author: Gest, J.,

text:
    Paul’s Estate.

      Collateral inheritance tax — Commonwealth’s right thereto not affected by renunciation of legatee — Acts of June 20, 1919, and May U, 1921.

    Under the Act of June 20, 1919, P. L. 521, direct and collateral inheritance taxes accrue immediately upon decedent’s death, and the Commonwealth’s right thereto is not affected by a subsequent renunciation of the legacy by- the legatee. Hence, where testatrix died after the passage of the Act of May 4, 1921, P. L. 341, and a collateral legatee renounced his legacy, which thereupon fell into the residue, bequeathed to lineal descendants, the Commonwealth is entitled to a tax of 10 per cent, notwithstanding such renunciation.
    Appeal from the Register of Will’s assessment of inheritance tax. O. C. Phila. Co., July T., 1921, No. 179.

      B. Sturgis Ingersoll (representing Bollard, Spahr, Andrews & Madeira), for appellant.

      Robert W. Finletter, for the Register of Wills, respondent.
    Dec. 3, 1921.
   Gest, J.,

The facts are as follows: Rebecca Paul died July 7, 1921, leaving a will, dated July 13, 1920, admitted to probate shortly after her death at a date not stated in the pleadings, in which, inter alia, she provided:

“Item Three. I direct my Executrix hereinafter named to pay to my son-in-law N. McLean Seabrease the sum of Five Thousand Dollars ($5000) in full for all services rendered by him in the handling of my property, said sum to be accepted by him in full compensation.

“Item Four. All the above legacies shall be paid free and clear of inheritance tax, State or Federal, which shall be borne by my residuary estate.”

And by item five she devised and bequeathed her residuary estate, real and personal, to her daughter, Helen P. Seabrease, who is the wife of N. McLean Seabrease, and who was appointed executrix of the will.

In due course the Register of Wills appointed Harry A. Connor appraiser, who, on Aug. 5, 1921, filed his appraisement, assessing a tax of $475 upon the above legacy to N. McLean Seabrease, being at the rate of 10 per cent., less 5 per cent, discount.

This appeal was taken Sept. 1, 1921, from the above assessment.

On July 23, 1921, which was stated to be soon after the probate of the will, and was before the appraiser filed his appraisement of the tax, N. McLean Seabrease filed with the Register of Wills a renunciation of the legacy bequeathed to him, which renunciation was in the following form:

“Philadelphia, Pa., July 23, 1921.
“I, N. McLean Seabrease, hereby waive, relinquish and renounce the legacy of Five thousand dollars ($5000) bequeathed to me in the last Will and Testament of Rebecca Paul, deceased.
Witness: (Sgd.) N. McLean Seabrease.”
(Sgd.) Will A. Clader.

The first question for determination is the bona fides of this renunciation, for it is evident that an improper motive might readily exist in a case of this kind. If the legatee had retained his legacy, it would be taxable at 10 per cent., a-s the testatrix died after the passage of the Act of May 4, 1921, P. L. 341; whereas, if he renounced it, the legacy of $5000 would, as might appear from a dictum in Wonsetler v. Wonsetler, 23 Pa. Superior Ct. 321, fall into the residue, which is bequeathed to his wife, Helen P. Seabrease, and be taxable at only 2 per cent.

Mr. Seabrease and his counsel, Boyd Lee Spahr, Esq., were examined, and the notes of their testimony are appended. I am clearly of opinion that in this case the renunciation was entirely bona fide and not caused by any, desire or intention on the part of the legatee to evade the payment of tax. His motive was stated by himself to be that he did not consider himself entitled to any compensation for any services he had performed for his mother-ih-law, the testatrix, and that, on the contrary, she did a great deal more for him during her life. The good faith and veracity of Mr. Seabrease are evidenced by the fact that he might have perhaps claimed the legacy free of tax, on the ground, as the will states, that it was given to him in compensation for services rendered by him to the testatrix in the handling of her property. This would have raised an entirely different question, which might have been decided in his favor, as is shown in Gibbons’s Estate, 16 Phila. 218; Carst v. Hoover’s Exec’rs, 32 Pa. C. C. Reps. 77, and other cases cited. At all events, I find as a fact in this case that the renunciation was bona fide.

The next question is whether the appraisement and assessment of the legacy at 10 per cent., instead of 2 per cent., is according to law, and in behalf of the appellant Mr. Ingersoll submitted a carefully prepared and able brief. His first point is that the Inheritance Tax Act of June 20, 1919, P. L. 521, imposes a tax on the succession or transfer of property, and in this case there has been no succession or transfer to Mr. Seabrease. But the Act of 1919 is entitled “An act providing for the imposition of taxes upon the transfer of property passing from a decedent,” and its operative words in section 1, which are applicable to the present case, are that “a tax is imposed upon the transfer of any property, real or personal, to persons or corporations, . . . when the transfer is by will or by the intestate law from any person dying seized or possessed of the property.” What is taxed, therefore, is a transfer by will or the intestate law; no distinction is made between the two cases, nor is there any distinction between real and personal property. So long as the owner lives, he retains the ownership of the property, but his ownership ceases at his death, and it is his death that effects the transfer to another. If he dies intestate, the ownership is transferred to his heirs or next of kin as designated by law, but if he leaves a will, the testator himself designates the persons who take. But in either case, and in every case, the transfer of the property is due to the death of the owner and occurs at that time. This is the essential thing. The property, either real or personal, may indeed be taken for debts or may be subject to marshaling, but these administrative details are, in the language of logic, accidents, and do not concern or affect the essence of the matter. When, therefore, Mrs. Paul died, eo mstanti, the property that she had previously owned was transferred to the persons whom she designated in her will, and it is this transfer that is taxed by the act of assembly: Lines’s Estate, 155 Pa. 378; Small’s Estate, 11 Pa. C. C. Reps. 1. That the legacy vested in N. McLean Seabrease immediately on Mrs. Paul’s death is, of course, obvious. Had he died during the next hour, his personal representative would have been entitled, and his creditors, at any time before he renounced it, could have attached his interest, even if he had been ignorant of the legacy: Tarr v. Robinson, 158 Pa. 60; Heilig v. Heilig, 28 Pa. Superior Ct. 396.

It was, indeed, argued that as section 21 of the Fiduciaries Act of June 7, 1917, P. L. 447, provides that a legacy shall be deemed to be due and payable at the expiration of six months from the death of the testator, it follows that the legacy does not vest in the legatee, except after an order of distribution; but this is certainly not so. The legacy vests at once, although it cannot be demanded for six months, or, under the old law, for one year, but this is merely for the protection of creditors and the convenience of the executor in the settlement of the estate: Swinburne on Wills (7th ed.), Part IV, § IV, 20; Gill’s Estate, 24 Dist. R. 1.

Of course, a legatee may renounce his legacy, but the very fact of renunciation implies that he has something to renounce. Had he assigned it, of course the assignee would take subject to the Commonwealth’s right to the tax. By his voluntary act, Mr. Seabrease divested himself of his right to receive, but the question here is whether his act divested the Commonwealth of its right in the premises.

The decisions of our Supreme Court, cited by the learned counsel for the appellant, do not lead to any different conclusion. They were decided, it is true, under the prior Act of 1887, which in terms imposes the tax on the estate passing by will or intestate laws, but they seem to emphasize the principle that the tax is laid upon the right to take rather than the property taken. It is said, for example, in Orcutt’s Appeal, 97 Pa. 179, that the tax is on the net succession to the beneficiaries, and in Finnen’s Estate, 196 Pa. 72, stress is laid on the distinction “between the levying of a tax upon the specific property of a legatee after it has become vested in possession and imposing a charge or tax upon the right to have the property by way of succession to the estate of a decedent.” And this very distinction is further emphasized by the language of the present Act of 1919, which, as I have shown above, imposes a tax upon the transfer of property by means of the death of the owner.

Pepper’s Estate, 159 Pa. 508, and Kerr’s Estate, 159 Pa. 512, were also cited, but these decisions are not in point. In these cases moneys paid by way of compromise to contestants, who were not legatees under the will, were held not subject to tax, the reason, as stated by Penrose, J., in the latter case, being: “The allowance or compromise of their claims simply reduces the estate afterwards passing to volunteers, with the same effect as if the reduction had been caused by the payment of debts, or as if the payment or surrender had been the result of a suit terminating in favor of the claimant.”

I now pass to a consideration of Frank’s Estate, 28 W. N. C. 323; 9 Pa. C. C. Reps. 662; 20 Phila. 139. There an intestate left a widow and a sister, so that his residence descended to the sister as his heir-at-law, subject to the widow’s right as tenant for life in one-half. The widow continued to reside there, and. the sister of the decedent, about sixteen months after decedent’s death, conveyed the property to her, in order, as her deed recited, to carry out the intention of the decedent. It was held that the sister’s interest was liable for collateral tax. Hanna, P. J., used the following significant language:

“The release or conveyance by a devisee, legatee or distributee, after the devise, legacy or distributive share has once vested, will not deprive the Commonwealth of the collateral inheritance tax. The tax accrues immediately upon the death of the testator or intestate. And payment cannot be evaded by a conveyance or assignment to one whose right of succession is not subject to the tax. A devisee or legatee may waive all claim and refuse the bounty of a testator, or to share as a distributee, but if he be a collateral heir or stranger to the blood of testator, the tax remains due and payable. ...
“It is, therefore, contended because the sister waived and relinquished her interest in the real estate for a nominal consideration in favor of the widow, it is thereby relieved from payment of the collateral tax. But, as shown, this is a mistaken view of the law. The sister inherited the real estate of her brother immediately upon his death. It then passed to her, and by virtue of the Act of May 6, 1887, P. L. 79, at once became liable to the tax. The widow obtained title from her after she became the owner by operation of law, and when she so conveyed, it was subject to the lien of the tax which accrued at the death of the decedent.”

The learned counsel for the appellant endeavored to distinguish Frank's Estate, on the ground that it concerned real estate which vested in the heir by operation of law, and that the heir must, in order to divest his title, make a retransfer; whereas, in the present case, the residuary legatee will receive the property under the will of the testator and not by any assignment by the collateral. I think the distinction is unsound. The act of assembly makes no distinction whatever between real and personal estate. Judge Hanna evidently thought so, for he says in the passage quoted: “The release or conveyance by a devisee, legatee or distributee after the devise, legacy or distributive share has once vested, will not deprive the Commonwealth of the collateral inheritance tax. The tax accrues immediately upon the death of the testator or intestate.” I repeat, the tax is on the transfer caused by the death of the owner. Payment or assignment of the legacy by the executor to the legatee is merely part of the administrative machinery provided by law for the orderly settlement of the estate.

In distinguishing Frank’s Estate, stress was laid by counsel on the fact that in that case the heir conveyed directly to the widow, while in the case at bar the legatee simply renounced. The opinion of Judge Hanna above quoted shows, however, that he decided Frank’s Estate on a more general ground, and I fail to see any substantial distinction. To renounce means, as a term of law, to give up or to surrender a right. What difference does it make whether the right to receive a legacy is renounced for the benefit of the residuary legatee, or directly assigned to her? The effect would be the same; in either case the residuary legatee would receive the pecuniary legacy by the act of the legatee, and the form of the act seems immaterial, so far as the Commonwealth is concerned. I, therefore, consider the principle of Frank’s Estate as ruling the present case.

Mr. Ingersoll also cited Wolfe’s Estate, 89 App. Div. (N. Y.) 349; s. c., 179 N. Y. 599, and Cook’s Estate, 187 N. Y. 253; also Stone’s Estate, 132 Iowa, 136, as sustaining his contention. These cases are, of course, not authority here, and, in view of what has been already said, I do not think it is necessary to discuss them in detail, but it may be observed that the New York statute, as quoted in 89 App. Div. (N. Y.) 350, defines the transfer to include the “passing of property or any interest therein in possession or enjoyment,” the important words being thus italicized in the report; while in Stone’s Estate, 132 Iowa, 136, it appears that the probate of the will was set aside by judicial decree, so that strictly nothing passed under the will. It was a case of compromise, resembling Pepper’s Estate and Kerr’s Estate, above referred to. Gleason & Otis on Inheritance Taxation, 248, cited by Mr. Inger-soll, while citing Wolfe’s Estate and Stone’s Estate, adds that the Pennsylvania courts arrive at the contrary, and, perhaps, more logical conclusion, and refer, in addition to Frank’s Estate, to the case of Small’s Estate, 11 Pa. C. C. Reps. 1.

And now, Dec. 3, 1921, the above appeal of Helen P. Seabrease, executrix of Rebecca Paul, having come on for hearing, it is ordered and decreed that the appeal be dismissed and the assessment and appraisement of the legacy of $5000 bequeathed to N. McLean Seabrease by the will of said Rebecca Paul be confirmed.


source: Caselaw Access Project

author: Maxey, J.,

license: Public Domain

text:
    City of Scranton v. Romuglia et al.

      Municipal ordinance — Circulation of printed matter — Ultra vires municipal ordinance.

    That part of the Ordinance of the City of Scranton, File of the Common Council, No. 81, year 1907, which provides that no person be permitted to distribute or circulate printed matter of any character within the city limits before first registering with the director of public safety and paying SO cents, and providing penalties for the violation thereof, is void as being beyond the corporate powers of a city of the second class.

      Certiorari. C. P. Lackawanna Co., Oct. T., 1920, No. 747.

      J. K. Barrett, Assistant City Solicitor, for plaintiff.

      J. J. Levy, for defendant.
    April 18, 1921.
   Maxey, J.,

Defendants are charged with violation of part of section 2 of an Ordinance of the City of Scranton, entitled “File of Common Council, No. 81, 1907, as amended in Common Council, March 12, 1908, being an ordinance ‘to license bill-posters; regulating the posting of bills and the circulating of advertising matter, and the manner of doing business; regulating construction and maintenance of bill-boards; prescribing license fees for the same, and penalties for violation thereof.’ ” Defendants are particularly charged with “distributing and circulating on July 26, 1920, in the City of Scranton, . . . printed matter to wit, newspaper advertisements, hand-hills and other printed matter within the limits of the City of Scranton, before first having registered with the Director of Public Safety and paying 50 cents for a permit issued by said director,” etc. That part of section 2 of said ordinance which defendants are charged with violating reads as follows: “That no person or persons be permitted to distribute or circulate printed matter of any character within the city limits before first having registered with the Director of Public Safety, and upon payment of 50 cents he will issue a permit good for one year, to be used only by person named, and transferable only on written authority of the said director.”

The evidence offered in behalf of the prosecution was as follows:

Patrolman Edward Jones: “. . . I had a call in the 1800 block, Pittston Avenue, that two men were out there again handing out bills and blocking the sidewalk up; so I went out and Martin was on the walk there entertaining a crowd of about fifty people. . . . These two men, Martin and Romuglia, had the bills on their arms. I didn’t see them pass any out at the time, but a young man there said to me, T have one here that was just given to me.’ ” This young man’s name, the witness said, was Michael R. Pittle. The witness identified the bill, and was asked if he saw it circulated himself, and he answered, “No.” The officer later says that he “saw them (the defendants) handing the little ones out.” It does not appear just what the “little ones” consisted of. The witness was asked, “Do you know whether or not the little one is a clipping from a newspaper?” He answered, “I don’t know whether it is or not.”

Michael R. Pittle was called as a witness and shown a paper marked on the back, “Michael R. Pittle,” and he said he received it from Mr. Martin. He was asked, “Did you see any other handed out there?” He answered, “I seen them handled there, but I didn’t see any given out — any more.” He said he saw several girls have them, but he didn’t know who gave them to the girls.

Pearl Klosky testified that she saw the defendants “giving around different papers.” She was asked what kind of papers they were giving around? She said, “It was cut from a newspaper, I guess — the M. & M. strikers, I guess.”

Frances Cannon testified that she saw the defendants “passing circulars yesterday.” She was shown a paper with Mr. Pittle’s name on the back of it, and she was asked, “It that the one you saw handed out?” She answered, “That is the kind.”

The foregoing constitutes the substance of the City of Scranton’s testimony. The record does not show that the printed matter in question was put in evidence, and we are not definitely informed as to what the printed matter consisted of.

The defendant, Anthony Romuglia, was sworn. He testified that he was an organizer for a labor union, the Amalgamated Clothing Workers of America. He was asked: “Q. This is one of the circulars you are alleged to have handed out? A. Yes, sir. Q. And did you hand this out? A. I did, yesterday. Q. And in that circular the only thing you set forth is calling a meeting? A. It is an invitation to a meeting. Q. At Polonia Hall, Tuesday, July 27th? A. Yes, sir. Q. Let me ask you about this so-called circular; where did you get that circular? A. Out of the Scranton Republican or Times. I could not say. . . . Q. And the matter set forth in that newspaper clipping calls attention to the M. & M. strikers winning their strike? A. Yes, sir. Q. And that is all it does say? A. That is all it says. It says they want 25 per cent, increase and forty-four hours. Q. And they won that? A. Yes, sir.”

The defendant, M. L. Martin, was sworn. He testified that he distributed circulars “yesterday noon.” He was asked: “Q. This circular here of the meeting at Polonia Hall just calls out a meeting at Polonia Hall? A. Yes, sir.”

The witness denied that he circulated the circulars “last night,” the occasion of the arrest. We gather from the record that these men had been arrested the day before for circulating this printed matter “at noon,” and had been discharged. They were now arrested for circulating printed matter “last evening.” Martin denied that he circulated any such printed matter “last evening.”

The defendants in this proceeding were on July 27, 1920, adjudged guilty and sentenced to pay a fine of $25, and in default thereof to be committed to the county jail for a period of twenty days. Aug. 2, 1920, a certiorari was allowed by the court.

The exceptions filed to the record set forth:

1. That the ordinance whose violation the defendants are charged with is unconstitutional, being defective in title, in that section 2 of said ordinance, under which the defendants are charged, refers to the circulation of any printed matter of whatsoever nature, while the title of the ordinance refers to the regulation of bill-posting and the circulation of advertising matter.

2. That said ordinance is unconstitutional, in that the city council has not the power to regulate the distribution of printed .matter under the general revenue clause, art. ix, § 3, par. 22, of the Act of March 7, 1901, P. L. 42.

3. That the information is defective.

4. That the information on which the proceeding is based fails to set forth the ordinance alleged to have been violated.

5. That the record fails to show any information was served on or read to said defendants.

6. That the evidence shows no sufficient cause of action against said defendants, in that said evidence shows that the defendants circulated advertising matter on the morning of July 26, 1920, and were duly arraigned before the police magistrate, and were discharged in the said case, and that they did not circulate any printed matter thereafter.

7. That the evidence fails to-set forth the substance of the printed matter alleged to have been circulated by defendants, so that, on review by an appellate court, it will be apparent, on inspection, that the proceedings were within the magistrate’s jurisdiction and that the accused were convicted according to law.

8. That the record is defective in other respects.

From an inspection of the testimony in this case, it appears that the gravamen of the offence charged was the circulation by the defendants of certain clippings from copies of a Scranton newspaper, the clipping calling for a certain meeting to be held in a certain hall of the City of Scranton. We do not think that the acts proved against these defendants are within the legitimate purview of the Ordinance of 1907, No. 81, File of Common Council, as amended in Common Council, March 12, 1908. We do not believe it would be argued that the circulation of the newspapers themselves comes under the provisions of the said ordinance, and surely if the unlicensed circulation of the newspapers is not an offence under said ordinance, the unlicensed distribution of a few clippings from said newspapers cannot be an offence under said ordinance. The purpose to be accomplished by said ordinance, apparently, was to levy upon and collect license taxes or fees from bill-posters who make it their business to circulate advertising matter throughout the city. The power to enact such an ordinance is apparently based on section 3 of art. xix of the Act of March 7,1901, par. 22, P. L. 42, that “every city of the second class shall have power for general revenue purposes to levy and collect license taxes or fees, to be fixed by ordinance, upon street railways, hack-drivers, auctioneers, billposters, public balls or dances, night-soilers, garbage collectors, railroad switches, pawnbrokers, peddlers, vendors of any kind of merchandise whatsoever, using the streets, lanes, highways, wharves or public squares or grounds for the purpose of vending the same; all theatrical exhibitions, whether permanent or transient (including circuses), vehicles, bicycles, tricycles, automobiles, dogs, ball games or ball parks, and all other matters and things of a like nature, and to regulate the collection of the same and provide penalties for default therein.” In so far as the ordinance in question provides for the licensing of bill-posters, it is not an ultra vires ordinance. In so far as it attempts to regulate the distribution or circulation of printed matter within the city limits by private individuals, it is beyond the corporate powers of the City of Scranton.

We hold, therefore, that the paragraph of said ordinance which reads as follows, “That no person or persons be permitted to distribute or circulate printed matter of any character within the city limits before first having registered with the Director of Public Safety, and upon payment of 50 cents he will issue a permit good for one year, to be used only by person named, and transferable only on written authority of said director; any person or persons detected by any police officer or other official violating this section to be arrested and disposed of as provided for other similar violations,” is void as not being within the legislative powers of the City of Scranton.

If said paragraph of the ordinance is good law, every newsboy in the City of Scranton, and every candidate for public office and every friend of a candidate for public office who distributes the candidate’s campaign cards, and every other person who distributes or circulates printed matter of any kind, no matter of how innocuous a character, is liable to a fine of not less than $10 nor more than $50, and in default thereof is liable to be imprisoned in the Lackawanna County jail for a period not exceeding thirty days, unless such person first obtains and pays for a permit from the Director of Public Safety to circulate such newspaper or campaign cards or printed matter. We do not think the Legislature of Pennsylvania ever intended to confer upon the City of Scranton, or any other city, a power so to regulate or even to tax the distribution or circulation of printed matter. If so, a municipal corporation could practically prohibit the circulation of any newspaper or other printed matter within the city by simply imposing prohibitive license taxes or fees, upon the persons seeking to circulate the same. The city can go no farther in its ordinance than to levy and collect license taxes or fees upon those persons who, by virtue of their general business of distributing or circulating advertising matter, come under the classification of bill-posters. There is no charge that the defendants in this case were bill-posters and that they were making a business of circulating advertising matter. The acts for which they were convicted were trifling ones, and it would be as reasonable to arrest and convict a newsboy who distributed and circulated the newspapers from which the clippings in question were obtained as to arrest and convict these defendants, who distributed a few clippings obtained from said newspapers.

The second exception, therefore, of the defendants is sustained in part; that is, while we refuse to hold that the entire ordinance in question is void, we do hold that the paragraph quoted is void, that paragraph being the one that attempts to regulate the distribution or circulation of printed matter, and for the violation of which the defendants were convicted.

It is not necessary for us to pass upon the other exceptions of the defendants.

Therefore, now, to wit, April 18, 1921, the judgment of the police magistrate is reversed.

From M. E. McDonald, Scranton, Pa.


author: Prather, P. J.,

text:
    Dale v. Smith.

      Lease — Oil lease — Forfeiture—Failure to operate — Rule to bring ejectment — Remedy.
    1. Although an oil lease contains no clause of forfeiture for failure to operate, still, if the lessee fails to operate producing wells on the premises for a period, of three years without any excuse for delay, the lessor may declare a forfeiture without previous demand on the lessee to operate.
    2. In such a case, the lessor is not limited to assumpsit for damages for non- ' operation. He may rule the lessee to bring an ejectment.
    Ejectment. Trial without jury. C. P. Crawford Co., Sept. T., 1920, No. 110.

      Thomas & Thomas, for plaintiff; Albert L. Thomas, for defendant.
    July 5, 1921.
   Prather, P. J.,

Counsel having filed a stipulation waiving a jury trial,'pursuant to the provisions of the Act of April 22, 1874, P. L. 109, and requesting therein that the court frame an issue pursuant to said rule, the following issue is framed:

The question involved is the right of H. L. Dale, lessee, to continue to operate upon the George Smith land, hereinafter described, for oil and gas, and to pump and market such product.

Therefore, an issue is hereby framed in which H. L. Dale is plaintiff and George Smith defendant. If said leases have not been forfeited, then judgment for plaintiff; if forfeited by plaintiff, then judgment for defendant without prejudice to plaintiff’s right of entry to pull casing and remove all pumping and operating materials and equipment.

From the testimony offered we find the following facts:

1. George Smith, the petitioner, being the owner of certain tracts of land, situate in Wayne Township, Crawford County, Penna., fully described in his said petition, executed three several leases granting to the lessees therein named the right to prospect for oil and gas thereon, and market the same, which said leases are attached to the testimony as Exhibits Nos. 1, 2 and 3.

2. Said leases are dated May 26, 1908, May 16, 1899, and Nov. 28, 1910.

3. The lessees therein mentioned, and their assignees, proceeded to drill six wells on said farm, and produced oil in paying quantities up to about Feb. 1, 1918.

4. By purchase and assignments, said leases vested in H. L. Dale, plaintiff, and his brother, Maurice Dale, as equal owners, and so remained until about -, 1918.

5. In a certain partition proceeding and sale on the-day of-, 1918, at-, Sept. Term, 1918, H. L. Dale became the purchaser and entire owner of the three leases in question.

6. During the year 1917, while defendant was in the employ of the two Dales pumping these wells, H. L. Dale came on the premises and told defendant he could do just as he had a mind to do as to pumping or not pumping these wells.

7. Defendant continued pumping until February, 1918, and then closed them down. The wells have not been pumped since that time, nor at any time since plaintiff became sole owner has there been any operation for oil or gas.

8. This aetion was instituted Aug. 18, 1920, and the testimony taken Nov. 1, 1920, and the case argued in February, 1921.

9. Defendant sent bills at different times to plaintiff for his services in pumping, but received no answer thereto or pay therefor.

10. The leasehold equipment, consisting of gas engine, casing, pumping equipment, etc., is valued at $3000.

11. The oil produced, when pumped, was run into the pipe-line and credited to the lessor and lessee according to their respective interests therein, the lessor receiving a royalty for his share.

12. Of the said leases each provides: “That the second party (lessee), his heirs or assigns, shall have the right at any time to surrender this lease;” each lease also provides that lessee is to “have the right to remove any machinery, fixtures and buildings placed on said (leased) premises.”

Discussion.

It is to be observed that the leases in question contain no clause of forfeiture for failure to operate. The question then arising is, can such a lease become forfeit by lessees’ non-operation for a continuous and indefinite period?

We have a lease with six productive wells connected for pumping, and not an ounce of oil pumped during plaintiff’s entire ownership, a period of nearly three years. If three years of total stagnation will not forfeit a lease under these circumstances, how many years will it require?

In Glasgow v. Chartiers Oil Co., 152 Pa. 48, the Supreme Court, discussing the relations arising and the obligations imposed upon the lessee when oil is produced under a lease, said: “If he (the lessee) explores and finds oil or gas, the relation of landlord and tenant or vendor and vendee is established, and the tenant would be under an implied obligation to operate for the common good of both parties and pay the rent or royalty reserved.”

In Cole v. Taylor, 8 Pa. Superior Ct. 19, the Superior Court, discussing the same question, said: “Assuming that oil could have been produced in paying quantities, there is the fact that the lessees failed to so produce it for a period of two years, and by this means deprived the lessors of their rent, which was payable out of the oil produced. It would seem that the failure so to produce for so unreasonable a length of time ought in equity to work a forfeiture of the rights of the lessees.”

In Aye v. Philadelphia Co., 193 Pa. 451, where an oil lease simply provided for the completion of a test well within a certain time, and the test well proved a dry one, the Supreme Court said:

“The authorities are uniform that under such circumstances there is an implied obligation on the lessee to proceed with the exploration and development of the land with reasonable diligence, according to the usual course of the business, and a failure to do so amounts to an abandonment which will sustain a re-entry by the lessor.
“Abandonment is a question of fact to be determined by the acts and intentions of the parties. An unexplained cessation of operations for the period involved in this ease gives rise to a fair presumption of abandonment, and, standing alone and admitted, would justify the court in declaring an abandonment as matter of law. But it may be capable of explanation, and is, therefore, usually a question for the jury on the evidence of the acts and declarations of the parties: Stage v. Boyer, 183 Pa. 560.”

In Calhoun v. Neely, 201 Pa. 97, 101, the Supreme Court said: “A vested title cannot ordinarily be lost by abandonment in a less time than that fixed by the statute of limitations, unless there is satisfactory proof of an intention to abandon. An oil lease stands on quite different ground. The title is inchoate and for purposes of exploration only until oil is found. If it is not found, no estate vests in the lessee, and his title, whatever it is, ends when the unsuccessful search is abandoned. If oil is found, then the right to produce becomes a vested right, and the lessee will be protected in exercising it in accordance with the terms and conditions of his contract.”

In the same case the Supreme Court continued: “The suspension of operations, abandonment of the search for oil and gas, and relinquishment of the premises for nine years were an unqualified surrender by the appellants of whatever rights they had to perfect their inchoate title. It was their announcement to the lessor that they were done.”

In the case before us we have not a syllable of explanation offered by lessee plaintiff in justification of his conduct. As said in Kreutz v. McKnight, 53 Pa. 319: “The infirmity of plaintiff’s case is that there was an utter failure to show performance or offer of performance of his covenants.”

In that case it is held that: “Lessee being out of possession, he could not recover in ejectment without showing performance or an offer of performance of his covenants.”

In Bartley v. Phillips, 165 Pa. 325, 328, it appears that operations under an oil lease had ceased for something like two years. The Supreme Court, on the question of abandonment, said: “Abandonment is a mixed question of acts and intention, and, therefore, is ordinarily for the jury, and there is nothing in this case to take it out of the rule, for the abandonment was denied in plaintiff’s abstract, and was, therefore, incumbent on defendants to prove before they could avail themselves of it. Whether the evidence on the part of the plaintiffs showed an abandonment by them did not depend exclusively on the length of time that operations had ceased, but also on the intention, and that again was largely dependent on the agreement and understanding of the parties. The plaintiffs denied the intention, and the court, therefore, could not declare the abandonment as a matter of law, but should have left it as a fact to the jury.”

Abandonment can be taken advantage of by the lessor: Bartley v. Phillips, 165 Pa. 325, 328.

To the same effect is McMillin v. Titus, 222 Pa. 500, 511.

It is urged that lessor should have made demand upon lessee to operate so that he could protect himself against a forfeiture of the lease.

The lease does not provide for such notice. Under what authority is a lessor required to act as an intelligence bureau to determine the conduct of a lessee under his written obligation?

It is urged that lessor in some way must declare the lease forfeit before taking any action against the lessee. How is he to declare it? In this case, in the most solemn manner known to the law, he made such declaration in August, 1920, when he entered the rule upon lessee to bring his action in ejectment.

In McKean Nat. Gas Co. v. Wolcott, 254 Pa. 323, 326, the Supreme Court said: “If, before the lessor takes action in the matter, the rent so in arrear be paid or tendered, it heals the breach and saves the tenancy. ... It may be stated as a rule of law that, when a tenant defaults in the payment of rent under a lease giving a right to a landlord to declare it forfeited for this reason, if, before a forfeiture is declared by the landlord, the money or rent due is paid or tendered by the tenant, the right to take advantage of the default as a forfeiture has passed.”

The rents in the case under consideration were the royalties payable to lessor — the oil that was to be run in the pipe-line to his credit.

It is quite possible that lessee might at any time prior to the bringing of this action have resumed his exploration for oil and gas, including the general operation of producing and marketing oil under this lease, and have avoided the forfeiture of this lease. By so doing he at least would have a stronger case for the jury on the question of abandonment. He cannot complain if the court and the lessor interpret his conduct as an abandonment.

It is still urged that lessor’s action should have been in assumpsit for damages for non-operation. It seems clear that lessor might have resorted to such an action, but it does not follow that this remedy is exclusive, nor does it give a defaulting lessee the right to elect the form of action that his lessor shall bring against him.

We fail to see any merit in plaintiff’s contention. If a producing lease could not be profitably operated by pumping and marketing the oil when it sold for $6 a barrel, it would be interesting to speculate when it would be likely to reach a point that would justify normal activity.

Conclusions of law.

1. The leases in question are forfeited, and all rights to operate thereunder, because of the abandonment of all operation for a period of some two and one-half years.

2. Judgment should be entered for defendant and against plaintiff, subject, however, to plaintiff’s right to enter upon said leases to remove all materials and equipment used in connection with the drilling and pumping of said wells.

Now, July 5, 1921, the prothonotary is directed to forthwith give notice to the attorneys of record of the filing of this opinion, and that, if no exceptions thereto are filed in the proper office within thirty days after service of such notice, judgment will be entered in accordance therewith.

From Otto Kohler, Meadville, Pa,


author: Barnett, P. J.,

text:
    Perry Council No. 57, O. U. A. M., v. Robinson, Prothonotary.

      Corporations of first class — Application for charter — Filing of proposed charter before application — Delivery of charter to the corporation after recording — Act of April 29,1871.

    1. Under the Act of April 29,1874, P. L. 73, a charter of a corporation of the first class, which has been approved by the court and recorded in the ofifice of the recorder of deeds, should be delivered to the solicitor of the corporation, to be delivered by him to its proper officer.
    2. The proposed charter ought to be lodged in the prothonotary’s office subject to public inspection, during the whole time of advertisement of notice of the application. After that period, when the application has been approved and recorded, it should be delivered to its owner, the corporation.
    3. The statute does not make the charter a part of the record of the court.
    Rule to show cause, etc. C. P. Perry Co., Jan. T., 1921, No. 154.

      B. F. Umberger, for petitioner.

      Luke Baker and Walter W. Bice, for respondent.
    Aug. 3, 1921. —
   Barnett, P. J.,

There was presented to the court, under the provisions of the Act of April 29, 1874, P. L. 73, and its supplements, the certificate of incorporation of Perry Council No. 57, Order of United American Mechanics, a corporation of the first class. The charter was approved, with the order and decree required by the statute, and duly recorded. The fees due the prothonotary for filing and the recorder for recording the charter were paid. The corporation, by its solicitor, requested of the prothonotary delivery to it of the charter or articles of incorporation, which was refused. Upon petition of the corporation, setting forth the foregoing facts, a rule was granted on the prothonotary to show cause why the said articles should not be delivered to the petitioner. No answer has been filed to the rule, but the respondent was represented at the argument by counsel, who insists that the articles of incorporation must remain on file in the prothonotary’s office as an essential part of the record of the proceedings.

It has been the theory of the statutes relating to the organization of corporations in Pennsylvania, from the Act of April 6, 1791, 3 Sm. Laws, 20, down to and including the Act of 1874 and its supplements, that incorporation is the act of the incorporators, requiring only the approval of the agencies of the State’s sovereign power. The Act of July 18, 1863, P. L. (1864) 1102, authorizing the incorporation of “corporations for mechanical, manufacturing, mining and quarrying purposes,” did not even require the approval or the recording of the “articles of agreement” by which corporations under it were constituted. Section 1 of the Act of 1874 provides: “That corporations may be formed under the provisions of this act by the voluntary association of five or more persons.” Section 3 provides that “the charter (i. e., the ‘certificate’ of the ‘voluntary association’) of an intended corporation must be subscribed by five or more persons,” and “the said certificates of incorporation (i. e., ‘the charter’) of the first class shall be acknowledged by at least three of those who subscribe to them before the recorder of deeds to be their act and deed.” The only further requirements are that the charter be presented to a law judge of the proper county for his approval and that it be recorded. The charter is, therefore, in the beginning, the written contract of the incor-porators, and after it has passed the requirements of the statute and received the endorsement of judicial approval and the certificate of the recorder, it becomes .the law of the corporation and the foundation of its title to the corporate powers conferred by the act. Clearly it is the property first of the incorporators and finally of the corporation, and, after it has been recorded, should be delivered to its owner. “Like all other recorded instruments, such as deeds, mortgages, etc., after the recording of the charter and the certificate of the recorder of deeds being noted, . . . the engrossed charter would be delivered to the solicitor of the applicants for the charter, who would deliver the same to the qualified officer or officers of the then corporation:” In re Berezdiver Woliner Beneficial Ass’n, 27 Dist. R. 645.

The statute does not require that possession of the charter be surrendered to the prothonotary, nor even that it shall be temporarily filed in the pro-thonotary’s office. In St. John’s Beneficial Union, 20 Dist. R. 503, the court says: “The first (objection) is that the charter was not filed in the office of the prothonotary. The law does not require that it should have been so filed, and we would not be justified in refusing to grant the charter on that account.”

“The privilege of incorporation and the requirements to obtain it are wholly statutory. The courts are not entitled to grant or refuse the right except upon legal grounds, and the requirements fixed by law can neither be dispensed with nor added to:” Deutsch-Amerikanischer Volksfest-Verein, 200 Pa. 143, 145. See, also, Garrett-Williamson Lodge, 239 Pa. 474.

Neither the prothonotary nor his office is referred to in the statute. The ground upon which he is given merely temporary custody of the charter is supplied by judicial interpretation. While notice of the intention to apply for a charter is required to be published, “setting forth briefly the character and object of the corporation to be formed,” the Act of 1874, in its crudity, fails to provide that the articles of incorporation shall be kept at a convenient place for examination by those whose interest may have been aroused by the advertisement. Perhaps the earliest reported case in which this deficiency is noted is that of Charter of the Church of the Holy Communion, 8 W. N. C. 357, in which the court says: “We think notice means publicity, and that the proposed charter of an intended corporation ought to be lodged in the pro-thonotary’s office, subject to inspection by the public. Ordered, that the matter stand over for one week to allow exceptants an opportunity to examine the charter.” Later, in Charter for Saint Luke’s Methodist Episcopal Church, 17 Phila. 261, 264, it is said: “The charter should be filed in the office of the prothonotary and remain there for inspection during the whole time the publication is being made.” The same requirement was made in In re Regina Elina, 14 Dist. R. 476; St. John’s Beneficial Union, 20 Dist. R. 503, and other cases. The necessity for affording opportunity to inspect the charter during the period of advertisement, and the advantages of the prothonotary’s office as the place for such inspection, although obvious, seem to have been suggested by the Act of Oct. 13, 1840, § 13, P. L. 5, upon which the Act of 1874 was evidently modeled. This section, after requiring that the articles of association be presented to the Court of Common Pleas for examination and approval, provides that “said court shall direct said writing to be filed in the office of the prothonotary of said court;” but section 15 of the same act also directs that “after said articles of association shall be recorded as before directed, the same shall be duly certified to be recorded and delivered over to the applicants.”

The purpose of the practice of filing the charter in the office of the pro-thonotary is clear; and it is equally clear that, after that purpose has been served, the charter should be delivered to its owner, the corporation. There is no legal warrant for requiring the corporation to surrender its property for purposes of record. Until the legislature makes provision for them, record requirements may be met in the manner suggested in Union African M. E. Church, 1 Ches. Co. Reps. 459, or in Berezdiver Woliner Beneficial Ass’n, 27 Dist. R. 645.

Attention has been called by counsel for respondent to the case of Philadelphia Relief Ass’n, 7 W. N. C. 146, in which a motion for leave to withdraw an application for charter, which had been disapproved, was refused. It does not appear from the report of the ease that the words “application for charter” mean the charter itself, or that the charter was included in the ruling. If it was, no reason is given to justify its being thus permanently impounded, except that “this application is practically for leave to withdraw a record of the court.” The statute does not make the charter a part of the record of the court, nor does the practice under the statute, and there is not apparent any right in the court to deny the corporation possession of its own property after the purposes of its temporary custody by the prothonotary and recorder successively have been attained.

And now, Aug. 3, 1921, rule absolute, and the prothonotary is directed to deliver the charter, with the endorsed approval and order, and the recorder’s certificate, to the solicitor of the petitioning corporation, by him to be delivered to the proper officer or officers of the said corporation.

From Charles H. Smiley, New Bloomfield, Pa.


author: Hargest, P. J.,

text:
    Shultz v. Haffelfinger Wall Paper Company.

      Workmen’s compensation law — Injury during noon hour — Injury in fire on premises — Negligence of claimant — Evidence—Sufficiency.
    1. The fact that the deceased workman had left the premises of his employer, the defendant company, because of a fire which broke out therein, during his noon hour, and afterwards returned to get property belonging to him, does not take him out of the course of his employment. He was on the premises where he was required by the nature of his employment to be, and his death was due to the condition of the premises at the time. Evidence of such facts is sufficient to support a finding by the referee that the employee was required by the nature of his employment to be on the employer’s premises. The question of his negligence in returning to the burning premises is immaterial. Compensation is payable to the dependents of an employee killed under such circumstances.

      Workmen’s compensation law — Injuries received while not actually engaged in the business or affairs of the employer — Workmen’s Compensation Act of 1915, sect. SOI.

    2. To make an injury compensable, where the employee is not actually engaged in the business or affairs of his employers, three requirements must be met: (X) The injury must have occurred "upon the premises occupied by, or under the control of, the employer, or upon which the employer’s business or affairs are being carried on.” (2) The employee’s presence on the premises must have been demanded by the nature of the employment. (3) The injury must have been caused either (a) by the condition of the premises, or (6) by the operation of the employer’s business or affairs thereon.
    Appeal from decision of the Workmen’s Compensation Board. C. P. Dauphin Co., Jan. T., 1921, No. 171.

      Beidleman & Hull, for plaintiff; George Boss Hull, for defendant.
    Oct. 25, 1921.
   Hargest, P. J.,

This is an appeal taken to this court by agreement from an award made by the referee and affirmed by the Workmen’s Compensation Board.

Facts.

The facts found by the referee and affirmed by the board show that the claimant’s deceased husband, an employee of the defendant company, was accustomed to carry his lunch to work and eat it on the premises of the company. On the day of his death he worked until 12 o’clock noon, when the whistle blew for lunch. He then went to the boiler-room to eat his lunch, and about 12.20 a fire broke out in the company’s plant, which interrupted his lunch. He left the plant, and about five or ten minutes after the fire started was seen by Carbaugh, a fellow-employee, standing by a box-car near the plant, on the property of the Pennsylvania Railroad adjoining the plant. Shultz, the deceased, asked Carbaugh if he had his clothes out of the fire, to which Carbaugh replied, “No, my clothes are all in but what I have on,” and then Shultz said that he had a coat hanging in the cellar which had a check for $300 in it and $26 in money, and wanted to know if there was any possible way to get down and get his coat. Carbaugh told him there would be but one way to go down, and that would be by the stairway, but he would not like to risk it; that he had tried to get his clothes, but could not find them for smoke. Shultz was not seen alive afterwards, and four days later a body mutilated beyond identification was found.

The referee’s fourth finding of fact is, in part, as follows: “That at the time, although not being actually engaged in the furtherance of the business and affairs of the employer, he was injured upon the premises occupied and under the control of the defendant, and that the deceased’s presence thereon was required by the nature of his employment.”

Among the referee’s conclusions of law are the following:

“2. That the claimant’s deceased husband having died as the result of injuries sustained in an accident while in the course of his employment with the defendant company, and the claimant, his widow, being dependent upon him for support at the time of his death, she is entitled to recover compensation as provided in section 307 of the Workmen’s Compensation Act of 1915, and an additional sum of $100 for burial expenses.
“3. The fact that the deceased had left the premises of the defendant company when the fire first broke out, and afterwards returned to get some property belonging to him, does not take him out of the course of his employment with the defendant company, but, at the most, could only be regarded as a negligent act on his part in encouraging a dangerous situation and subjecting himself to the risk of losing his life. He was on the premises where he was required to be by the nature of his employment, and his death was due to the condition of the premises at the time.”

Discussion.

The appellant contends that there is no evidence to support the finding of fact that the deceased’s presence on the premises was required by the nature of his employment, apd the conclusion of law that the defendant is liable because the deceased died as the result of injuries sustained while in the course of his employment.

In Landy v. The Am. Inter. Ship Building Corp., 6 Dept. Reps. 1076, it is said with reference to section 301 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736: “It has been held that three requirements must be met to make the injury compensable in the case where the employee is not actually engaged in the business or affairs of his employer. First, the injury must have occurred ‘upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on.’ Second, the employee’s presence on the premises must have been demanded by the nature of the employment. Third, the injury must have been caused either (a) by the condition of the premises or (b) by the operation of the employer’s business or affairs thereon.” See, also, Getty v. William Henderson & Co., 2 Dept. Reps. 2450.

In this case there can be no doubt that the injury was caused by “the condition of the premises” which were occupied by the employer. The question is whether there is evidence to justify the finding that “the employee was required by the nature of his employment to be present on the premises.” Such a finding is one of fact and will not be reviewed: Gallagher v. Walton Manuf. Co., 264 Pa. 29; Ferri v. Lenni Quarry Co., 266 Pa. 264. This is the vital point in this ease, and the limit of the court’s inquiry is to ascertain (1) whether or not there is evidence to sustain the finding, and (2) if there is evidence to sustain the finding, whether the law has been properly applied thereto: Strohl v. East. Pennsylvania Rys. Co., 270 Pa. 132. If such evidence appears, the province of the court ends and the finding becomes one of fact not subject to review, even “though the referee and the board might well have decided the .point differently, and the court would possibly have done so:” Stahl v. Watson Coal Co., 268 Pa. 452.

Our inquiry in this case, therefore, is whether there is evidence to sustain the finding that the deceased’s presence on the premises was required by the nature of his employment. At the moment of the accident he was not actually engaged in the furtherance of his employer’s business, but it is well settled that his employment was not interrupted by eating his lunch.

In Granville v. Scranton Coal Co., 76 Pa. Superior Ct. 335, the deceased was injured during the lunch hour. He had been standing at a window and was found on the floor below, caught in the machinery. The principles in cases of this kind are so well pointed out by Judge Keller that we repeat them here:

“The learned judge of the court below was apparently of the opinion that an injury is not compensable under the Workmen’s Compensation Act unless it had some direct causal connection with the particular work the employee was engaged to do; in other words, unless the injury arose out of, or was due to, the workman’s individual employment; and as Granville’s work at the spiral picker and chutes did not require his presence at or near the pony rolls, that his injury was not compensable. The Supreme Court and this court have pointed out a number of times that our Workmen’s Compensation Act differs from those of most other states, in that the injury to be compensable does not have to arise out of the employment; that it need only occur in the course of it: Dzikowska v. Superior Steel Co., 259 Pa. 578; Lane v. Horn & Hardart Baking Co., 261 Pa. 329; Hale v. Savage Fire Brick Co., 75 Pa. Superior Ct. 454; that the course of employment is not broken by short intervals of time taken for the noonday meal, where the employee remains on the employer’s premises (unless he is doing something wholly foreign to his employment), and that in such circumstances he is still engaged in the furtherance of the business or affairs of the employer: Dzikowska v. Superior Steel Co., 259 Pa. 578; Hale v. Savage Fire Brick Co., 75 Pa. Superior Ct. 454. ‘Acts of ministration by a servant to himself, . . . performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen’s Compensation Act, though they are only indirectly conducive to the purpose of the employment. Consequently, no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshments, food or fresh air, or to rest in the shade:’ Blouss v. D., L. & W. R. R. Co., 73 Pa. Superior Ct. 95.
“Thus, while Granville was on his employer’s premises during the half hour period allowed for refreshment and rest, he was still in the course of his employment, and his employer would be liable under the Compensation Act for an accident happening to him during that period, unless he was doing something wholly foreign to his employment, and merely going from one floor to another of the building or breaker in which he worked would not be doing something wholly foreign to his employment.
“If the accident happened during the course of his employment, compensation is not withheld because the employee does something besides or apart from the thing which he was employed to do, provided it is not wholly foreign to his employment. ... If the accident happens during the course of his employment — and that includes during the lunch or rest period spent on the employer’s premises — compensation must be paid, unless it appears from the evidence that he was at the time of injury doing something wholly foreign to his employment. . . .
“The Workmen’s Compensation Act is not a mere variant from master and servant negligence law; negligence and contributory negligence have nothing to do with it. ‘Its purpose is to relieve to some extent the employee who has been injured in the course of his employment from the economic consequences of his injury and make them a part of the cost of operation of the business, to be paid ultimately by the consuming public, and it should be so construed as to carry this purpose into effect:’ Hale v. Savage Fire Brick Co., 75 Pa. Superior Ct. 454.”

In Flucker v. Carnegie Steel Co., 263 Pa. 113, the deceased had left the property of his employer and gone to his home and stayed there until some time between 10 and 11 o’clock, when he started back to his place of work. After leaving home to return to work, he was not seen again until his dead body was found in the ravine on the premises of the employer. The referee found that “the deceased met his death from injuries received by accident occurring in the course of his employment.” The Workmen’s Compensation Board sustained the referee, but the Common Pleas of Allegheny County reversed, deciding that the record presented no sufficient support for the referee’s conclusion that the deceased met death while in the course of his employment. Upon appeal, the Supreme Court reversed the Common Pleas and sustained the order allowing compensation.

In Blouss v. D., L. & W. R. R. Co., 73 Pa. Superior Ct. 95, the claimant was injured while riding upon the defendant company’s engine in going for his dinner-pail. The Workmen’s Compensation Board reversed the finding of the referee and denied compensation. Upon appeal, the Common Pleas sustained the Workmen’s Compensation Board, but the Superior Court reversed, saying (page 98) : “Certainly a man going after his dinner-pail at the noon hour, preparatory to eating his dinner, is as much in the course of his employment as a man going to his home at the completion of an errand: Haddock v. Steel Co., 263 Pa. 120; Messer v. Manufacturers’ L. & H. Co., 263 Pa. 5; or one going after tools to a part of the mine he had been forbidden to enter: Gurski v. Coal Co., 262 Pa. 1. The fact that he chose for his own convenience to ride instead of walk, in going after his dinner, would not deprive him of compensation if he was injured on the way.”

In Haller v. City of Lansing (Mich.), 162 N. W. Repr. 335, a workman was grading a place for a stone crusher, and at the noon hour, for the purpose of eating his meal protected from the cold, he went into a tool-house sixty or seventy feet from the place being graded, and an explosion of gasoline occurred when he lit his pipe. It was held that he was within the course of his employment.

From the foregoing authorities it is settled that an employee is in the course of his employment while resting during the lunch period. Does the fact that Shultz left the premises of the employer because of the fire require us to say that there is no evidence from which the referee could find that the accident happened during the course of the employment? We do not think his temporarily leaving the property of the employer had that effect. If he had remained on the property of the employer, even though in a different part of the building, and the fire had broken out with the same fatal result to him, under the authorities above cited the accident would unquestionably have been a compensable one. When the fire broke out, instead of going to another part of the building, he left the premises and went on the property of the Pennsylvania Railroad close by. It is argued that this case is differentiated from the cases cited, because there was not a temporary suspension during the lunch period, but an enforced permanent suspension of the work, caused by the fire,' of which the deceased had full knowledge. With this contention we cannot agree. There is nothing in the evidence to show the extent of the fire at the time the deceased went back into the building. It was only five or ten minutes after the fire started, and the only direct evidence as to the extent of the fire is that of the witness Carbaugh, who says that Shultz asked him whether there would be any possible way for him to go down into the cellar for his coat, and that he replied that there “would be just one way to do it, and that is to go by that stairway,” but that Carbaugh said he would not like to risk it, as he had tried to get his property, but could not find it for smoke. This evidence does not show that at that time the fire had so progressed as to show that it was beyond control and that the employment had permanently been suspended. It is also argued that Shultz went back in defiance of instructions, but the evidence does not sustain this contention. The witness Carbaugh says, “the foreman, Mr. Miller, gave me orders to try to see whether everybody was out of the fire,” and at another place he says: “Then you know the foreman gave me orders to try to see whether these parties were out; so I was on the look for them fellows, so I did not — I moved on, you know.” There is nothing in the evidence to show that the instructions which the foreman gave him were communicated to Shultz, and, therefore, no inference could be drawn that Shultz was forbidden by his employer, or any one in authority over him, to return to the premises. We, therefore, think that there is no evidence to require a finding that the employment was permanently interrupted by the fire at the time Shultz returned for his coat, and, on the other hand, that there is evidence to justify the finding that his presence on the premises was required by the nature of his employment, which had not been interrupted at the time of his return. Shultz was, perhaps, guilty of negligence, but the question of negligence has no place in our determination: Granville v. Scranton Coal Co., 76 Pa. Superior Ct. 335; Hale v. Savage Fire Brick Co., 75 Pa. Superior Ct. 454; Dzikowska v. Superior Steel Co., 259 Pa. 578.

We do not think this case comes within the rule laid down in Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, where it is held that “no compensation will be allowed where the deceased left his regular working place and went some distance away, where no duty or business called him, and then met his death;” nor within the case of Strohl v. East. Pennsylvania Rys. Co., 270 Pa. 132, where the question was whether the claimant was, at the time of his injury, engaged in the business of the defendant or another company by whom he was also employed; nor within the case of Burrows v. Susquehanna Coal Co., 4 Dept. Reps. 623, where the claimant during the noon hour, in company with other breaker-boys of his own age, were joy-riding on a truck belonging to the defendant.

For the reasons heretofore given, we are of opinion that there was sufficient evidence to justify the findings of the referee, and that the law has been properly applied to those findings.

The award of the referee, affirmed by the Workmen’s Compensation Board, is hereby affirmed, at the cost of the appellant.

Prom William Jenkins Wilcox, Harrisburg, Pa.


author: Stone, J.,

text:
    MacEnulty v. Carnegie Steel Company.

      Practice, C. P. — Letters rogatory — Fishing expedition — Province of court— Act of April 8, 1888.

    1. The request by letters rogatory issued by a court of another state for appointment of a commissioner to take testimony in an action in that state between two corporations having their principal offices and places of business in Allegheny County, Pennsylvania, for damages for breach of contract, will not be honored where it appears that its purpose, as revealed by the interrogatories attached to the letters, is largely that of a "fishing expedition,” and particularly where the letters show that the testimony and records sought are to be used only “as plaintiff may elect.”
    2. The Act of April 8, 1833, P. L. 305, 308, does not confer jurisdiction upon our courts in cases of letters rogatory; it merely prescribes the manner of their execution when such letters are received from another state.
    Letters rogatory. C. P. Allegheny Co., Jan. T., 1922, No. 941.

      Dalzell, Fisher & Dalzell, for plaintiff.

      Packer & Sherrard, for defendant.
    Oct. 29, 1921.
   Stone, J.,

This matter comes before us on motion of counsel for the plaintiff, presenting to us certain letters rogatory issued by the Supreme Court of the City and County of New York, directed to this court. By the motion and such letters we are requested to cause certain individuals, officers or employees of the defendant, residing in this jurisdiction, to appear before us or some competent person by us appointed, at a time and place by us to be fixed, “there to answer on their oaths and affirmations to the several interrogatories hereunto annexed, and that you will further require the defendant, by said officers or employees, to produce, under the process of your court, the several documents and records referred to in said interrogatories, or copies thereof, to be offered in evidence and annexed to the depositions of the witnesses as plaintiff may elect. ...”

To the letters rogatory and the motion of counsel as presented to us, objections have been filed not only by the defendant, but by the individuals whose testimony the plaintiff desires to obtain. The objections as filed are under oath, and contain averments of fact in addition to reasons assigned in support of the objections. No. reply of any kind has been made by the plaintiff. No reason assigned in support of the objection attacks the letters rogatory as to form or substance. In view of such failure, counsel for plaintiff argues with considerable force that there is practically nothing left for us to do except appoint a commissioner to take the testimony desired.

Our attention is called to two cases of our own court, viz., In re Robb’s Petition, 1 Dist. R. 367; Doubt v. P. & L. E. R. R. Co., 6 Dist. R. 238. No cases have been cited by counsel on either side, and our own investigation has discovered none, which consider in a better and clearer way than the cases cited our duties and privileges in the matter of letters rogatory.

“Our statute” of April 8, 1833, P. L. 308, says Judge White in the Robb case, “does not confer jurisdiction upon our courts in cases of letters roga-tory; it merely prescribes the manner of their execution when such letters are received from another state.”

Letters rogatory are not the creation of a statute. They existed before any statute on the subject. They arose from the principle of comity between friendly nations or independent states. As one nation could not compel the attendance of witnesses from another nation, justice would often fail unless there could be some mode of getting their testimony. This was accomplished by a letter from the court in which the suit was pending to the court in the other nation, asking for assistance in obtaining the testimony of witnesses residing within its jurisdiction, and a promise to do the like favor if that court should need the testimony of witnesses within its jurisdiction.

Judge Slagle, in the Doubt case, in substance, gives the same consideration to letters rogatory. In addition, he says: “This indicated very clearly what is the usual and ordinary form of proceeding, and when such a request is presented, it would be our duty, and should be our pleasure, to grant the request and furnish the desired aid, but we are not bound to respond to an unusual and extraordinary request.”

In other words, the granting of such a request or the refusal so to do is entirely discretionary, but in a proper case should always be granted.

While the interrogatories attached to the letters rogatory may or may not have the approval of the Supreme Court of the City and County of New York, it alone can determine the competency and relevancy thereof as evidence in the trial of the cause. We are, nevertheless, reminded that the witnesses whose testimony is sought are entitled to the protection of this court. They should not be required to answer any interrogatory which might do an injustice to them or the defendant, and this for the reason the very foundation of the letters rogatory as therein contained is to do justice between the parties.

Judge Slagle, in the Doubt case, in commenting on the action of the plaintiff in going to Ohio to bring his suit, instead of bringing it in this jurisdiction, where he lived and where the defendant had its main offices, records, etc., and where the cause of action arose, said: “It is conceded that the plaintiff had the right to bring his suit in Ohio, but it is claimed that, under the circumstances, our courts are not bound and ought not to grant assistance to a person who has gone out of our jurisdiction for some purpose not disclosed; that the exercise of comity does not depend upon the courts alone, but is to be determined by the status of the parties as well. This seems to have some force.”

An examination of the objections filed by the defendant and the witnesses whose testimony is sought, a copy of the complaint and amended answer as filed in New York Court, and the interrogatories, convinces us the status between the parties is as follows:

The plaintiff is the vice-president of the Pressed Steel Car Company, which company (as does the defendant) has its principal offices, mills, works, records and papers of various kinds within the jurisdiction of this court. Between Oct. 9th and Nov. 10, 1916, the companies named entered into five separate and distinct contracts, all of which called for the manufacture by the defendant and shipment to the plaintiff at its main works, located in this jurisdiction, of several thousand tons of steel products. It is alleged the defendant did not ship all of the material it contracted to deliver to the plaintiff, and the defendant “delivered to other manufacturers the steel and car material which it manufactured from time to time, and which might have been delivered to said Pressed Steel Car Company. . . .” The car company made an assignment of the five contracts in question to its vice-president, a resident of New York, and he instituted the proceeding hereinbefore referred to in the Supreme Court of the City and County of New York. He alleges discrimination, preferential deliveries.

No reason appears anywhere in the pleadings for the aforesaid assignment; much less is there any reason assigned for entering the action in a jurisdiction entirely foreign to the place where the two corporations named have their chief works, offices, records, officers and employees.

The plaintiff herein, with respect to his claim of discrimination, has in the pleadings filed in New York averred that: “Such preferential treatment can only be disclosed through an examination of the records of the Carnegie Steel Company covering these two years, in connection with the oral examination of the officers and employees of the Carnegie Steel Company who are conversant with the facts.”

Following such an averment, the application for letters rogatory was made and in due time interrogatories filed.

Among the questions proposed to be submitted to Mr. J. P. Kessler, Jr., there are seventeen requiring him to produce office, mill and shop records or copies thereof; three questions to be asked Mr. William C. McCausland require him to produce contracts and other important documents or copies thereof; six questions to be asked Mr. Homer D. Williams require him to produce many important documents and private papers or copies thereof; all of which is “to be offered in evidence, ... as plaintiff may elect.”

While it is true an action for damages for breach of a contract is a transitory one, it does not follow it is also migratory.

If there ever was a roving commission issued under the guise of regular application of legal principles, this case presents it. The very thought as expressed in plaintiff’s affidavit, supra, followed by the demand, as contained in the interrogatories, to attach the original records of the defendant or copies thereof, would be very voluminous, and also that, after the trouble and expense of obtaining the vast amount of data, it, or rather only so much of it, is actually to be offered in evidence to do justice between the parties “as plaintiff may elect.” How unfair, therefore, it would be for us to put our stamp of approval on what has gone before by appointing a commissioner. This fishing expedition, inaugurated by the plaintiff, is strenuously objected to by the defendant and the witnesses in question, and, to our mind, properly so.

“As to the idea that this was a mere fishing suit, and not brought for the object which it purports, and merely intended to pry into the doings of the court martial, the judge observed that if it could have been proved to his satisfaction that such was the true character of the proceedings, he would at once refuse to act in the case: . . .” In re Mackenzie, 2 Pa. L. J. Reps. 343.

We might cite other matters covered by the pleadings, but we deem it not necessary to do so. We have referred to the main points in the case, so far as this application is concerned, and, when tested by the rules as hereinbefore contained, the conclusion is irresistible that the motion of counsel for the plaintiff “for the appointment of a commissioner to take the testimony designated in said letters rogatory” must be refused.

From Edwin L. Mattern, Pittsburgh, Pa.


author: Hassler, J.,

text:
    City of Lancaster v. American Bonding Company.

      Suretyship — Suit on contractor’s bond — Statement—Sufficiency of — Written or oral contract — Unfinished work — Items of amount due — Variation of contract — Practice Act, 1915, sect. 9.

    1. In an action on a contractor’s bond to recover the difference between the contract price and the amount paid another contractor to complete the work, it is not necessary that the statement should set forth whether the contract with the second contractor was written or oral, or what work was left undone by the first contractor and completed by the second contractor, or, in detail, how the amount claimed was arrived at. All that need be alleged is the amount the plaintiff was required to pay above the original contract price.
    2. Such statement is not defective for alleging a variation in the contract where it alleges that the contract was made for the completion of the work “without any material variation with” the original contract, but at an increased price. An immaterial change in the contract would not relieve the surety.
    Practice Act of May 14, 1915, § 9, P. L. 483, considered.
    Question of law raised by affidavit. C. P. Lancaster Co., June T., 1914, No. 45.

      Oliver S. Schaeffer and Bernard J. Myers, for plaintiff.

      John E. Malone, for defendant.
    July 2, 1921.
   Hassler, J.,

An affidavit of defence bas been filed in tbis case raising questions of law. The facts set forth in plaintiff’s statement show that the defendant was surety on a bond given to the plaintiff by the Lehigh Engineering and Construction Company, conditioned that the said Lehigh Company would erect a dam, intake, bridge pier, &c., at the pumping station in accordance with the terms and specifications attached to that contract. It is alleged that the said company failed to do its work, and the City of Lancaster was compelled to employ one G. W. Rockwell, of Sunbury, Pa., to build it, and was required to pay him $3259.97 more than the Lehigh Company had contracted to do the work for. This suit was brought to recover that amount from the defendant as surety on said bond for the said Lehigh Company.

It is objected that the statement is not sufficient, because it does not set forth whether the contract made with G. W. Rockwell on Aug. 25, 1911, was a verbal or written contract. We do not think there is any merit in this contention. Section 9 of the Act of May 14,1915, P. L. 483, requires that it shall be stated whether the contract upon which suit is brought is oral or in writing. The contract with Rockwell is not the one upon which suit is brought. It can only be used as evidence of what amount, if any, the defendant is liable for on the contract between the plaintiff and the Lehigh Engineering Company, upon which the defendant company was surety. The statement alleges that that contract is in writing, which meets the requirements of the act of assembly.

The second objection to the statement is that it alleges that the Rockwell contract varied from the contract that the plaintiff entered into with the Lehigh Engineering Company, &c., and that this legally discharged the defendant from liability. This is not correct. The plaintiff’s statement alleges that the contract was made with Rockwell for the completion of the work “without any material variation with the original contract with the said Lehigh Engineering Contracting Company, and at a price in excess of said original contract.” An immaterial change in the contract would not relieve the surety: Philadelphia v. Ray et al., 266 Pa. 345. But there is no allegation in the statement that there was any material change in the contract with Rockwell.

The third objection is that the statement fails to set forth what work was left undone. We do not think that it was necessary to set this forth in the statement. Whatever work was left undone by the original contract, it was proper for the plaintiff to employ some one else to do, and if it cost more, the defendant, as surety on the original contractor’s bond, would be liable for the payment of such excess.

The fourth objection is that the statement fails to show how the damage of $3259.97 sustained by the plaintiff is arrived at. The statement does allege that it was the amount which the plaintiff was required to pay to Rockwell because of the defendant’s principal’s failure to perform his contract. This is all that is required to be alleged in the statement.

We are satisfied that there is no merit in the questions raised in the present affidavit of defence, and, therefore, refuse to enter judgment for the defendant, but direct the defendant to file a new affidavit of defence within fifteen days from the date of the filing of this opinion.

Prom George Ross Eshleman, Lancaster, Pa.


author: Copeland, J.,

text:
    Ligonier Township Road.

      Road law — Exceptions to report of viewers — Office of.

    Where viewers appointed by the Court of Quarter Sessions have reported in favor of laying out a public road, and their report in the case is full and complete, no error of law appearing that would warrant the court in refusing to confirm the report, exceptions which go to questions of fact that were for the viewers or to matters of damages that can be remedied by an appeal will be dismissed.
    Exceptions to the report of viewers. Q. S. Westmoreland Co., May Sess., 1920, No. 8.

      John S. Lightcap, for petitioners; John W. McFadyen, for exceptants.
    April 18, 1921.
   Copeland, J.,

On June 26, 1920, a petition by numerous inhabitants of Ligonier Township, Westmoreland County, Pennsylvania, was presented in open court, setting forth that they labored under great inconvenience for want of a public road in Ligonier Township, to begin at a point on the road leading from Ligonier Borough to Beulah Church, about 2600 feet from the intersection of this road with the road leading from Fairview School House to the Stahlstown Road, near the dwelling-house of the heirs of Hartman McDowell, and ending at a point on the road leading from the Stahlstown and Fairview School House Road to the road leading from Jefferson School House to Mechanicsburg, about 385 feet from the intersection of said road with the Stahlstown and Fairview School House Road, and praying that the court appoint persons to view and lay out the same according to law.

When this petition was presented, the court, after due consideration, appointed W. H. Matthews, Warner Utts and W. A. Kunkle, who were members of the Board of Viewers of Westmoreland County, to view the road, after due notice was given according to law and the rules of court.

The viewers, after complying with the law and the rules of court relative to notice, met on the premises on July 15, 1920, at 10 o’clock A. M., and, after being severally sworn according to law, viewed the ground proposed for the road and heard all parties interested and their witnesses, and, pursuant to notice, met in the court-house in the Borough of Greensburg, Pennsylvania, on Monday, July 19, 1920, at 9 o’clock A. M., and heard testimony of all parties interested and their witnesses. After the hearing, the viewers concluded that the road was necessary and laid the same out according to a survey attached to the report, and filed the report on Sept. 4, 1920, in open court.

On Nov. 3, 1920, exceptions to the report of viewers were filed. The exceptions state in substance: First, that the road is not laid out on the best ground and the shortest distance possible and in such manner as to do the least injury to private property; second, that the road passes through marshy ground; third, that the road will necessitate the expenditure of a large sum of money, both in the cost of construction and maintenance; fourth, that the Township of Ligonier is unable, financially, to construct the road; fifth, that there is no occasion for the proposed road; sixth, that the damages allowed exceptants are inadequate; and, seventh, that the board of viewers failed to inspect properly the ground over which they laid out the proposed road.

The report of the viewers shows that they viewed the premises over which the proposed road was to be laid out; that the proposed road is on the best ground; that it traverses the shortest distance possible; that it is laid out in such a manner as to do the least injury to private property, and, accordingly, so far as practicable, is agreeable to. the prayer of the petitioners.

It has been held in proceedings for laying out roads that matters of fact are solely for the viewers, and that the court is without authority to consider testimony: South Shenango Township Road, 25 Pa. C. C. Reps. 587.

The questions of the viewers, having regard to the shortest distance and the best ground for the road, or to locate the same so as to do the least injury to private property, or for the accommodation of the people of the neighborhood or the traveling public, are questions for the viewers, and the exceptants’ remedy is for a review: Drumore Township Road, 5 Lanc. Law Rev. 265.

In East Franklin Twp. Road, 8 Pa. C. C. Reps. 590, the report of viewers laying out a road was excepted to on the ground that the road was not necessary and that the exceptants’ property would be damaged to the extent of $500, although only $100 damages had been allowed. There it was held that it was not the province of the court to investigate the question of fact raised by the exceptions, and that the report was entitled to a degree of respect analogous to that given to the verdict of a jury or the finding of an auditor, and should not be disregarded save for error of law apparent on its face or for misconduct on the part of the viewers.

If the parties are dissatisfied with the damages allowed, as we understand it, under the Act of May 16, 1891, § 1, P. L. 65, they may appeal from the decision of the board of viewers and have the amount of damages determined by a jury according to the course of the common law.

The report of the viewers in this case is full and complete, and we can find no error of law that would warrant us in refusing to confirm the report. The exceptions go to questions of fact that were for the viewers or to matters of damages that can be remedied by an appeal, and, there being nothing in them for the court, the exceptions are dismissed and the report of the viewers is confirmed absolutely.

And now, to wit, April 18, 1921, after argument and after due consideration, it is ordered, adjudged and decreed that the exceptions to the report of viewers filed on Sept. 4, 1920, in the Court of Quarter Sessions of Westmore-land County, Pennsylvania, be and the same hereby are dismissed and the report of the viewers is confirmed absolutely.

From William S. Rial, Greensburg, Pa.