced. They cannot avail at this time against the statement of claim, which sufficiently avers that the damage suffered resulted from the defendant’s negligence.

The last objection to be considered is the defendant’s contention that the claim for January, February and March, 1920, is barred by limitation. Whether a claim or a portion of a claim is barred by the statute of limitations cannot be raised in an affidavit of defense so as to entitle the court to decide it as a preliminary question of law: Prettyman v. Irwin, 273 Pa. 522. This is an affirmative defense and may be interposed in the proper way and at the proper time. It cannot be raised in an affidavit of defense raising questions of law.

Being of the opinion that the statement of claim states a cause of action, and that the cause of action has been sufficiently averred, the affidavit of defense raising questions of law must be overruled.

The affidavit of defense raising questions of law is overruled, with leave to the defendant to file an affidavit of defense on the merits within fifteen days, otherwise the case shall be deemed to be at issue.

Prom M. M. Burke, Shenandoah, Pa.


author: Landis, P. J.,

text:
    Dittus et al. v. Johnson.

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

      Paul E. Mueller, for defendant.
    Oct. 6, 1928.
   Landis, P. J.,

Kirk Johnson is the owner of a certain store and apartment-building, situated on the south side of West King Street, in the City of Lancaster, known as Nos. 50 and 52 West King Street. He rented the rear apartment on the second floor to one John Shelly, who, together with his family, was occupying it at the time the accident occurred. There was a roof over part of the first floor of the building which the defendant, Johnson, had fitted up with hooks and lines so that the several tenants could use the same as a place to hang out their wash and laundry. Part of the roof was occupied as a skylight, which was constructed level with the adjacent roof and covered with translucent glass. There is no allegation that the skylight was not in good condition, either at the time the apartment was leased to Shelly or at the time of the accident. The entrance to the roof was from a balcony in the rear of the Shelly apartment. On May 13, 1926, the plaintiff, Elizabeth Dittus, with her mother, was visiting the Shelly family. In some way she walked onto the balcony and from there to the aforesaid roof. She fell through the skylight to the floor below and was injured. She has brought suit to recover damages for her injuries and her father has sued for loss of her services. The defendant has filed an affidavit of defense, raising the question of law that there is no lawful ground to support the action set forth in the plaintiffs’ statement. The grounds of complaint on which the plaintiffs rest their case are: First, that the defendant .maintained the skylight without guards; second, that he failed to maintain a gate between the balcony and the roof; and, third, that he maintained the skylight in a dirty condition level with the roof.

I do not think that a recovery can be had against the defendant for any one of these causes. The fact that the child and her mother were visiting the Shelly apartment gave her no right to wander all over the house, and especially on the defendant’s roof, which formed no portion, even, of the apartment. Conceding that the Shellys and the other tenants were permitted to dry their clothes on the roof, their right to use it was limited to that use and was for their exclusive benefit and not for the benefit of those who might come there as guests. When the child got upon the skylight, she took the risk of injury, and the owner of the building cannot be charged with negligence on account of her own fault. I do not think the landlord is bound to place a guard around a skylight on his roof, no matter whether he occupies the house himself or it is occupied by his tenants. Nor do I think he was obliged to put a gate between the balcony and the roof as an obstacle to unauthorized persons who might attempt to walk from the balcony to the roof and from thence to the skylight. On what theory, also, was he bound to keep his skylight clean so that it would be visible to trespassers who might by chance come upon it?

“The law fully recognizes the right of him who, having the dominion of the soil, without malice does a lawful act on his own premises, and leaves the consequences of an act thereby happening where they belong, upon him who has wandered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term:” Gramlich v. Wurst, 86 Pa. 74; Thompson v. B. & O. R. R. Co., 218 Pa. 444.

“It is settled by abundant authority that to enable a trespasser to recovery for an injury” against the owner of property he was trespassing upon, “he must do more than show negligence. It must appear there was a wanton or intentional injury inflicted on him by the owner.” Even a child of tender years may be a trespasser and be subject to the consequences of his trespass so that it may preclude recovery for injury: Gillespie v. McGowan, 100 Pa. 144.

In B. & O. R. R. Co. v. Schwindling, 101 Pa. 258, a boy under six years of age went for his own amusement on the platform of a railroad station to observe an approaching train and was struck by an iron step which was bent and projected a few inches from the car. A judgment in his favor was reversed on the ground that the company owed him no duty of protection under the circumstances. See, also, Rodgers v. Lees, 140 Pa. 475.

In Johnson v. Wilcox, 135 Pa. 217, a plaintiff, while on his way to a dance-room in the third story of a building having a safe entrance by a well-lighted hall and stairway, stepped aside through a door on the second floor, and, in the dark, upon a platform which he thought was protected by a railing. He fell and was injured. It was held that he was guilty of contributory negligence.

In Sweeny v. Barrett, 151 Pa. 600, it appeared that the plaintiff, on a dark night, stepped from a rear door of a saloon leased to the defendant which he was unfamiliar with, and, turning as he stepped out, he fell down an outside open stairway leading to a cellar. In an action for damages, a non-suit was entered.

In Jones v. Counties Gas and Electric Co., 289 Pa. 128, it was held that one who deliberately walks into a place which he knows, or should know, may be dangerous, without taking any precautions to know the truth, takes the chance of the result and must personally bear the consequences.

In Conboy v. Osage Tribe No. 113, 288 Pa. 193, a plaintiff fell down an unlighted staircase of a building used for lodge meetings. It appeared that he was familiar with the approach to the staircase, but neglected to take precautions available to him in securing a light before he proceeded in the darkness. In an action for damages against the landlord of the building, it was held that he could not recover.

In Davis v. Edmondson, 261 Pa. 199, the plaintiff fell off a platform adjoining a rear door of a hall. It was alleged that some one, other than the plaintiff, on the night of the accident, opened the door in the hall leading to the platform, and that he stepped on it in the darkness; that he was unable to see the ends of the platform and stepped off it and sustained the injuries complained of. In an action against the owner of the dance-hall, it was held that there could be no recovery. In this case, it was said: “The correct conclusion of the learned court below was that it clearly appears from plaintiff’s statement of his cause of action that the injuries he sustained1 were due to his carelessness or negligence, and the judgment, which was properly entered under the Act of May 14, 1915, P. L. 483, is affirmed.” To the same effect is Borman v. United Merchants Realty and Imp. Co., 264 Pa. 156.

In Redman v. Weeter, 86 Pa. Superior Ct. 173, it appeared that Redman had rented an apartment on the third floor of a three-story apartment-house owned by Weeter. At the rear of the building there were porches to accommodate tenants on the first, second and third floors, and a stairway led from the third floor porch to the lot below. Redman’s son, who was between thirteen and fourteen months old, made his way from the porch of the upper floor down three steps of the stairway and in some way fell from the stairway through an opening and was killed. It was held that the landlord was not responsible for the accident and that there could be no recovery against him.

There is also another reason which I think is applicable to the present case. In Harte v. Jones, 287 Pa. 37, it was said that at common law, subject to certain exceptions, the occupier or tenant and not the landlord is liable for injury occurring to a third person on or off the premises; that if a building in possession of a tenant becomes dangerous in law, the owner is not liable for an injury occurring thereon; and that the same rule obtains where the premises are leased as flats to different persons. Where a landlord is liable for defective construction or condition at and before the tenancy begins, the liability continues throughout the tenancy; but to cause him to be liable the premises must be so constructed or be in such condition that in and of itself it amounts to a nuisance. Therefore, an entrance to a cellar from a street guarded by a door is not a dangerous construction or a nuisance per se.

In Duffin v. Dawson, 211 Pa. 593, where a person was injured by the tilting of a cellar door in a pavement, and it appeared that the accident was caused because the door had not been properly closed, and not because of any defect in the construction of the door, it was held that the remedy was against the tenant in possession and not against the owner. See, also, Towt v. McCaulley, 173 Pa. 314, and Lindstrom v. Pennsylvania Co., 212 Pa. 391.

In 36 Corpus Juris, 129, it was said that “the landlord is not bound to keep in repair the portion of the premises used in common by different tenants beyond the purpose for which such portion was constructed.”

I am of the opinion that, on the face of the statement, the plaintiffs have no right to recover, and, therefore, under the 20th section of the Act of May 14, 1915, P. L. 483, judgment should now be entered in favor of the defendant.

Judgment entered for defendant.

From George Ross Eshleman, Lancaster, Pa.


author: Fleming, P. J.,

text:
    Commonwealth v. Woomer.

      John G. Love, District Attorney, for Commonwealth.

      E. J. Thompson, for defendant.
    Jan. 4, 1929.
   Fleming, P. J.,

The defendant has moved the court to quash the proceedings above stated and to discharge the defendant from custody, assigning as reasons therefor the following:

“1. That the information or complaint sworn to by the prosecutrix does not charge a criminal offense.'
“2. That the information or complaint sets forth such facts therein as makes it impossible to charge the defendant with a criminal offense, arising out of the circumstances set forth in the said information or complaint.”

This motion was made and filed prior to the finding of an indictment by the December Grand Jury and must, therefore, be considered on its merit at this time.

The 88th section of the Act of March 31, 1860, P. L. 382, enacts as follows: “If any person, with intent to procure the miscarriage of any woman, shall unlawfully administer to her any poison, drug or substance whatsoever, or shall unlawfully use any instrument or other means whatsoever with like intent, such person shall be guilty of felony, and, being thereof convicted, shall be sentenced to pay a fine not exceeding $500, and undergo an imprisonment, by separate and solitary confinement at labor, not exceeding three years.”

The prosecutrix in this case is the mother of Edna May Wolfe. It is averred that the said Edna May Wolfe was, on March 17, 1928, pregnant with child; that the defendant came to the home of the prosecutrix for the purpose of visiting the said Edna May Wolfe; that he gave her a certain drug for the purpose of causing an unlawful abortion upon her, stating to her that such drug contained ergot and other drugs and medicines that would cause the child to be removed from her body; and, further, that the defendant importuned, insisted and urged the said Edna May Wolfe to use the said drug for the said unlawful purposes, and that the said Edna May Wolfe complied with such importunings, insistings and urgings and took the said drug, whereupon she became quite ill by so doing.

This information covers all the requirements of the act cited above. As far as the drug is concerned, it is the intent which is the basis of the crime. This intent cannot exist unless the defendant knew or believed that the patient was pregnant, nor could it be inferred from the use of such drug unless the defendant understood or supposed that the use of it would probably produce a miscarriage: 2 Trickett on Pennsylvania Criminal Law, 569. All this is sufficiently covered in the information and the averment of intent meets the requirement of law.

As to the administration of the drug, the law does not require that it must be personally administered by the defendant. The means may be employed by the woman herself under the counsel or command of the defendant. Nor does the statute distinguish between the administration with intent to produce an abortion which succeeds and that which, for whatever cause, does not succeed. See 2 Trickett on Pennsylvania Criminal Law, 571, and cases therein cited.

It is proper, therefore, that the defendant should defend under the first count in the indictment now found.

It will be noted that the 88th section of the Act of March 31, 1860, cited above, is based upon the intent of the accused to procure a miscarriage of the woman. If, under such a count, the jury finds as a fact that no intent existed, the defendant would be entitled to an acquital. The legislature, realizing the dangerous character of such drugs as will produce an unlawful abortion, and seeking to regulate such, enacted the Act of May 12, 1897, P. L. 63, prohibiting the giving of such drugs, regardless of the intent accompanying the same, and making such violation a misdemeanor.

The defendant, in the instant case, therefore, in the event that the jury should not find as a fact that it was his intent to cause the miscarriage of Miss Wolfe by the giving of the alleged drug, could still be convicted of a violation of the Act of May 12, 1897, P. L. 63.

It is proper, therefore, that the defendant should defend under the second count of the indictment as now found.

The Act of May 12,1897, cited above, further makes the act of representing that such a drug when given will procure an unlawful abortion a misdemeanor. The information avers such facts in the instant case, and it is also proper that the defendant should defend under the third count of the indictment as now found.

And now, Jan. 4, 1929, the motion of the defendant for the quashing of the proceedings and for the discharge of the prisoner is accordingly dismissed.

Prom S. D. Gettig, Bellefonte, Pa.


author: Per Curiam,

text:
    O’Toole v. Pennsylvania Railroad Company.

      Murphy & Levy, for plaintiff; Barnes, Biddle & Morris, for defendant.
    Feb. 21, 1929.
   Per Curiam,

The McCahen Sugar Refining and Molasses Company is located at Delaware Avenue and Tasker Street, in the City of Philadelphia. The Pennsylvania Railroad Company maintains tracks which extend across what is known as Ash Street and into the refining company plant, the tracks being located immediately adjacent to the warehouse of the refining company. Cars for loading purposes are daily placed on said tracks and loaded cars are likewise removed therefrom. There is a platform for loading purposes located immediately off of Ash Street on the premises of the refining company at a height above the ground on a level with the floor of the box cars. At this point a short ladder extended from the ground to the loading platform, and when box cars were placed in the plant for loading it was impossible to use the ladder except when the open space between box cars was opposite the ladder.

On July 25, 1925, the plaintiff, an employee of the refining company, returned from his lunch and found a train of box cars standing on said track. The train was coupled to an engine and in charge of a full crew of railroad employees. The plaintiff’s place of employment was beyond! the blocked track. It was necessary for him to go by the train in some manner or to wait until the cars were removed from the track across Ash Street. There were three cars and the engine on the outside of the refining company and seven cars in the shed and on the premises of the refining company.

The testimony on the part of the plaintiff shows that there were forty or fifty men, employees of said refining company, congregated on Ash Street in front of said plant and at the railroad crossing awaiting an opportunity to return to their work after the noon-day lunch. The train’s presence on the track on this particular day was not unusual. It was a regular everyday occurrence for more than two years previous to that day. The plaintiff and other employees knew that the defendant’s train came in at the noon horn* each day with empty cars and removed the loaded ears and placed the empty cars for loading. Plaintiff stood by for about ten minutes waiting for the train to move off of the premises and Ash Street, but, desiring to return to his work, decided to wait no longer and undertook to use the ladder at the loading platform. As he ascended the ladder the train moved, and as there was no room for his body between the warehouse and the side of the box car, he was rolled and injured.

There was located within a few feet of the loading platform a door leading into Ash Street, through which employees entered to reach a bridge across the tracks into other parts of the.refining company plant. It was testified to by the plaintiff and other witnesses in his behalf that at the time of the .aceident a man, sweeping and cleaning about the premises, was coming through the doorway on to Ash Street with a barrel partly filled with sweepings and rubbish, and that said cleaner and his barrel temporarily interfered with the free use of said door. The plaintiff had before him for his consideration three ways of reaching his place of employment. One absolutely safe way was through the door by removing the barrel of rubbish or stepping around it. Second, by waiting until the train moved, which was momentarily expected by him, and then using the ladder to the platform. And, third, by taking chances on the train notimoving for a moment or two, using the ladder which was immediately in front of the open space between two box cars. He chose the last and only dangerous way and now'complains that the defendant company was negligent in moving the train while he attempted to use the ladder.

The plaintiff was not engaged- for the refining company in any work in and about the railroad train. He had no duty or work on the tracks or at the immediate place of the accident, and, as said by the Supreme Court, opinion by Mr. Justice Kephart, in Sweatman v. Pennsylvania R. R. Co., 264 Pa. 286, 289: “Had he taken the slightest precaution an ordinarily prudent man would take, he would not have been killed (injured).”

The plaintiff testified that he was familiar with the movement of the train that blocked' his way and that he had seen the cars moved into place just a few minutes before the accident and that he knew, also, the train might start at any moment. Plaintiff’s testimony (page 25) being as follows: “Q. You had seen the draft, I think you said, backing in a few minutes before? A. Backing in, yes. A. I didn’t see the engine, but I saw the cars moving back in, and there must .have been an engine on it.” And on page 26: “Q. Now you knew, of course, the train might start any minute, didn’t you? A. Yes.” Plaintiff was familiar, also, with the steps leading into the platform and observed that a cleaner, gathering rubbish into a barrel, was moving the barrel through the doorway and that this doorway afforded a safe entrance to the building. And on page 29 he testified: “Q. You could have pushed your way by the barrel, couldn’t you? A. I could have, yes. Q. Or you could have waited until the passageway was clear and the barrel was taken away? A. I couldn’t very well wait because I had to be back to work. Q. You were in a hurry? A. No, I wasn’t in a hurry, but I was told to be back there as soon as I could after dinner; as soon as possible.” And on page 31: “Q. I understand that for several months these drafts of freight cars had been coming in at 12 o’clock and then leaving as soon as they were loaded, and usually between 12 and 1 o’clock. Is that right? A. Yes. Q. So that you knew the train might back out any time for that reason? A. They come in and go out when they want to.”

The plaintiff was familiar with all of the conditions which confronted him. He had met the same situation1 daily for many months previous to the date of the accident. He was not a stranger to anything that occurred at that time. He had seen the train backed into the place where it stood and knew that at any moment it would move again, in which event the use of the ladder might in all probability result in fatal injury. And yet, with the great danger obvious to him, he assumed the dangerous way, although he knew that he could proceed safely by the door in which the barrel was located by either passing around the barrel or removing the barrel from the doorway. There is no evidence that the barrel was too heavy to be removed. It contained sweepings and rubbish and was being handled! by the man who did cleaning about the premises. It was known to the plaintiff and all other persons in and about the premises that the ladder which the plaintiff used could not possibly be used by any person while box cars were moving on the loading track. Yet plaintiff, knowing that theicars had just been moved and were about to move again, placed himself in this highly dangerous position. The men in charge of the train were not called upon to anticipate that persons would use the ladder • in question under the circumstances that existed at the time of the accident, any more than they had a right to anticipate that some person might crawl under the train or over the train or through between two cars in order to reach the other side of the track. It is in evidence that forty or fifty men, returning to their work as plaintiff was returning, stood by, awaiting the moving of the train before proceeding to their place of work.

We, therefore, conclude that the plaintiff is clearly guilty of contributory negligence and not entitled to recover against the defendant company for the injuries sustained. This conclusion is supported by Bardis v. Phila. & Reading Ry. Co., 267 Pa. 352. In this case, the plaintiff was engaged by an industrial plant in removing coal from between two tracks and assumed a position of danger not necessary for him to.take. The engine, shifting cars on the main tracks, struck the plaintiff and injured him. The court held that contributory negligence prevented him from recovering. Since the plaintiff was not using the track where he was injured, or working on it, no duty to give warning was owed him. Trainmen need not be observant where they are not required to anticipate the presence of workmen or- others on the tracks, nor are they required to anticipate the negligence of the plaintiff.

And in Cubitt v. N. Y. C. R. R. Co., 278 Pa. 366, the defendant railroad had built a siding connecting its main track with the Atlantic Refining Company’s power house. Cubitt was killed while standing on a track where his work did not require him to be. The court held that he was guilty of contributory negligence and could not recover: “Even in such a ease, if the employee had taken a position not required in the performance of his duties and injury results, no recovery can be had. The,fact that the defendant was negligent in not giving a signal or in running its engine backwards did not relieve the deceased from using proper care.” Other cases supporting 'this conclusion are: Hardy v. Lehigh Valley R. R. Co., 240 Pa. 454; Cunningham v. Phila. & Reading Ry. Co., 249 Pa. 134; Gentile v. Phila. & Reading Ry. Co., 274 Pa. 335; Haven v. Bridge Co., 151 Pa. 620; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Neal v. B. R. & P. R. R. Co., 289 Pa. 313.

In the last case, the Supreme Court said (289 Pa. 318): “Neal, a railroad man of six years’ experience, thoroughly familiar with the situation, knowing that a coupling was being made with the sand car . . . stepped between the ears and was instantly caught. He could have waited a moment ... or could have walked around by Philadelphia Street. He did none of these things, but rashly stepped between the cars at a time of danger and thereby assumed the risk.”

And on page 319 it said: “It is the duty of one working around railroad tracks to look out for his own safety (Sweatman v. Pennsylvania R. R. Co., 264 Pa. 286), and no recovery can be had for an injury sustained while voluntarily taking a chance or testing a danger.”

In the case of Baltimore & Ohio R. R. Co. v. Newell, 196 Fed. Repr. 866, it is held: “Clearly the railroad1 company was not obliged, in considering the dimensions of that space, to provide for the safety of one who voluntarily placed himself therein. . . . This platform was not a concealed object or one difficult of observation, and the plaintiff unquestionably was familiar with its existence and location during the whole period of his service (six years). Not only was the space between the car and the platform obviously not a place in which the plaintiff or any other employee was required to work . . . but there is no evidence that at any other time such work was required to be done in that space.”

The ladder in the- present case was a safe means of reaching the loading platform when cars were not in motion or about to be moved, but it was known to all persons familiar with the location thereof and the movement of trains to be unsafe and1 highly dangerous when a train was about to move.

Counsel for the plaintiff earnestly, and with considerable force, contends that the case of Diehl v. Lehigh Valley R. R. Co., 254 Pa. 404, rules the present case. The facts there, however, are different. The plaintiff’s husband was a freight conductor in the employ of a steel company, and it was his duty to work in the railroad yard where he was run down and killed. And it appeared (page 254): “While there is evidence that deceased might have avoided stepping between the cars by passing around the scales to the opposite side of the track, the method he adopted was not unusual, nor so obviously dangerous, as to convict him of negligence as matter of law. The car on the scales was detached from the train. The engineer was not expected to move the remaining ones until signal to do so, and no other train was- permitted to use the track when occupied for weighing purposes.” In the present case, the danger was obvious and the plaintiff expected the train to move out any moment.

Therefore, under all the evidence and the law, the motion for judgment non obstcmte veredicto is sustained and judgment directed in favor of the defendant.


author: VAN Dtjsen, J.,

text:
    Gallaher’s Estate.

      Eric A. MeCouch, for exceptant; J. Claude Bedford, contra.
    April 26, 1929.
   VAN Dtjsen, J.,

Testator left his residuary estate in trust to pay to iiis mother for life “the one-half of the net income,” and to his wife for life “the remaining one-half of the net income.” Upon the death of both mother and wife, he gave “the net income from my whole estate” for the education of young men at Lafayette College:

“Provided, however, that after the death of my mother, Emily Jane Gallaher, should my nephew, Charles T. Gallaher be then living, I order and direct that the one-half of the income which she had received during her life, shall be given by my Trustees in such payments as they find possible, but not less than yearly, to Charles T. Gallaher, the remaining one-half part to be put into the trust fund as provided.”

The phrase “the one-half of the income which she had received during her life” is ambiguous, as it is uncertain whether the antecedent of “which” is “the income” or “the one-half of the income.” The word “the” before “one-half” would be equivalent to “the said,” and would indicate that the reference is to the mother’s whole share (which was one-half), if we did not find that testator used the same expression in giving the mother “the one-half” in the first place, where there is no antecedent to refer to. It may be only his mode of expression.

But the last clause of the proviso reads: “the remaining one-half part to be put into the trust fund as provided.” The proviso is dealing only with the mother’s income after the mother’s death, and this cannot be a reference to the half of the whole income which was given to the widow. It must mean the other half of the mother’s share; and this conclusively shows that the nephew is to get only one-half of that share. .

The wife elected to take against the will, and as there were no children she took one-half. The mother during her lifetime received all the income of the remaining estate, following the legal death of the wife. The nephew must get half of what the mother got, and the conclusion of the Auditing Judge was right.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Smith, P. J.,

text:
    Commonwealth v. Force.

      E. P. Little, District Attorney, for Commonwealth.

      F. A. & E. L. Davies, for respondent.
    July 23, 1928.
   Smith, P. J.,

The defendant was found guilty generally under an indictment of two counts; one charging assault and battery, and the other assault and battery with intent to commit rape, both upon the person of Esther Muss, a minor, but above the age of sixteen years.

While we have no doubt that the information of the assault and battery, under the statute, is a necessary ingredient of the attempt to carnally know the female, i. e., that “forcibly and against her will” the defendant sought to commit the major offense, a verdict of guilty upon the second count denominating this offense would obviously include guilty upon the first count of an assault and battery.

It is equally true that the defendant might be found guilty of such violence inflicted for the purpose of obtaining sexual intercourse, i. e., with the intent to commit rape under the second count. This principle, no doubt, moved the learned attorney for the defendant to present his third request for special charge to the jury, which we quote: “If you find from the evidence that the defendant did lay hands on the prosecutrix, as she alleges, but only with the intent to gain her consent to sexual intercourse, then you must find the defendant not guilty of assault with intent to commit rape.”

In this connection, we note that our refusal to affirm this point was not filed as one of the original assignments of error, but it was only presented with briefs of argument and our consideration of it requested, which we cheerfully accord for two reasons: First, that it appears that in our order granting rule for new trial there was not incorporated any limitation as to time for filing reasons, which was our oversight; and, second, we are always willing to correct any substantial error necessary to effect justice.

In the haste of the trial, we were of the opinion that the point was not applicable to the facts of the case as developed by the evidence, and were in the attitude of mind as expressed by Butler, P. J., as to an analogous proposition in Com. v. Jackson, 24 Dist. R. 831. This learned jurist in that case, in granting a new trial, where the charges against the defendant were the same as at bar, indicates his opinion that the force used by the defendant upon the female might be of the character and purpose only to secure consent to sexual intercourse, rather than to consummate his purpose against consent, and it was the province of the jury under all the evidence to determine the question.

The constituents necessary to be proven of the crime of assault and battery by one upon a female “with intent to commit rape,” under the 92nd section of the Crimes Act of March 31, 1860, P. L. 405, are: (a,) That assault and battery must have occurred; (b) the “intent” of the defendant to commit the major offense; (c) both “forcibly” and against the will of the female.

It is to the above requisites (b) and (o) that the assignments of error now being discussed are related; their proper legal interpretation implies that the violence or force applied must overcome the will or consent of the female; the language is not only “forcibly,” but “against her will,” and in the interpretation of an act of assembly, we are controlled by the rule that, “In the absence of doubt or authority, the court will give effect to the plain meaning of the words used by the legislature according to their common interpretation:” Com. v. Krickbaum, 199 Pa. 351, and other citations: 8 Vale Digest, 24852; or “The maxim is that, in the absence of authority, no exposition of a statute shall be made which is opposed to the express words:” Reimer Harrow Co. v. Rosenberger, 16 Phila. 191. Again, “It is always unsafe to depart from the plain and literal meaning of words, out of some supposed intent, which would prevent their application to a given subject:” Pittsburgh v. Kalchthaler, 114 Pa. 547. And this rule applies to the language just quoted from the statute associated and related in the text.

While it may be and is difficult to conceive that “willingness” of the female to submit to such violation of her chastity by any degree of “force,” resulting ifi an assault and battery, and at the same time negative the “intent” of the defendant to actually thereby consummate his original purpose. But when we consider the nature of the evidence of Esther Muss, the prosecutrix, and the only witness on the part of the Commonwealth testifying to the alleged overt acts of the defendant, that such act occurred upon the Lackawanna Trail, a prominent State highway much traveled and in the daytime, and of which the defendant had knowledge, living near this highway and almost daily going upon it, and presumably cognizant of the fact that at any moment other travelers upon it might pass along and witness his conduct; further, that the force used, viz., seizing the prosecutrix and placing his hands upon parts of her body as she described, using language not of threat to violate her chastity, but requesting that she “give him a piece,” we believe it competent for the jury to consider and decide whether from these facts, assuming their belief of them, it was not the purpose of the defendant to abandon further force or violence should he not then secure her consent to sexual intercourse, rather than consummate it by actual and continual physical force “against her will.”

It is a question of nice discrimination and fine distinction, but we are of the opinion, supported by the language of the statute under the authorities we have cited, that while, without the third point submitted, had we omitted, as was the case, to so instruct the jury in our general charge, it would not have been reason for a new trial, our refusal to affirm the point compels us to the conclusion that a new trial should be granted.

The only near direct authority for our position is that submitted by the learned attorney for the defendant from the Court of Appeals of Texas, viz., Walton v. State, 15 S. W. Repr. 646, where it appears a defendant was prosecuted under a Texas statute for the crime of “burglary with intent to commit rape.” The court interpreted “rape by force,” used in the Penal Code of the state, as “carnal knowledge of a woman, obtained by force without her consent,” and defines the meaning of the term “force” as “such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case;” thus, statutory “force” is an essential constituent of the full and complete substantive offense of rape, and where a party is charged with an attempt to commit rape, he is charged with intending to use such “force,” and the jury must be instructed that they must find that he intended to use such force before they can convict him, and quoting from the Supreme Court of Iowa: “The gist of the offense charged is the intent with which the act is done; defendant must have intended to commit rape. To constitute such intent, he must have had a purpose not only to have sexual intercourse with the prosecutrix, but must have intended also to use whatever degree of force might be necessary to overcome her resistance and accomplish his object. Rape is defined as ‘the having unlawful sexual knowledge of a woman by force against her will,’ and intent to commit the crime includes an intent to overcome the resistance of the woman and accomplish the connection by force.”

Thus deciding, it is unnecessary to discuss the remaining assignments of error; however, because of request of defendant’s attorney appended to additional reasons this day filed, we feel called upon to notice in a general way the assignment relating to our additional instructions to the jury at their request after retirement to consider their verdict.

The notes of testimony filed show that the jury first retired for deliberation upon their verdict at five o’clock P. M., Aug. 11, 1926, the usual time of adjournment for the day, but not then so adjourned, but continued in session until actually adjourned, as the clerk’s minutes will show, at “8.10 P. M.” Quoting “court adjourned at 8.10 P. M. to call Thursday, Aug. 12, 1926, at 9 o’clock A. M.”

Again referring to stenographer’s transcript of testimony, it is stated: “And now, Aug. 11, 1926, 7.40 P. M., the jury came in for additional instructions.” Then immediately following and as part of the certified copy of notes of testimony and charge of court filed in the clerk’s office Sept. 11, 1926, is a transcript of the “additional instructions” given. Making it apparent that such were given in open session of court and not as in Com. v. House, 6 Pa. Superior Ct. 92, and Com. v. Grove, 91 Pa. Superior Ct. 553, after adjournment and not while court was actually convened; or in Fillippon v. Albion Vein Slate Co., 250 U. S. 76; 39 Sup. Ct. Repr. 435, where the “additional” instructions were in writing sent out by the trial judge to the jury at their jury-room. But whether the absence from the court-room of both defendant at bar and his counsel when our supplemental instructions were given to the jury under the circumstances above stated was an error prejudicial to the defendant we do not now decide.

Order. — And now, to wit, July 23, 1928, motion for arrest of judgment overruled. Rule for new trial made absolute for the one reason only: of our error in not charging the jury as requested in defendant’s third point.

From Gerritt E. Gardner, Montrose, Pa-


text:
    In re Opening of Munday Lane.

      Dewalt & Heydt and Edwin K. Kline, for exceptant.

      Oliver W. Frey, for township.
    Dec. 24, 1928.
   Reno, P. J.,

The Township of Whitehall, a township of the first class, has enacted the opening of Munday Lane. The exceptant is the Hillside Cemetery Association, and it alleges that the proposed road will, in violation of the General Township Act (July 14, 1917, § 496, P. L. 840), pass through its burial-ground or cemetery. The township, in its answer, “alleges . . . that the land of the exceptant, through which the proposed road passes, is not now, nor has it at any time been, used as a cemetery or a burial-ground.”

Thus, at the outset, we are confronted with an issue of fact which, in the nature of things, must be decided before an opinion upon the law can be formulated. For the right of the corporation “to the protection of the land for burial purposes . . . should date from the time” it actually declares the “intention to use it for such a purpose, and not from the inception of title to the land. . . . That act will not apply to this land until it was in fact a cemetery or graveyard:” United Brethern Congregation v. Emaus Borough, 56 Pa. Superior Ct. 136, 145. Hence, there must be brought upon the record proof that the land is in fact a cemetery and not merely that it is held by a cemetery company.

The General Township Act makes no provision for bringing the evidence upon the record by way of depositions when exceptions have been filed. But in analogous proceedings, evidence in support of exceptions has been received by depositions (Neeld’s Road, 1 Pa. 353); or testimony received thereon by the court itself (Franconia Township Road, 78 Pa. 316); and a noted authority holds that when exceptions are founded upon a matter of fact, they must be supported by evidence in the form of depositions or otherwise, or they will be dismissed: Vide Trickett on Boroughs, 572. Indeed, under the Act of June 7, 1901, P. L. 510, section 1, which was practically re-enacted by the General Township Act, facts necessary for a decision upon exceptions were brought upon the record by exceptions: Old Lancaster Road, 17 Dist. R. 1076.

Now, Dec. 24, 1928, exceptants are granted leave to take and file depositions within thirty days from date. From Edwin L. Kohler, Allentown, Pa.