author: Gordon, Jr., J.,

text:
    Cohen v. Philadelphia Rural Transit Company et al.

      W. C. Brown, for plaintiff; David I. Scanlon, for defendant.

      Israel K. Levy, Assistant City Solicitor, for additional defendant, City of Philadelphia.
    May 15, 1930.
   Gordon, Jr., J.,

— This action in trespass is before us upon an affidavit of defense in the nature of a demurrer to a writ of scire facias under the Act of April 10, 1929, P. L. 479, issued by the defendant, the Philadelphia Rural Transit Company, to bring the City of Philadelphia upon the record as an additional defendant.

The plaintiff, who is a fireman of the City of Philadelphia, brought the action against the Philadelphia Rural Transit Company to recover damages for injuries suffered by him in a collision between a motor vehicle of the defendant and a motor fire-engine on which the plaintiff was riding, and which was being operated by another employee of the Fire Department of the City. After suit was brought, the defendant brought in the City by scire facias, averring in the writ that “The City of Philadelphia is liable over to the Philadelphia Rural Transit Company for the cause of action declared on, because the injury for which plaintiff seeks to recover was caused by the negligent operation of motor vehicle of said City of Philadelphia in colliding with motor vehicle of the defendant.” To this averment of the writ the additional defendant filed the affidavit of defense raising questions of law now before us.

The first question raised by the affidavit is one of pleading. The writ avers only that the accident was due to the negligence of the City of Philadelphia, the additional defendant. How, then, can there be a right of action over against it by the Philadelphia Rural Transit Company, the original defendant? The case of Vinnacombe v. Philadelphia et al., 297 Pa. 564, reaffirmed by the case of First National Bank of Pittsburgh v. Baird (not yet reported), decides that a writ! of scire facias under the Act of 1929 is in the nature of an action in assumpsit, and, like a statement of claim to which it is declared to be analogous, must disclose the facts upon which the action over is founded. This being so, any right of action over, which one joint tortfeasor may have against another, must depend upon the existence of a right of contribution between them. In such a case, therefore, the writ of scire facias, which must be self-sustaining and must disclose the essentials of a cause of action, should set forth, first, that both defendants were negligent; and, second, that their joint negligence occurred under such circumstances as to give rise to eontributionship between them under the principles laid down in the case of Goldman v. Mitchell-Fletcher Co., 292 Pa. 354. If either of these averments is lacking, the writ fails to show a cause of action by the one against the other. In the writ before us both are wanting. There is neither an averment of a joint tort nor of the circumstances which would support contribution between joint wrongdoers. On the contrary, it would appear from the averment of the writ that the City’s negligence alone caused the accident; and if that be so, no verdict could be rendered against the transit company, and no action over could lie in its favor against the City, for it is only in the event of recovery by the plaintiff against an original defendant that an action over lies against an additional defendant: Vinnacombe v. Philadelphia et al., supra. Upon the pleadings, therefore, the affidavit of defense filed by the City is sufficient.

As the question just discussed involves merely a defect of pleading, which would be correctiblé by an amendment setting forth a joint tort under circumstances where a right of contribution between the defendants existed, we would be inclined to give the original defendant an opportunity to amend its writ, if it could successfully do so. In view of all the conceded facts in the case, however, it is apparent that there could be no right of contribution between these defendants, even if the negligence of both contributed to the accident, and no effective amendment could, therefore, be made. This brings us to the question of substantive law raised by the affidavit — can there be contribution between joint tortfeasors when one of them is liable to the plaintiff only under the Workmen’s Compensation Law? The plaintiff was an employee of the City at the time of the accident, and was entitled only to compensation from the City under the Workmen’s Compensation Law, which abolishes an employer’s liability for negligence and substitutes for it a form of industrial insurance in no way dependent upon the cause of an injury. The liability of the two defendants to the plaintiff being, therefore, fundamentally different in nature, the question arises whether a right to contribution exists between them merely because they were joint tortfeasors.

To determine this question, it is necessary to consider whether contribution-ship rests upon joint tortfeasorship or upon joint liability. If the former, the duty to contribute would exist, regardless of whether they were both liable tó the person injured, and, if the latter, the duty would not arise where one is liable and the other not; as, for instance, in the case of the joint negligence of a charity and an individual. While it is true that the equitable doctrine of contributionship is designed for the mutual relief of persons whose concurrent negligence has caused injury to another, it rests primarily upon joint liability rather than upon joint tortfeasorship. “The doctrine of contribution rests on the principle that, when the parties stand in aiquali jure, the law requires equality, which is equity, and one of them shall not be obliged to bear a common burden in ease of the rest. It is founded on principles of equity and natural justice and does not arise from contract. In other words, the doctrine of contribution is not founded on contract but comes from the application of principles of equity to the condition in which the parties are found in consequence of some of them, as between themselves, having done more than their share in performing a common obligation:” 13 Corpus Juris, 821. If liability to contribute rested solely upon joint tortfeasorship, one could be indirectely forced into a liability for his acts which the law did not create or recognize. Although contribution among joint wrongdoers, therefore, rests upon the existence of a joint liability, and not upon the fact of joint negligence, there need not be recovery by the injured party against both joint tortfeasors before one can enforce contribution from the other, for the right to relief from the entire burden of liability cannot rest upon the election of a plaintiff to sue one rather than both. The right exists, as an equitably implied contract, in the one against whom recovery is had, provided the other also would be legally liable for his tort.

Joint liability being the basis of contributionship, it is evident that the City’s liability to the plaintiff here under the Workmen’s Compensation Law is' so different in character from that of the Philadelphia Rural Transit Company for its tort that no right of contribution can exist between them. The transit company contends, however, that since the Workmen’s Compensation Law does not absolutely abolish an employer’s liability for negligence to his employee, but makes its abolition depend upon an express or implied contract between them to take advantage of its provisions, the plaintiff and the City cannot by such a contract, to which the transit company was not a party, destroy the right to contribution which the latter would have but for the contract between the plaintiff and the City. In other words, the original defendant's contention is that others should not be permitted to contract away its rights without its consent.

Forceful and persuasive as this argument superficially appears, it loses sight of the fact that the employer’s liability for negligence to his employee, where compensation is rejected, is of a different grade from the liability of an ordinary tortfeasor, since many of the ordinary defenses in such a case are abolished by the act, and the determination of their respective liabilities rests upon different principles. The liability of the two defendants, therefore, would be several rather than, joint. This would defeat the right of contribution, between them, for, though the Act of 1929, by its terms, permits the bringing in of additional defendants who may be “jointly or severally liable with” the original defendant, the decision of the Supreme Court in the Vinnacombe case, cited above, that the original suit and the soi. fa. proceeding are independent of each other, and that a plaintiff can never recover against an additional defendant, logically constrains us to hold that in actions for negligence only those joint tortfeasors can be brought in under the act between whom a right of contribution exists.

For the foregoing reasons, the affidavit of defense raising questions of law in the proceeding between the two defendants is adjudged sufficient, and judgment is now entered in favor of the additional defendant, the City of Philadelphia.


source: Caselaw Access Project

author: HAUSE, P. J.,

license: Public Domain

text:
    West Goshen Township School District v. Hughes.

      Holding & Harvey, for plaintiff; Harold B. McCowan, for defendant.
    Dec. 16, 1929.
   HAUSE, P. J.,

— This action of assumpsit is brought by the plaintiff school district to recover the purchase price of a piece of land sold at public sale and purchased by defendant.

Findings of fact.

The plaintiff is a body corporate — a school district of the fourth class. It occupies a lot of ground containing three-fourths of an acre made up of two tracts — one containing a half-acre and the other one-fourth of an acre. On this lot was erected and used, for many years and until the present time, a school-house.

The half-acre tract — the one about which the question here arises — was conveyed to August John and others, School Directors of West Goshen Township and “their successors,” by Mary Guest on April 12, 1840, for a consideration of $50. When this deed was originally drawn and before its execution it contained the words — immediately following the names and designation of the directors — “and their successors and assigns.” Before its execution and delivery the words “and assigns” were stricken out.

In the habendum clause the same words were then stricken out and this clause now reads as follows: “To have and to hold the said piece of land and appurtenances to the said August John et al., directors aforesaid, and their successors forever for the establishment and support of schools in said district and for no other purpose.”

On May 12, 1928, the school district sold the entire tract at public sale to the defendant for $4350, and the defendant agreed in writing that he had purchased it and covenanted to pay the purchase money. He has paid $870, and this action is for the recovery of the balance ($3480), with interest from June 1, 1928, the date upon which a deed in fee was to be executed and delivered. Due to an old unsatisfied mortgage, which the district had discharged by a decree of court, a deed was not tendered to defendant until five weeks later. The time of delivery was not made of the essence of the contract and the postponement was agreed to by both sides.

The district, through its school directors, made the sale because it no longer needed the tract as a site for school purposes and agreed, in the written contract of sale, that the title should be a title “ in fee simple and marketable.”

The defendant's position is that the district did not have a fee simple title to the tract referred to in view of the language of the deed, that is: that the conveyance was to the original board of directors and “their successors,” and that its use was limited to the “establishment and support of schools” and “for no other purpose,” and he asks that a judgment be entered in his favor, as stated in his counter-claim, for $870.

The deed referred to contains no clause of forfeiture or reversion in the event that the district should cease to use the tract for school purposes.

The defendant further denies liability because certain persons claiming to be heirs of Mary Guest, grantor, now assert that the deed, from her to the school district, did not convey an absolute fee and that, because of such claim, the title is not “marketable.”

Discussion.

With the decision of the Supreme Court in Sapper et al. v. Mathers, 286 Pa. 364, before us, by which we must be guided, there is no possible doubt but that the conveyance in question vested an, absolute fee in the school district. There, a conveyance was made to an organization for burial purposes, “and for no other purpose whatsoever,” with no clause of forfeiture or reversion. The use of the tract was discontinued as a burial ground and the bodies were removed and the tract was sold by the organization. The heirs of the grantor then sought to recover in ejectment, and the Supreme Court said: “The words limiting the use of the property as a burying ground did not create a condition or reduce the title to a base fee.” Quoting from a prior opinion in Drace v. Klinedinst, 276 Pa. 266, they said: “Where a clause in a deed to a city is conditioned that a lot should be used as a burying ground, and for no other purpose whatsoever, without any record of any intention, either express or implied, that the land should under any circumstances return to them or their representatives in case it is not so used, a fee is conveyed and cannot be disturbed when there is a use made different from that nominated in the deed.”

The fact that the word “assigns” was stricken out does not reduce the estate granted. A conveyance to a body corporate vests a fee without the words “successors and assigns” or either of them: Wilkes-Barre v. Wyoming Society, 134 Pa. 616.

In the light of these cases, may the defendant refuse to pay the balance of the purchase money because an heir or heirs of Mary Guest, original grantor, claim that the conveyance referred to did not vest a fee in the school district?

A recovery in an action for purchase money is, in legal effect, a decree for specific performance and, before entering such decree, the chancellor must be satisfied that the vendor can convey a marketable title and a “marketable title” is one “as to which there is no reasonable doubt either as to matter of law or fact:” Herzberg v. Irwin, 92 Pa. 48; Holmes v. Woods, 168 Pa. 530; Herman v. Somers, 158 Pa. 424. Such decree “will never be made in favor of a vendor unless he is able to offer a title marketable beyond a reasonable doubt:” Mitchell v. Steinmetz, 97 Pa. 251.

The question then is, does the language of the deed suggest a “reasonable doubt” as to the title of the district? A chancellor cannot refuse a decree of specific performance, nor can a recovery in assumpsit be denied, merely because some one asserts that the plaintiff is not vested with a fee simple title.

The conveyance by Mary Guest to the school district vested a fee beyond a shadow of doubt, in view of¡ the decisions cited, and the purchaser must pay the balance of the purchase money. The title expressed in the deed cannot expose him to litigation, because there is no legal ground upon which an adverse claim can he based.

In Chew v. Chew, 266 Pa. 526, an action for the purchase money of land, a defense similar to that here involved was presented and the court said: “The defendant contends that, irrespective of whether the plaintiffs are vested with an absolute estate in fee [under the language of a will], yet if the defendant is liable to be subjected to litigation over the question, the title cannot be said to be good and marketable. This contention begs the question. If the result of this suit should be a decision that plaintiffs are vested with an unqualified fee, then it necessarily follows that the title tendered was a good and marketable one.”

Conclusion.

We conclude, therefore, that the plaintiff’s title is a title in fee simple and is marketable and that defendant is liable on his contract of purchase to pay the remainder of the purchase money, with interest from July 1, 1928.

The prothonotary is directed to enter judgment in favor of the School District of the Township of West Goshen and against Edward H. Hughes in the sum of $3480, with interest from July 1, 1928, unless exceptions be filed hereto within thirty days after notice to counsel for the respective parties, which notice shall be given to them by the prothonotary.

From Truman D. Wade, West Chester, Pa.


author: Patterson, P. J.,

text:
    Dowling v. Lincoln Deposit and Trust Company.

      Mcllvain, Murphy & Mohn and John Woodcock, for plaintiff.

      Scheeline & Smith and Robert W. Smith, for defendant.
    Sept. 16, 1929.
   Patterson, P. J.,

— This is an action brought by the plaintiff against the defendant to recover the sum of $10,000 claimed in the original plaintiff’s statement, and reduced to $9000 in two amended statements, and representing a loss alleged to have been sustained by plaintiff as a result of defendant’s retention of 100 shares of Superior Silicia Brick Company stock, represented by certificate No. 242. Upon the trial of the case, a judgment of non-suit was entered, and we are now asked to strike it off.

Findings of fact.

In April, 1920, the plaintiff was the owner of a certain certificate of the capital stock of the Superior Silicia Brick Company, No. 242, and dated Aug. 8, 1919, for 100 shares of the said Superior Silicia Brick Company of the par value per share of $100. At that time plaintiff was sales agent for the Superior Silicia Brick Company and Charles W. Albright was president of said brick company. The plaintiff and said Charles W. Albright became acquainted the latter part of the year 1919, and in their respective capacities were interested in the promotion of the Superior Silicia Brick Company. Albright, at the same time, was also president of the Lincoln Deposit and Trust Company of Altoona, Pennsylvania. In April of 1920, when the plaintiff purchased 100 shares of the original stock of the Superior Silicia Brick Company at $85 per share, Albright, as president of the brick company, demanded and received front him a note for $8000, payable to Albright individually, and $500 in cash, Albright saying to Dowling (so Dowling testifies) that he would discount the note at his bank and would use the certificate for 100 shares as collateral. The bank records show that the note was discounted at the bank on June 8, 1920, and that the collateral attached to the same consisted of certificate No. 61, in the name of Ellis L. Orvis, for fifty shares, and four certificates, Nos. 120, 124, 128 and 129, representing fifty shares in the name of Charles W. Albright. There is no bank record to establish the fact that certificate No. 242, belonging to the plaintiff, was ever attached to the note or at any time deposited as collateral with the bank.

Charles W. Albright, a witness called by plaintiff, testified that the certificate of stock No. 242, representing 100 shares, was delivered to the witness Albright to secure the payment of the note given as consideration for the purchase of said stock, and that he, Albright, used certificate No. 242 at the First National Bank at Bellefonte to procure a loan for the operation of the brick company in which both were interested. After the Dowling note was discounted at the Lincoln Deposit and Trust Company, Dowling paid interest from month to month until about Oct. 1, 1920, when the said Charles W. Albright requested the plaintiff to pay the note at the Lincoln Deposit and Trust Company, and they together arranged for a loan at the First National Bank of Pittsburgh in the sum of $8000, Albright depositing 400 shares of Manufacturers’ Coal Company stock belonging to him as collateral.

The plaintiff testified that he had an understanding with Albright that the proceeds of the loan from the Pittsburgh bank should be used to pay off his debt at the Lincoln Deposit and Trust Company. The transaction at the Pittsburgh bank was dated Oct. 4, 1920. On Nov. 1st the plaintiff received notice from the Altoona bank that his note there had not been paid. After receiving this notice, plaintiff called upon Charles W. Albright and received from him a promise to pay the interest, and the principal later. About seven or eight months later, Dowling received further notice demanding payment on the note and interest from Mr. Hutchison, who succeeded Albright as president of the Lincoln Deposit and Trust Company. In the meantime, Albright resigned as president of the bank and went into bankruptcy. After plaintiff learned on Nov. 1, 1920, that the money borrowed from the First National Bank of Pittsburgh had not been used to pay his loan at the Lincoln Deposit and Trust Company, he continued to pay interest at the First National Bank of Pittsburgh and from time to time renewed the note at that bank.

Discussion.

An investigation of the transaction at that time would have disclosed that the proceeds of the loan from the Pittsburgh bank had never been deposited to the credit of the plaintiff in the Lincoln Deposit and Trust Company bank or applied in payment of the note which said bank held against plaintiff, but had been deposited to the account of Charles W. Albright and used by him. An investigation would have further established the fact that the certificate of stock upon which this suit is based had never been with the Lincoln Deposit and Trust Company of Altoona. For some reason which does not appear of record, the plaintiff allowed the matter to go by default. There has never been any civil or criminal suit against Chsirles W. Albright for the wrongful application of said stock and the misappropriation of the proceeds of the loan from the Pittsburgh bank. The plaintiff was the only person other than Charles W. Albright who knew all of the facts in connection with the series of transactions, including the purchase and payment of the brick stock, the negotiation of the loan and the non-payment of the same at the Lincoln Deposit and Trust Company and the loan at the First National Bank of Pittsburgh. Notwithstanding his knowledge that his note was not paid, he made no demand upon the Altoona bank for the return of his stock now in question. In fact, he made no investigation at any time to determine whether or not his stock had ever been deposited as collateral with the Altoona bank. And it was not until March 25, 1925, that the plaintiff for the first time learned that the collateral attached to the Altoona bank loan was that issued in the name of Charles W. Albright and Ellis Orvis, although this knowledge could have been obtained by him at any time upon inquiry of the bank officials at their place of business in the City of Altoona. Plaintiff testifies that he did call upon the said Charles W. Albright and demand of him the payment of the note and the return of his stock after he had received the interest notice on Nov. 1, 1920, but nothing further was done in the matter until the institution of this suit on Jan. 16, 1922, or a period of one year and two months after plaintiff had notice that something was wrong.

It cannot be successfully contended in this case that Albright was acting solely as president of the Altoona bank. As president of the brick company, he had made the sale of the brick stock to Dowling and received the consideration therefor. Dowling did not know any other individual connected with the Altoona bank. Neither did he have an account with said bank. Albright, and not Dowling, arranged for the loan at the Altoona bank. It was Albright’s stock that was attached to the note as collateral security. It was Albright, also, who posted the collateral security and arranged for the loan from the First National Bank at Pittsburgh. Surely, the Lincoln Deposit and Trust Company was no party to the negotiating of the loan at Pittsburgh. There were two individuals interested in that transaction, namely, the plaintiff and Charles W. Albright. From a careful examination of the facts and the law, we are of opinion that the judgment of compulsory non-suit was properly entered, for the reason that the plaintiff failed, first, to support the allegata by the probata. The averment of the plaintiff that he negotiated the loan from the Lincoln Deposit and Trust Company and deposited with said trust company his certificate of stock No. 242, on that the said certificate of stock was deposited as collateral security for said loan, is not supported by the proof. He personally never negotiated the loan in question, neither did he deposit the stock described or any other stock as collateral security. Second, Charles W. Albright in this transaction was acting as the agent and associate of the plaintiff and not as president of the Lincoln Deposit and Trust Company. There is no evidence that the knowledge that Albright had was ever made known to any other person or persons connected with said bank. And in such case it has been ruled many times by our Supreme Court that such knowledge cannot be imputed to the bank. Third, the plaintiff has no standing on account of his laches. It was his duty, upon learning of the misapplication of the proceeds of the loan from the First National Bank of Pittsburgh, to ascertain what had become of the same. So far as he, Dowling, knew, no person connected with the Lincoln Deposit and Trust Company, except Albright, knew of this transaction. It was his duty to inform other members of the banking firm and learn what had become of his money and his stock. He could not wait seven or eight months, until such time as Albright was no longer president of the bank and in bankruptcy. It was alone his duty to prosecute Albright for misappropriation of this fund or to institute civil action against Albright for its recovery. No one else knew the facts, and yet he allowed months and years to go by, relying upon Albright’s promise to take care of him.

Legal conclusions.

It is a well-settled principle of law that the burden is upon the plaintiff in an action such as this to support the allegations of his statement by proof, and, upon failure to meet this requirement, it is the duty of the court to enter a compulsory non-suit.

“A non-suit will not be taken off which has been granted by reason of a discrepancy between the allegations in the narr and the proof at the trial:” Jenneson v. Camden & Amboy R. R. Co., 5 Clark, 409.

Albright, in this case, was acting in his own behalf and as agent for Dowling, and was not negotiating the particular business in question as president of the bank. In the ease of Dominion Trust Co. v. Hildner, 243 Pa. 253, it was held: “But, as the court below says, his knowledge of the facts was not gained while acting in any way for the trust company. He was acting for himself, or for another concern, in a different transaction. And in selling the note to the plaintiff company, his interests were antagonistic. It is true that in another capacity he was the agent of plaintiff. But, as was said in Gunster v. Scranton Illuminating Heat & Power Co., 181 Pa., 327, ‘no agent who is acting in his own antagonistic interest, or who is about to commit a fraud by which his principal will be affected, does in fact inform the latter, and any conclusion drawn from a presumption that he has done so is contrary to all experience of human nature.’ In the same opinion reference is made to the authorities which hold clearly that a bank officer who offers to his bank a note for discount is to be regarded in that transaction as a stranger, and the bank is not chargeable with the officer’s knowledge of fraud or want of consideration for the note. This principle must be regarded as settled law. See Merchants’ National Bank v. Lovitt, 114 Mo. 519, and the cases there cited.”

The Supreme Court, in the case of Allegheny By-Product Coke Co. v. J. H. Hillman & Sons Co., 275 Pa. 191, 203, says: “Particularly should his conduct be investigated where the agent stands in the peculiar relationship such as here appears. Hillman, the president of the defendant corporation, purchased an interest in the plaintiff company in the fall of 1916, and within a few months became a director. In making the subsequent contracts he was an active negotiator, and the actions of the agent were likewise controlled by him. There is no reason why an official of the corporation cannot be legally employed by it and receive compensation for his services, but his actions are subject to close scrutiny, and may be avoided if overreaching appears.”

And it is further held in Wilson v. Second National Bank of Pittsburgh, 4 Sadler, 68, 7 Atl. Repr. 145: “The knowledge of Wilson as treasurer of the tool company cannot be imputed to the bank of which he was cashier, unless he revealed that knowledge to some one or more of its officers; but of this there is no evidence.”

While either of the above rules of law is, in our judgment, fatal to the plaintiff’s cause, he meets with the most serious of all obstacles when we come to consider his withholding from the defendant bank the vitally important knowledge of the transaction which so materially involves the rights of the parties to this action. It seems to us that it would be unreasonable, unjust and without any excuse whatsoever for the courts to permit the plaintiff to profit as a result of a fraud which he knew had been committed in less than thirty days after the commission of the same and yet withheld that knowledge from other officers of the defendant bank. This case, in our judgment, finds the plaintiff in exactly the same legal position as he was in in the case of the First National Bank of Pittsburgh v. Dowling, 286 Pa. 483. In opinion by Mr. Justice. Kephart, the Supreme Court says (page 487) : “Appellee [Dowling] knew the money was to be used to pay off his Lincoln bank note. That was not’ done. Knowing that fact, whether instructions were sent or not by the Pittsburgh bank, it was his duty, in the exercise of ordinary diligence, to ascertain why his note was not paid: Padgett v. Lewis [54 Fla. 177, supra] ; Montfort v. American Guano Co., 108 Ga. 12, 33 S. E. Repr. 636. He would then have learned, if it was a fact, that the Pittsburgh bank had not given the notice. His further duty, before giving the renewal note, which admitted the indebtedness without reservation, was to notify the Pittsburgh bank of what had occurred.” And on page 486: “Nor is this a case of appellant acting as an agent in transmitting the information to the Lincoln bank. Even assuming that it is, however, appellee knew, when he received the demand for interest from this bank, that his instructions had not been carried out somewhere along the line. Had proper steps been taken, his agent, appellant, could have proceeded in some way to eliminate or reduce the loss. This was a substantial right that appellee could not, at least negligently, injure. . . . Had some action been taken at once or within a reasonable time after the principal discovered the default, appellant might not now complain. . . . Appellant was never given an opportunity to enforce any right it might have had against the Altoona institution. Consequently, appellee [Dowling] is now estopped from setting up failure to give notice as a defense; his silence as to this defense, when he ought to have spoken, precludes him from being heard, when he should be silent.”

The motion to take off compulsory non-suit is hereby refused and new trial overruled.


author: Saylor, Dep. Att’y-Gen.,

text:
    Contracts of Beneficial Societies.
    March 6, 1930.
   Saylor, Dep. Att’y-Gen.,

— We have your request for an opinion as to the application of the Act of April 26, 1929, P. L. 805, to the contracts of beneficial societies entered into prior to its passage, both with respect to the amount of death and benefit payments made thereunder and to the amount of reserves to be set up under the provisions of the act.

Section 1 of the act provides that beneficial societies may enter into contracts for the payment of money or benefits not exceeding $10 per week in the event of sickness, accident or disability, and not exceeding $250 in the event of death, and section 2 says it “shall be unlawful” to contract for or to pay any sums in excess of those amounts.

Section 3 of the act provides that “any such corporation shall maintain reserves on the life portion contained in all policies or contracts issued, based upon a standard table of mortality, with interest at three and one-half (3&) per cent, per annum, approved by the Insurance Commissioner of this Commonwealth ; and on the disability portion contained in all policies or contracts issued, of fifty (50) per cent, of the actual weekly, monthly or annual premiums or payments in force; and shall also maintain full reserves for all definite and outstanding claims.”

Section 4 provides penalties for violation of the act consisting of fines from $100 to $500 for each contract entered into or payment made in violation thereof.

The question arises as to whether or not the effect of this act is retroactive. There is nothing in its phraseology which indicates that it is to be retroactive, and for this reason it must be considered as active only in the future. This is the general interpretation of laws by the courts.

In Dewart v. Purdy, 29 Pa. 113 (1858), the court, speaking through Woodward, J., stated as follows: “Retroactive legislation is not necessarily unconstitutional; but unless it be remedial, it is uncongenial to our institutions, and hazardous to private rights. Nothing short of the most indubitable phraseology is to convince us that the Legislature meant their enactment to have any other than a prospective operation; and when they fix a future day for it to take effect, they stamped its prospective character on its face. ...”

This is repeated in Com. v. Danville Bessemer Co., 207 Pa. 302 (1904), which, like the above case, is cited in Investors Realty Co. v. City of Harrisburg, 82 Pa. Superior Ct. 26 (1923), where, in the dissenting opinion written, by Judge Linn, it was stated (page 42): “. . . ‘There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the Legislature: . . .’ ” Citing Neff’s Appeal, 9 Harris, 243.

In Wolpert v. Knights of Birmingham, 2 Pa. Superior Ct. 564 (1896), and Schoales v. Order of Sparta, 206 Pa. 11 (1903), the Act of April 6, 1893, P. L. 7, was interpreted as being prospective in its operation. It was held that its provisions limiting the payment of death benefits by beneficial societies to certain relatives or persons dependent upon the member could not affect the rights of holders of certificates issued prior to that time. In the former case, the court said: “The language of this statute is too plainly prospective in its operation to admit of any doubt.”

Even though it could be properly determined that the Act of 1929 was intended by the Legislature to have a retroactive effect, it could not be so interpreted if its effect were to result in an impairment of contracts: Myers v. Lohr, 72 Pa. Superior Ct. 472 (1919).

Where an act in being retroactive effects, an impairment of contracts, it is unconstitutional, in that it violates article I, section 10, of the Federal Constitution, and article I, section 17, of the Constitution of the Commonwealth of 1873.

Were the Act of 1929 to be interpreted to mean that on contracts written prior to the date of its passage beneficial societies could not pay any amount in excess of $10 per week benefits or $250 in the event of death, it would be unconstitutional. For the same reason, if its interpretation were to carry with it the setting up of reserves under the Act of 1929 on contracts written prior to its passage, it would likewise be unconstitutional as having the same effect of impairing the obligation of contracts. It would do this for the reason that thereby it would cause a change in the method of setting up reserves, a different allocation of portions of the assets of the beneficial society to purposes other than those theretofore existing, and, in all probability, a diminution of the benefits to which holders of such contracts had theretofore been entitled.

You are, therefore, advised that the Act of April 26, 1929, P. L. 805, is applicable only to contracts entered into by beneficial societies subsequent to its passage.

From C. P. Addams, Harrisburg, Pa.


author: Hicks, J.,

text:
    Rumble v. Locust Mountain Coal Company.

      B. V. O’Hare and F. F. O’Hare, for plaintiff.

      M. M. Burke and P. H. Burke, for defendant.
    Feb. 24, 1930.
   Hicks, J.,

— In the plaintiff’s statement it is averred, inter alia, that he is the owner of a tract of land in Union Township, through which flows a stream of water known as Dark Run, across which he constructed a dam; he also constructed upon the said land, and operated, a grist and sawmill. The tract of land, mill and stream were used by him in carrying on his business of milling, sawyer and harvesting ice from the dam; that between Jan. 7, 1923, and the time of bringing this suit, the defendant wilfully, wantonly, wrongfully, injuriously, negligently and unlawfully kept and continued and caused to be dumped from its stripping on the Locust Mountain refuse on the northern slope and at the headwaters of Dark Run, which refuse consisted of eartb, gravel, rock and clay, and during freshets and rains was washed into the stream, polluting the water and causing the bed of the stream and the dam of the plaintiff to be completely filled to the breast with the refuse. The plaintiff sets out his damages as follows: “9. That by reason of said refuse filling up the bed of said Dark Run and dam on plaintiff’s land the plaintiff’s milling, sawyer business and ice harvest was entirely cut off.” “10. That by reason of said refuse filling up the bed of said Dark Run the water and refuse has flown over his land, making it unfit for farming and the water unfit for domestic purposes.” “11. That also by reason of said refuse caused by said dump the lands of the plaintiff have been so depreciated in value and damaged that the plaintiff has been prevented from using said lands for the conduct of his lawful business and for the sale thereof, to the great damage to plaintiff.” “Wherefore, the plaintiff has sustained damage to the extent of Fifty Thousand ($50,000.00), and therefore he brings this suit.”

The defendant filed a petition for a rule for a more specific statement, which was awarded. The defendant, in its petition, alleges that the statement should be more specific in setting out the damage alleged to have been sustained, and that in order to properly prepare and make its defense against the claim, it is necessary that the plaintiff should set forth specifically what damages he suffered in each of the matters set out in his statement of claim. The damages alleged to have been suffered by the plaintiff in his statement by the refuse filling up the bed of the stream and the dam and overflowing his land were, paragraph 9, the cutting off entirely of the plaintiff’s milling, sawyer business and ice harvest; paragraph 10, unfitting the land for farming and the water for domestic purposes; paragraph 11, depreciating the land in value and damaging it so that “the plaintiff has been prevented from using said lands for the conduct of his lawful business and for the sale. . . .” And, then, a lump sum is claimed to cover all the damage set out in the paragraphs just referred to. The plaintiff argues that the damages claimed are sufficiently specifically set forth, and that this being a trespass action it is not necessary to set out the apportioned damage for each specific loss, and that a claim for damages in a lump sum meets the legal requirements.

There is no doubt that where a statement of claim is not sufficiently specific, the remedy is for a rule for a more specific statement: Long v. McAllister, 275 Pa. 34, 39; Rhodes v. Terheyden et al., 272 Pa. 397, 401; Sutton v. Reed et al., 80 Pa. Superior Ct. 158; Patterson v. Union Transfer Co., 84 Pa. Superior Ct. 273. In the case of Moser v. Fernsler, 23 Schuy. Legal Rec. 95, this court, through Bechtel, P. J., has held that the plaintiff’s statement must be a bill of particulars in an action of trespass as well as in an action of assumpsit under the Practice Act of 1915, and that the provisions of section 13 of the said act, relieving defendants from filing an affidavit of defense denying certain allegations as to the damages claimed, do not relieve the plaintiff from the duty of giving a detailed statement of the damages claimed as section 5 of the act provides. See, also, Hyde Park Gas Co. v. People’s Coal Co., 29 Dist. R. 841; Diehl v. Stewartstown R. R. Co., 6 D. & C. 269; Bollinger v. Greenaway, Jr., 3 D. & C. 312; Ritchey v. Pratto et al., 4 D. & C. 188.

Section 5, Practice Act, 1915, requires that “every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim,” and not merely the amount of it. Under the decisions of the courts construing this act in actions of assumpsit, general allegations, indefinite claims, lumping charges, inferences and conclusions of law are all excluded from the pleadings, and only specific allegations of material facts are properly admissible therein. But under the title and the amended section 1 of said act, its provisions are made applicable alike to all actions of trespass as well as those of assumpsit, except actions of libel and slander. The only exception to its full applicability to actions of trespass like this is! found in section 13, where it is provided that certain averments of the plaintiff’s statement need not be denied by an affidavit of defense, but will be treated as at issue without any answer thereto, unless they are expressly admitted. In an action of trespass for injuries to plaintiff’s automobile, it was said that the plaintiff’s statement must be a bill of particulars, and a statement filed in another trespass case, containing long schedules of the items of damages claimed, was held to be in proper form under section 5 of the said Practice Act: King et al. v. Brillhart, 271 Pa. 301, 305; Charnogursky v. Price-Pancoast Coal Co., 249 Pa. 1, 3; Hawes v. O’Reilly, 126 Pa. 440; Bittner v. City of York, 34 York Leg. Record, 173; Dietz v. American Agricultural Chemical Co., 29 Dist. R. 691; Williams v. Capute, 1 D. & C. 767. Prom the decisions, and from the evident purpose of the Practice Act, 1915, to compel a full disclosure in the pleadings of all the material facts and details of the respective claims of both parties, there seems to be little room to doubt that in trespass as well as in assumpsit general claims and lumping charges are inadmissible. Therefore, all claims for damages which are susceptible of itemizing, or otherwise being set forth in detail, must be so presented in the pleadings in actions of trespass: Philadelphia Storage Battery Co. v. Air Reduction Sales Co. (Pa.), 274 Fed. Repr. 216; Hyde Park Gas Co. v.) People’s Coal Co., supra; Kohr v. Fox Baking Co., 31 York Leg. Record, 161; Trevena v. Zimmerman, 30 Dist. R. 1072.

Several lower court cases were cited in the brief of the plaintiff, holding, as under the old practice prior to the Practice Act of 1915, that in trespass cases items and details need not be set out in the plaintiff’s statement. But they fail to give effect to the provisions of section 5 of the said act, or to recognize the fact that, save for the specific exceptions set out in section 13 thereof, all its general provisions apply alike to actions of assumpsit and of trespass, except libel and slander. The provisions in section 13 of the Practice Act relieving the defendant from filing an affidavit denying certain allegations as to the damages claimed do not relieve the plaintiff from the duty of giving a detailed statement of the damages claimed under the provisions of section 5. The primary object of requiring specific information to be given to the defendant is not to enable him to file an affidavit of defense, but to make defense thereto at the trial, and he is, therefore, entitled to such information, though he may be relieved of the necessity of denying plaintiff’s claim in the pleadings. In the case of Atherton v. Clearview Coal Co., 267 Pa. 425, wherein a suit in trespass was brought to recover for injuries to property alleged to have resulted from the negligent mining of coal, the plaintiff set out specifically in his statement the amount of damages claimed for each of the injuries enumerated in the statement and then claimed for the aggregate sum of all the damages; the Supreme Court held that the statement met every requirement of the Practice Act and that it was in proper form and was specific.

Referring to the statement in this case, in paragraph 9, the plaintiff avers that he suffered injury, in that his milling, sawyer business and ice harvest were entirely cut off. The extent and amount of the loss do not appear as to his milling business, his sawyer business or his ice business. The defendant is entitled to know what specific damage the plaintiff claims for loss in his milling or sawyer business, and what specific damage he claims for loss of his ice crop, and whether it is for one year or more than one. The same applies to paragraph 10, wherein he alleges that the act of the defendant had made his land unfit for farming and the water of the stream unfit for domestic purposes. This is indefinite, in that he does not state whether all or part of his farm and how much was rendered unfit for agricultural purposes, neither does he set out what he claims for this particular loss. Neither does it appear how much damage he claimed for the pollution of the waters of Dark Run. In reading paragraph 11, it is very difficult to determine just what the damages are which the plaintiff claims to have suffered. It reads as follows: “That also by reason of said refuse caused by said dump the lands of the plaintiff have been so depreciated in value and damaged that the plaintiff has been prevented from using said lands for the conduct of his lawful business and for the sale thereof, to the great damage to plaintiff.” Does he claim for depreciation in the value of his farm and the damage caused thereto, or does he claim for damages because he has been unable to use the lands for the conduct of his business of agriculture, milling, sawing and ice harvesting, and also for damages because he has been unable to sell the farm? If he is claiming for the loss of the use of his lands for the conduct of his lawful business, because they have so greatly depreciated in value and have been so damaged by the act of the defendant, then he ought specifically to set forth what damage he claims for the loss of this use, and, in that connection, it is well to remember that in the 9th paragraph he claims damages because his business was entirely cut off. And if he is claiming for injuries suffered by him through being unable to sell the land because of its great depreciation in value and damage through the defendant’s act, then he ought to specifically set forth what his damage was for this injury and how it was made up. This applies, of course, to all the injuries which he claims he has suffered through the wrongful act of the defendant. The defendant has a right to know what it will be required to meet, and the stating in the concluding paragraph of his statement that he has sustained damage in the lump sum of $50,000, for which he brings suit, is not sufficiently specific and does not meet the requirements. His losses and injuries should be definitely and specifically averred, and the damages which he claims should be particularized for each injury wherever it is possible.

The rule to show cause why the plaintiff should not file a more specific statement is made absolute, and the plaintiff is allowed fifteen days from this date to file an amended statement of claim in compliance herewith.


author: MacDade, J.,

text:
    Commonwealth v. Chadwick.

      William J. MacCarter, Jr., and Louis A. Bloom, for Commonwealth.

      Taylor, Chadwick & Weeks and Thomas A. Curran, for defendant.
    Jan. 6, 1930.
   MacDade, J.,

— A proceeding in summary conviction was instituted against the defendant for an alleged violation of section 1016 of article X of the Motor Vehicle Act of May 1, 1929, P. L. 905, which section relates to “Thru Traffic Stop” signs.

This section reads as follows:

“Section 1016. Vehicles Must Stop at Certain Through Highways. — It shall be unlawful for the driver or operator of any vehicle, street car or trackless trolley omnibus, before entering a through highway, to fail to come to a full stop, within a reasonable distance before entering the intersection on such through highway, when ‘thru traffic stop’ sign has been erected in accordance with the provisions of section one thousand one hundred and twelve (1112) of this act.”

Section 1112 provides:

“The Secretary of Highways of this Commonwealth, with reference to State highways, and local authorities in cities, boroughs, incorporated towns, and townships of the first class, with reference to highways under their jurisdictions, cure hereby authorized to designate through highways, by erecting at the entrance thereto from intersecting highways signs bearing the words ‘thru traffic stop,’ the word ‘STOP’ to be in letters at least six (6) inches in height, and the letters of the words ‘THRU’ and ‘TRAFFIC’ shall be of the form and size approved by the Secretary of Highways of this Commonwealth, notifying operators of vehicles and street cars to come to full stop before entering or crossing such designated highway: Provided, however, that vehicles, street cars and trackless trolley omnibuses shall not be subject to the provisions of this section, at any intersection during the hours when a traffic signal is actually in operation or where a peace officer is actually on duty directing traffic.”

The proceeding was instituted by an officer of the State Highway Patrol, who was stationed at the intersection of two State highways, one of which was designated as a “Through Highway,” charging that the defendant did, on Aug. 4, 1929, in the afternoon thereof, at the intersection of Providence Road and Waterville Road, violate section 1016, article x, of the Motor Vehicle Act, as aforesaid, by failing to bring his motor vehicle, which he was operating, to a stop or full stop at a sign bearing the inscription “Thru Traffic Stop,” alleged to be placed or erected at the entrance thereto. There was no charge of recklessness or carelessness in the manner of the operation of the said vehicle; indeed, there is very little variance between the accounts of the occurrence, which took place when the defendant had full knowledge of the presence of the officer stationed at the intersection of Providence Road and what is commonly called the “Sproul” Road, leading from Chester to Radnor.

The defendant waived a summary hearing and gave bond to appear in court, which he did, and a trial was had and the defendant orally acquitted and discharged and the case dismissed upon the evidence adduced and the law applicable thereto. This proceeding was correct, for the defendant could raise the question of jurisdiction at any time: Com. v. Good, 33 Dauphin Co. Reps. 74.

To convict him in any event of violating the Automobile Act, the Commonwealth must satisfy the court beyond a reasonable doubt of the defendant’s guilt: Com. v. Garrett, 16 Del. Co. Reps. 348.

The complainant in the case at bar preferred charges (complaint) before one Justice of the Peace Rockett, of Eddystone Borough, while the act or occurrence complained of actually occurred in the Township of Lower Providence and on a highway leading into the City of Chester and not to Eddy-stone Borough, which is located east of Chester, while the act alleged occurred north of the City of Chester. Apparently, the patrolman was a stranger to the vicinity, and no inquiry was made by him whether there might be any nearer available magistrate to whose jurisdiction the matter was committed by the express terms of the act.

This action of the officer we do not regard in this case as either intentionally oppressiye or in wilful disregard of the law; as a matter of fact, he evidently did not know that the law put a special duty of inquiry upon him as to such matter; nevertheless, the injunction of the Legislature is express, that such complaints must be made before the “nearest available magistrate” (section 1201). The defendant established that at least one magistrate, Alderman Oglesby, of the 1st Ward of the City of Chester, with offices at No. 1821 Edgmont Avenue, was nearer the scene of the arrest, and that he was in fact “available” when the complaint was made. The presumption in such cases, we think, should always be that the nearest magistrate is “available,” unless it affirmatively appear that he is entirely absent from the scene of his duties or incapacitated by illness or otherwise.

If this question was presented to this court as a novel one, we think the conclusion that Justice of the Peace Rockett was without jurisdiction would present no difficulty, for it has already been decided by another court of this Commonwealth, in the recent opinion of Judge Hargest in Dauphin County in Com. v. Good, supra, who declared:

“The statute is plain, positive and mandatory; jurisdiction was given to the nearest available magistrate, and there were three nearer than the alderman before whom the charge was brought, two of whom, as far as the evidence disclosed, were available.

“We may say, in passing, that committing magistrates should first inquire into their jurisdiction, under this statute, before accepting cases.

“The defendant lost no rights by waiving a summary hearing and giving bond to appear in court. He could raise the question of jurisdiction at any time. Even though he had taken an appeal, it would not have operated to give consent to jurisdiction. When, therefore, the evidence disclosed the lack of jurisdiction of the alderman, it was the duty of the court, on motion of the defendant, to dismiss the case, which was done.”

This question has also been passed upon in a recent decision by Judge Cor-son, of Montgomery County, in the case of Com. v. Swartley, from which recent opinion we quote the following:

“The defendant, and it may be properly, assumed the burden of showing that the magistrate from whom this appeal was taken was not ‘the nearest available magistrate’ within the meaning of section 1201 of the act. It was shown by the defendant’s testimony to the satisfaction of the court, and apparently of the Commonwealth’s officers as well, that the magistrate from whose office this appeal was taken was not by several miles the nearest available magistrate.

“Such being the fact, and the offense charged not being designated either as a felony or as a misdemeanor, it follows that the magistrate before whom the information was lodged in the present case did not have jurisdiction. The contention of the Commonwealth, however, is that the question of jurisdiction should have been raised' before the magistrate, and bail having been entered for an appeal to the Quarter Sessions, the Quarter Sessions hearing the ease de novo has jurisdiction in the matter. We cannot agree with this contention. The question of jurisdiction of the subject-matter may be raised at any time, even though the case has gone from a magistrate’s office to the Supreme Court before the question is brought up. Where a court has jurisdiction of the subject-matter, a defendant might waive jurisdiction of his person in such a manner as to come within the jurisdiction of the court, but if the court has no jurisdiction of the subject-matter, no appeal, waiver or other act of the defendant can confer such jurisdiction upon such court: In re Scottdale Borough Annexation, 91 Pa. Superior Ct. 1.

“It may be that the phrase ‘nearest available magistrate’ may add to the difficulties of prosecuting the minor offenses named in the Motor Vehicle Act, but as the jurisdiction for the prosecution of such offenses has .been fixed by the statute, we cannot by any judicial interpretation change the plain wording of the Act of Assembly. This question has already been decided in an opinion filed by Judge Hargest, of Dauphin County, in Com. v. Good, 33 Dauphin Co. Reps. Y4.

Why the State highway partolman did not take the defendant before the “nearest available magistrate” we are not clearly advised, but if the practice of instituting all the cases of this patrolman for summary offenses before selected justices or alderman, who in the course of time perhaps fail to act impartially, but at the dictates of such officer, is persisted in, such practice should be discontinued as unwarranted and the officers should receive the severest reprimand from their superior officer in the State Highway Department for such reprehensible procedure. The unwarranted practice should be immediately discontinued.

For this reason, the defendant was entitled to an acquittal and to have the case dismissed, which we did, swpra, and for other reasons also, namely:

1. There was no competent evidence before us that the sign “Thru Traffic Stop” was official; that is to say, that the word “Stop” was in letters six inches in height, and that the letters of the words “Thru” and “Traffic” were in the form and size approved by the Secretary of Highways of this Commonwealth.

2. There was no competent evidence before us that the said Secretary of Highways, with reference to State highways, designated Providence Road or Sproul Road, both of which are such, as a “through highway.”

3. Because the sign, supra, was not erected at the entrance thereto of a State highway or highways designated as a “through highway.” The “Stop” sign was on the right-hand side of Providence Road and not at the entrance to the Sproul Road, which was said to be a “through highway,” but not by legal proof of such designation by the Secretary of Highways.

It appears by the testimony that, on Aug. 4th last, there was a “stop sign” placed on the right-hand side of Providence Road, at or near the intersection of that road and the Waterville Road, a minor highway, since removed to another location, being the entrance to the said “through highway,” where it intersects the said Providence Road. The officer evidently regarded this sign as controlling traffic entering “the Sproul Road,” which here bears away on the left from the Providence Road toward Swarthmore; and as requiring a vehicle to stop approximately at the sign itself. Such an interpretation loses sight of the fact that while there is a general paved area at this point, in the form of a generous triangle running southwardly toward Chester, nevertheless the lanes of the traffic on the “Sproul Road” do not actually intersect with traffic on the Providence Road for quite a considerable distance beyond the sign as then placed.

The defendant pointed out, first, that, while the officer undertook to testify that the “Sproul Road” is a through-traffic road, it was essentially a conclusion of law, flowing from the acts and decisions of a particular officer, the Secretary of Highways, evidenced by his causing signs of a particular character to be placed against traffic approaching "the intersection of such road. The officer actually knew no more about it than that there was a sign of some sort at the place where the Providence Road crosses the Waterville Road. No one contends that the latter road is a through-traffic highway; it is not even a State highway route. Even if we could indulge the rather violent assumption that every sign placed along any highway is there by act of some responsible authority, it yet remains to be established as a matter of fact that the sign complies with the exact provisions of the law, which are highly mandatory and precise. There was no evidence that this sign in question bore the word “Stop” in letters at least six inches high, or anything else establishing that it was such a sign as motorists are bound to give particular attention to.

While the defendant did not stop at the sign, and moved across the Water-ville Road, he did actually come to a stop a few feet further on, before reaching the intersection of the traffic lane of the Sproul Road. True, he admittedly did this under compulsion of the officer’s orders, as he did not in fact see or know of the presence of the sign; but the stop was none the less effective, and we think that an officer’s action in preventing illegality is even more commendable than when he stands by and permits unintentional breaches of the law with the intention of prosecuting such infractions.

The officer, who was in uniform, was at the time stationed at this point, as he says, for the purpose of “checking” on this “stop” sign. When the defendant approached the intersection, he was in the roadway and within this paved triangle. The defendant pointed out that, under these circumstances, the intersection was, so far as he could observe and know, manned by an officer who was directing traffic, and the officer did in fact direct him, though only to “pull up” beside the road. The significance of this cannot escape the court, because the Motor Vehicle Act expressly provides, with reference to these “Thru Traffic Stop” signs, “That vehicles . . . shall not be subject to the provisions of this Section at an intersection during the hours when a traffic signal is actually in operation or when a peace officer is actually on duty directing traffic (section 1112 a).

It would certainly be unfair to the motoring public, made up both of our own citizens and welcome visitors from other states, to hold that they are denied the protection of this latter provision of the law, which is just as important and no doubt just as wisely considered as the other provisions of the act; and the provision would lose all practical utility unless the motorist may properly assume that a uniformed peace officer, stationed in a highway at an intersection, is there directing traffic. Certainly, under the circumstances of the present case, the presence and action of the prosecuting officer make it at the very least doubtful whether the defendant was bound to stop under the circumstances, and no such uncertainty can be brooked where a penalty is sought involving a solemn conviction for illegal misconduct.

At the hearing, the defendant insisted upon all his rights; this placed the burden upon the complainant, as the section is penal, and the courts are bound to protect citizens against the indignity and injustice of convictions not clearly shown to be justified in law and in fact.

Such a statute, being penal, must be strictly construed, and, being ambiguous, must be and is construed in favor of the innocence of the defendant: Com. v. Walck, 18 Del. Co. Reps. 19.

4. Because “vehicles shall not be subject to the provisions of this section at an intersection during the hours when a traffic signal is actually in operation or when a peace officer is actually on duty directing traffic” (section 1112 a.;.

This officer was in uniform at the time of the alleged offense and stationed at the intersection of Sproul Road (through highway) and the said Providence Road. Why should not the defendant properly assume that a uniformed peace officer, stationed in a highway at an intersection, is there actually on duty directing traffic?

We think the prosecution must fail for the above reasons, and, therefore, we make the following

Order.

And now, Jan. 6,1930, the above matter coming on to be heard by testimony and argument, after due consideration of the proofs and allegations, the court doth order and decree that the defendant, E. Wallace Chadwick, be and is hereby found not guilty of the charge preferred against him in violating section 1016 of article x of the Motor Vehicle Act; further, that he, the said E. Wallace Chadwick, be and is hereby discharged from custody and the case is dismissed.

From William it. Toal, Media, Fa.


author: Galbreath, P. J.,

text:
    Llewellyn’s Petition.

      Thomas H. Greer, for petitioner; 3. W. Hutchison, contra.
    Oct. 14, 1929.
   Galbreath, P. J.,

— The petitioner is the owner of a tract of land in Buffalo Township, Butler County, Pa., through which passes State Highway Route 387. Said highway was formerly a public road passing through petitioner’s land, but which by proper legislation was made a State highway, known as Route 387. After the taking over of said highway by the Commonwealth, the location was changed in that portion of it which passes through petitioner’s land in such manner that the highway as relocated is on different ground from the original road. On the petition of the owner, viewers were appointed to assess damages caused by reason of the relocation of said highway. The viewers in their report find that the petitioner has sustained damages and assess the same in the amount in the said report set forth. To the report so made exceptions are filed on the part of the County of Butler. The exceptions are as follows: First. The report of the viewers is defective, in that there is not attached to it any map or plot showing the amount of land taken, if any. Second. It is evident from the report of the viewers that in assessing damages sustained by Annie Llewellyn, they have considered damages on account of change of grade and have assesed the same to be paid by the County of Butler, the same being an item for which the County of Butler is not liable. Third. The said Annie L. Lewellyn is not entitled to any damages whatsoever for or on account of the change of location, change of grade or any other matter whatsoever, for the reason that, prior to the improvement of the said road, the said Annie L. Llewellyn agreed to waive and release any and all damages.

In passing upon these exceptions, the court can consider only those things that are apparent of record. In the answer filed, however, on the part of the petitioner to the exceptions filed, it is set forth that the waiver of damages alleged in exception No. 3 had reference to another road and not to the road as relocated and now under consideration. On the argument of the exceptions, it was urged by counsel for the petitioner that the alleged waiver was given in connection with improvement of said public road prior to the time it became a State highway, and that the waiver was exhausted in the improvements so made. However this may be, it would not seem that this is a matter to be considered on exceptions to the report of the viewers, which, as we take it, should be confined to things appearing or not appearing upon the record. If, however, the alleged waiver be of such character as to be applicable to the highway as relocated, that matter can be shown by way of defense on the trial of the issue on appeal from the report of the viewers.

It is further urged on part of the exceptant that it appears from the report of the viewers that the estimate of damages included damages on account of change of grade. If this were the only factor entering into the present consideration, and if the only change made in the highway was in the grade thereof, this position would be well taken, as it has been settled by decisions of our higher courts that where the only damage alleged is that of a change of grade, without having taken or appropriated any land and without having changed the horizontal position of the centre or side lines of the highway, no damages can be given: State Highway Route No. 72, 71 Pa. Superior Ct. 85, and cases therein referred to.

The implication of these eases, however, is that where the lines of the highway are changed or an entirely new location is substituted for the former one, damages may be secured, and in the assessment of the damages, all the factors entering into the new location are to be considered. In other words, how does the relocated road, including the land taken, the lines thereof, together with the grades established, affect the value of the land through which it passes? In the case of Allison v. Bigelow, 68 Pa. Superior Ct. 219, the elements of damage which may be considered growing out of a relocation of a State highway are set forth somewhat at length. In that case it was contended on the part of the Commonwealth that damages, under section 16 of the Act of 1911, known as the Highway Act, could only be allowed or claimed for land actually taken. The court there cited that portion of section 16 of said Highway Act, which provides, inter alia, that when the owners of property damaged by the construction of a highway fail to agree with the proper officers, they “may present their petition to the Court of Quarter Sessions for the appointment of viewers to ascertain and assess such damages; the proceedings upon which said petition and by the viewers shall be governed by the laws relating to the ascertainment and assessment of damages for opening public highways.” The court then proceeds as follows: “How much room is there for discussion as to the meaning of the language quoted? If a public road were to be opened in the usual and regular way, there could not be much doubt the paymaster must pay not only for the land actually taken in opening the new road, but also for any injury to or destruction of the property of an abutting owner necessarily brought about by the construction of the new road at the grade fixed.”

It would, therefore, appear that where a highway is relocated, all elements of damage growing out of such relocation, including the grade as fixed, are matters for consideration by the viewers appointed to assess the damages.

A further exception to the report of viewers is that said report is defective, in that a map or plot showing the amount of land taken, if any, is not made a part of the report. It is to be observed that the function of the viewers was not to lay out, change or vacate a public road, but only to ascertain the damages caused by the opening of a highway according to a plan and specifications thereof prepared by the Highway Department, a copy of which plan and specifications is filed in the office of the county commissioners. It is evident that the viewers could not, if they would, change the location thus fixed. All the information concerning it is already in the possession of the exceptant in the form of a plot or draft filed in the office of the commissioners. The road as relocated was constructed, as the law requires, under the supervision of the Highway Department, and presumably is within the limits and upon the grades fixed by that department. No draft or plot which might be filed by the viewers could add anything to or detract from the things shown by the plot or draft in the possession of the county authorities.

For the reasons herein given, the exceptions to the report of viewers are dismissed this 14th day of October, 1929, and to this order a bill of exceptions is sealed for exceptant.


author: Biddle, P. J.

text:
    Gries v. Gries.

      Herman Berg, for libellant.
   Biddle, P. J.

— The divorce in this case was asked on the ground of desertion, and the evidence taken appears to sustain the averments of the libel. It appears, however, that service of the writ was made on the respondent “at the sheriff’s office in Carlisle.” No explanation of how the respondent came to be in the sheriff’s office nor how the service was made appears, and without some explanation a service of this sort suggests the existence of collusion.

“A readiness on the part of a respondent, who does not propose to resist the application, to assist the libellant by waiving the requirements of the law is inconsistent with the idea of the proceeding being adverse. It may not be sufficient of itself to establish collusion between the parties. I do not say that it is; but it is strongly suggestive of it. It shows a disposition to encourage and aid the proceeding, which practically results in active collusion. Acquiescence there may be, and generally is; but when it is expressed by active assistance, it is accounted something more, and should and does, to a certain extent, condemn the proceeding:” Bittinger v. Bittinger, 4 Dist. R. 441, per Stewart, P. J.

It is entirely possible that a satisfactory explanation in regard to this service can be given, and, as we have pointed out, the evidence appears to sustain the averments of the libel. We will not, therefore, dismiss the libel, but will refer the case back to the master for the purpose of taking testimony to show the conditions under which the service was made where it was made.

From Francis B. Sellers, Carlisle, Pa.


author: Van Dusen, J., Stearns, J.,

text:
    Nixon’s Estate.

      Thomas Hart, C. J. Hepburn and Theodore F. Jenkins, for exceptants.

      Ernest Scott and Thomas Stokes, contra.
    April 15, 1930.
   Van Dusen, J.,

— It seems to us that where there is a trust of income to continue for a period not altogether dependent on the lives of the recipients, and the income is to go meanwhile to a class, with the substitution of the issue of any member of the class who may die meanwhile, survivorship is to be implied within the class. Therefore, if one of the class dies during the trust, the income he has been receiving does not go to his personal representatives pur autre vie but to the others. This is the effect of the latest decision of Maxwell’s Estate, 261 Pa. 140. We believe it is a rule which best represents what the testator would have said if he had expressed himself fully.

The opposite conclusion, arrived at in Little’s Appeal, 81 Pa. 190, and many cases following it, is, we think, well explained in our ease of Megargee’s Estate, 10 D. & C. 595: “In each of the foregoing eases an examination discloses the gift of income to individuals, either by name or designation, with no gift over to any class as such.”

The spendthrift trust provision characterizes the gift as one personal to the legatee and makes it still more probable that the testator did not intend the interest of the legatee to continue after death, though we cannot say that it is controlling.

It is argued that the opinion in Maxwell’s Estate gives a pretty nearly conclusive effect to a spendthrift trust provision. As the will in that case did not contain such a provision, we do not believe the opinion is to be read in that sense. Nevertheless, this feature is now actually present in this will and it is entitled to consideration.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Stearns, J.,

dissenting. — This case relates to estates pur autre vie in income. Little’s Appeal, 81 Pa. 190, is the leading case which defines and establishes the existence of such an estate. Rowland’s Estate, 141 Pa. 553, is the leading authority for the doctrine that, despite the precise literal meaning of words creating a legal estate pur autre vie, nevertheless, the duration of the estate is a question of intention, to be determined from the general scheme of the will in its entirety. Many cases follow Little’s Appeal, while those adhering to Rowland’s Estate are numerous. In Megargee’s Estate, 10 D. & C. 595, we endeavored to review and classify the decisions. As we pointed out in Megargee’s Estate, page 601: “The test as to whether any given case falls under Little’s Appeal, or under Rowland’s Estate, is found in the case of Huddy’s Estate, 257 Pa. 528. This decision affirmed the judgment of the Superior Court, where the opinion was delivered by Mr. Justice Kephart, who said, on page 533: ‘All of the cases following Little’s Appeal are distinguished by the absence of any purpose of the testator to appropriate the estate exclusively to a class of legatees,’ and cites Rowland’s Estate and Babcock’s Estate as illustrations of this latter principle.”

Again, we said on page 601: “Another class of cases follows Little’s Appeal. In these cases income is given to children for their respective lives, and upon death of a child during continuation of the trust, the testator directs the income of the deceased child’s share to be paid to such deceased child’s children or issue. See Leech’s Estate, 228 Pa. 811; Dillin’s Estate, 47 Pa. Superior Ct. 158; Lafferty’s Estate, 59 Pa. Superior Ct. 24.”

The latter situation is precisely the instant case. It is a gift of income to children for their respective lives, with provision upon the death of a child during the continuation of the trust that the income of such deceased child’s share is to be paid to the issue of such deceased child “for and during the lives of the survivors or survivor of my said children.”

I can discover no intent of this testator, considering the will as a whole, to appropriate the estate exclusively to a class of legatees. Obviously, the testator was not dealing with beneficiaries in classes, and contemplating that upon the death of any one of the class, without issue, the class as to him would fail and consequently the life estate would fall in. There is no opening and closing of classes apparent under the language of the will. Quite to the contrary, all the testator indicates is that he desires his children to share equally his income until the death of the survivor. When a child dies, leaving issue, the issue is given the income theretofore enjoyed by the parent. If there is no issue surviving such deceased child, the child is given an unrestricted or general power of appointment, not only as respects the income, but extending to the share of principal as well. It is hard for me to conceive how there could be any plainer vesting of this income in decedent’s children and their issue for the life of the survivor of the children. The situation is specifically ruled by Leech’s Estate, 228 Pa. 311; Dillin’s Estate, 47 Pa. Superior Ct. 158; Lafferty’s Estate, 59 Pa. Superior Ct. 24. It is a vested estate in income pur autre vie.

The Auditing Judge conceded that an estate pur autre vie had been created, but decided that the existence of a spendthrift clause in the will prevented the estate from vesting. He ruled, “while the interest of [the deceased grandchild] appears in other respects to be an estate pur autre vie, his interest cannot be held to vest in him if by so vesting the spendthrift trust is defeated.” It is with this ruling that I disagree.

To be sure, the presence of a spendthrift clause may, in certain cases, be an important element in ascertaining testamentary intent. I do not understand, however, that its existence is a conclusive indication of intention against a vesting of a legal estate pur autre vie.

President Judge Rice had precisely this question under consideration in Lafferty's Estate, 59 Pa. Superior Ct. 24. lie said, page 38: “The spendthrift trust clauses of the will, to which counsel for appellants make elaborate reference in their learned and able argument, are to be considered in arriving at the testator’s intention, but they do not necessarily compel the conclusion that his intention could not have been that, upon the death of one of his children, leaving issue, without having exercised the power of appointment, the share of that child should vest in his children. If this was the actual, personal, and individual intent of the testator, as ascertained by consideration of the particular words of the 8th section and the general scheme of the will, it ought to control, and the provisions as to liability for contracts and debts, and exemption from execution and attachment, be restrained accordingly. In that view, neither the letter nor the true intent of these provisions was violated by giving effect to the disposition which Francis P. Lafferty made of his vested interest in the income by his will.”

The Auditing Judge and the majority rely upon Maxwell’s Estate, 261 Pa. 140, where Mr. Justice Potter said (page 146), referring to the effect of holding the interest to be vested pur autre vie: “. . . it would make the accumulation of interest on the share of one dying without issue a part of the estate of such a one, and, therefore, liable for his debts.” I cannot agree that such language should be taken to establish the doctrine attributed to it by the Auditing Judge. In the first place, my examination of the record in Maxwell’s Estate reveals that neither will contained a spendthrift clause. It would extend unduly an already lengthy opinion to discuss the facts in Maxwell’s Estate. It will suffice to say that Maxwell’s Estate, following explicitly Rowland’s Estate, supra, is a typical case of a devise to beneficiaries in classes, and, of course, when one in the class died without issue, the class as to him failed, and his life estate fell in. As Mr. Justice Potter said, page 146: “. .. it is apparent that the testator intended her children and grandchildren to be the sole objects of her bounty. . . .”

It is true that in Huddy’s Estate, 63 Pa. Superior Ct. 34, very careful attention was given to the spendthrift provision in the will, but, as pointed out by Mr. Justice Kephart (page 39), it was the intention of the testator to preserve the estate exclusively for the niece, her children and grandchildren. The spendthrift clause was another demonstration of the existence of this intention.

In the present case testator did not intend his children and grandchildren to be the sole objects of his bounty, because he specifically provided that where a child died without issue, such child could generally appoint. There is, therefore, no intention to preserve the estate exclusively for the blood of the testator. While a child lives he enjoys his share of the income; when he dies his issue takes, if he leaves any, and if not, then it passes according to the will of such child. Clearly, the estate is a vested one pur autre vie in the issue of a deceased child.

I would sustain the exceptions and award the share of income heretofore paid to Charles Miller, 2nd, to his personal representatives to be distributed according to the terms of his will.

Lampreóle, P. J., joins in this dissent.


author: MacNeille, J.,

text:
    Thommen v. Wolfe et al.

      M. A. Coyne and C. S. Wagoner, for plaintiff.

      William D. Harkins and Joseph L. McAleer, for defendants.
    April 23, 1930.
   MacNeille, J.,

— The plaintiff in this case is seeking to recover from the defendants as executors and trustees of John Thommen, deceased, the sum of $3100, on an alleged contract of suretyship made by the deceased several years before his death.

The written contract on which the suit is based is not in dispute. The principal contract was drawn up between the plaintiff and Thommen’s, Inc., a Pennsylvania corporation, and provided that, whereas the plaintiff had previously conducted a catering business which she had assigned to the corporation, and whereas the parties to the principal contract desired to guarantee the corporation against any future competition by the plaintiff, the plaintiff should not enter into the catering business in Philadelphia, and she should turn over to the corporation all orders that she received. In consideration of the obligations assumed by her, Thommen’s, Inc., agreed to pay her the sum of $5000 per year in weekly instalments, beginning with Nov. 1, 1921. The agreement further provided that if Mrs. Thommen was to remarry, the annual payments were to be reduced to $2500 per year, and that the payments should continue during the life of Mrs. Thommen. The agreement was signed by Thommen’s, Inc., and by the plaintiff, Bertha Thommen.

On this contract was endorsed the following writing, which is the basis of the instant suit: “Philadelphia, June 11, 1921. I hereby guarantee the fulfillment of the within agreement. John Thommen [Seal].”

Prior to bringing the suit in this court, the plaintiff had sued Thommen’s, Inc., on the principal contract in the Court of Common Pleas No. 5, as of September Term, 1926, No. 10226, which trial resulted in a verdict for the plaintiff in the sum of $724.01, and from this suit an appeal was taken to the Superior Court, and the Superior Court affirmed the judgment. (Thommen v. Thommen’s, Inc., 95 Pa. Superior Ct. 17.)

At the trial of this case, the plaintiff offered in evidence the record of the case in the Court of Common Pleas No. 5, and of the appellate court on the principal contract, for the purpose of showing that there had been a judgment for the plaintiff; there were also offered in evidence the pleadings in the former trial, for the purpose of showing that the issues involved in the case at bar and at the prior suit on the principal contract were the same. The record of the prior suit also indicated that the defendants in the instant suit had been sued jointly with Thommen’s, Inc., in the prior suit, but, by agreement of counsel, were permitted to withdraw as defendants from the prior suit; also, that counsel for the defendants in the instant ease represented all the original defendants in the prior suit, and that Walter C. Harris, an official of the Aldine Trust Company, one of the defendants in this case, testified for the defendant in the prior case. That the surety contract endorsed on the principal contract was signed by John Thommen was admitted. There was also testimony produced that the plaintiff has not engaged in any business since June 11, 1921. That summarizes all the testimony that was produced in this case on behalf of the plaintiff. The plaintiff then rested, and the defendant produced no testimony. At the conclusion of the! case, a calculation was handed up by the plaintiff, without objection on the part of the defendant, showing $3100 due the plaintiff, and the court directed a verdict for the plaintiff in this amount. A point for binding instructions was submitted by the defendant, which was refused, and a verdict for plaintiff resulted. Defendant has filed a motion for new trial and for judgment non obstante veredicto.

This case presents two problems. In the first place, the contract of surety-ship on which this suit is based is so ambiguous as to make any interpretation of it a mere guess. The decedent’s endorsement reads: “I hereby guarantee fulfillment of the within agreement.” Immediately the question presents itself as to whose fulfillment the decedent is guaranteeing. An examination of the principal contract itself throws absolutely no light on the subject. There are two parties to the principal contract, each one of which is agreeing to a “fulfillment.” John Thommen was the president of Thommen’s, Inc., one of the parties to the contract, and was the husband of Bertha Thommen, the other party to the contract, and whether he intended to become surety for his wife or his corporation, or both, it is absolutely impossible to determine from the principal contract or from the alleged contract of suretyship. The record of this case is absolutely devoid of any testimony which will help the solution of the problem, as all we have is a contract.

In the case of Little Manuf. Co. v. Lipschutz, 87 Pa. Superior Ct. 102, it was held: “Whenever a plaintiff seeks to make one liable for the debt of another, the case must be clearly proved, and every ambiguity in the evidence weighs in favor of the defendant: Kellogg v. Stockton & Fuller, 29 Pa. 460. In such a case, the law is well settled that the evidence of the promise to pay the debt of another must be clear and explicit and there should be no room for doubt: Unangst v. Hibler, 26 Pa. 150.”

That a contract of suretyship must be strictly construed in favor of the surety and that nothing can be added to it by implication is a well-settled principle of law.

Whether parol evidence would have reduced the whole contract to parol and made it unenforceable (Paturzo v. Ferguson et al., 280 Pa. 379; Safe Deposit and Trust Co. v. Diamond Coal and Coke Co., 234 Pa. 100) or not (Title G. & S. Co. v. Lippincott, 252 Pa. 112), we are not called upon to decide, as no such evidence was produced in this case. The statement of claim is not a part of the record (Buehler v. U. S. Fashion Plate Co., 269 Pa. 428), and even if it were, paragraph 8 of the statement of claim, which attempts to cover this point, is denied in the affidavit of defense in language which, by reason of the fact that the affidavit is made by an executor, is sufficient: McSorley v. Mamaux et al., Exec’rs, 28 Dist. R. 1010; Smyser v. Strawbridge, 4 D. & C. 297; Comerer v. Fraker’s Admin’rs, 29 Dist. R. 491; Act of March 30, 1925, P. L. 84. Moreover, the statement of claim is sworn to by the plaintiff, an incompetent witness in this case.

Nor can the record in the prior suit in the Court of Common Pleas No. 5 be used to clarify the situation. It was offered for the purpose of proving a recovery against the principal and notice to the surety, which was the only purpose for which it could be used. The suit was between different parties; the testimony in that suit was exclusively that of the plaintiff in this case, who is an incompetent witness in the case at bar; the only other witness called by the plaintiff in the prior case being John M. Ouzounian, whose testimony was confined to the passing of a resolution by the corporation in the principal contract. Since surety contracts must be strictly construed to impose upon the surety only those burdens clearly within its terms, this contract is unenforceable.

Nor is there any merit to the plaintiff’s contention that because this question was not raised at the trial and not included in the motion for a new trial, it is now too late.

In the case of Bayard v. Pennsylvania Knitting Mills Corp., 290 Pa. 79, 86, the Supreme Court said: “The authorities in other jurisdictions are in conflict as to the necessity of specially pleading the want of a proper writing to support the guaranty of the debt of another. In some, the defense has been held to be personal, which the defendant may or may not take advantage of, as in the case of the statute of limitations. In Pennsylvania this has not been declared, but it has been held that judgment should be entered for the defendant where the evidence shows the contract not to be legally sustainable. In Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, 223, where a similar question arose under the Sales Act, it was said: ‘The purpose of a statement is to set forth facts which show a claim “enforceable” by action; and it necessarily fails of this purpose unless they are averred.’ ”

The authorities are practically all agreed that in judgments founded on official bonds, bonds of indemnity, appeal bonds, etc., where, by the terms of the bond itself, the surety submits himself to the acts of the principal and to the judgment itself as a legal consequence following within the scope of the suretyship, the surety is bound by a judgment recovered against the principal. And even in this class of bonds, in the case of Masser v. Strickland, 17 S. & R. 354, in which a constable’s bond was involved, Chief Justice Gibson wrote a very forceful dissenting opinion.

The surety contract in this ease clearly does not come within the above class of cases. The decedent did not contract to pay any judgment that might be recovered against the principal. The case most nearly resembling the instant case is that of Giltinan v. Strong, 64 Pa. 242.

In the cited case, the surety obligation was practically identical with the obligation of the decedent, and read as follows: “I hereby become surety for the rent of house in Strawberry Street at $1200 per annum, payable monthly from this date.”

The lower court permitted a judgment against the principal to be admitted in evidence against the surety. The Supreme Court reversed the lower court, and Justice Agnew, in this case, used the following language: “But we think the court erred in holding that the record of the judgment against Maguire was competent evidence against Giltinan. If the liability is direct and primary, it is clear this is so, and if the writing is viewed as a mere undertaking of suretyship, still it was error; Giltinan was no party to that action, had no notice to defend it, and could hot be brought into defense of it by the plaintiff. The plaintiff's remedy against him could be only on .his own promise. A surety may give notice to his principal who owes him this duty to defend him, but it would be a novelty if the principal could call in his surety, who owes no such duty, to defend him. Giltinan was, therefore, in no sense either a party or privy to that action. Under the term parties (says Mr. Greenleaf in his Law of Evidence, paragraph 523), ‘the law includes all who were directly interested in the subject-matter and had a right to make defense or to control the proceeding, and to appeal from the judgment. The right involves also the right to adduce testimony and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause.’ A surety in a separate and independent instrument is no party who could appear and control the separate action against his principal or appeal from the judgment. Nor is there a legal privity. Privity, says Mr. Greenleaf, paragraph 189, denotes mutual or successive relationship to the same right of property. In none of the classes enumerated, as in estate, in blood, and in law, does the case of a surety fall in reference to a creditor’s action. It is the right to represent which creates privity in law as between ancestor and heir, decedent and administrator, etc., but clearly the principal, in an action against himself alone, cannot represent his surety. If he could, then he could bind his surety for an extinguished or paid debt by a confession or a default. The privity of the surety with his principal is in the contract alone and not in the action. For the acts or omissions of the principal to which the surety pledges' himself in his contract, he is bound, and it is only in this respect the principal represents his surety. This is the criterion of the competency of the principal’s declarations or admissions. Where these form a part of the acts or omissions of the principal for which the surety is bound, they constitute portions of the res gestee and may be evidence against the surety. But beyond this line clearly the surety cannot be affected by the acts or admissions of his principal, for he is not represented by him: 1 Green-leaf’s Ev., paragraph 187. The acts or omissions, or admissions of the principal in an action at law against himself, clearly do not represent the- surety in any wise.”

The only possible distinction that might be drawn between the above-cited case and the case under consideration is that in the cited case no notice was given to the surety, whereas in the instant case it might be argued that the surety would have notice, but a careful reading of the above opinion indicates that in this class of cases notice will not change the result. Judge Agnew distinctly uses the language that a surety may give notice to his principal who owes him the duty to defend him, but it would be a novelty if the principal could call in his surety who owes no such duty; that the defendant is in no sense either a party or privy to the action against the principal; that the defendant is a stranger to the cause, and that there is no legal privity. It is difficult to see how a stranger to a cause can be converted into a party by notice and how a legal privity can be created in that manner.

On the other hand, the instant case presents a stronger ease for the defendant than the case of Giltinan v. Strong. The only evidence produced in the suit against the principal in the instant case was evidence which, while competent against the principal, might have been wholly or partly incompetent against the surety. Mrs. Thommen was the only witness produced by the plaintiff in the suit against Thommen’s, Inc., and it is certainly difficult to see how a judgment founded on such testimony alone can be more binding on the defendant in this case than the competent testimony produced against the defendant in the cited case.

In the case of Lockard v. Vare, 230 Pa. 591, it was held: “. . . by the express words of clause (e), § 5, of the Act of 1887, she is not a competent witness, unless the matters to which she would testify occurred between her and the surviving partners. She was called for no such purpose. Her testimony was as to matters occurring in the lifetime of the deceased partner, and he, if living, might have contradicted her. His lips having been closed by death, evenhanded justice requires that her mouth be sealed: Karns et al. v. Tanner, 66 Pa. 297; but as to matters that occurred between her and the surviving partners, both may testify and there will be no inequality between them. Neither can have a vantage ground over the other under the right given them by the statute to testify to matters which occurred between them during the lifetime of the deceased partner.”

The cases cited in the plaintiff’s paper-book are all clearly distinguishable from the case in suit. Holmes v. Frost, 125 Pa. 328, was a suit on an indemnity bond in which the surety undertook to pay any judgment recovered.

The case of Com., to use, v. Fidelity and Deposit Co. of Maryland was a ease involving an Orphans’ Court bond, which comes under the classification of official bonds, bonds of indemnity and bonds to insure faithful performance of duty.

The other cases cited by plaintiff have very little bearing on the question involved in this case, nor are the cases from other jurisdictions very useful to throw any light on the subject, as there is a hopeless conflict of authority between the various jurisdictions on this question, and it is, therefore, necessary to be guided in this matter by the decisions of our own courts.

Order.

And now, to wit, April 23, 1930, judgment non obstante veredicto is directed to be entered in favor of the defendant. Exception to this action of the court is noted for the plaintiff.

Rule for a new trial is discharged.