author: Graff, P. J., Graff, P. J.,

text:
    St. Nicholas Ruthenian Greek Catholic Church v. Kulczycki.
    Sept. 28, 1929.
   Graff, P. J.,

From the testimony introduced upon the trial of this case, we make the following

Findings of fact.

1. Rev. Gregory Kuiczycki is a pastor of the Ruthenian Greek Catholic Church and became rector or pastor of St. Nicholas Ruthenian Greek Catholic Church of Ford City, Pennsylvania, Feb. 1, 1923.

2. He has been the priest or pastor of said Ford City church from Feb. 1, 1923, continuously to the present time.

3. St. Nicholas Ruthenian Greek Catholic Church of Ford City, Pennsylvania, is an unincorporated association and a component part of the Uniat Greek Catholic Church; the Uniat Greek Catholic Church recognizes the Pope as the supreme head of the church and also recognizes the law of the Roman Catholic Church.

4. Under the canon law of the church, the bishop assigns a priest to a particular parish, and exclusive jurisdiction is placed in him to remove such priest for neglect or violation of his parochial duties.

5. The canon law of the church vests the exclusive right of determining whether a priest is performing his pastoral duties and his clerical obligation in the bishop, and the bishop’s jurisdiction and determination of such matters is final and binding upon the priest, the congregation and officers of the congregation, subject only to the right of appeal, if any, to the higher tribunals of the church.

6. When Rev. Gregory C. Kulczycki became priest of the Ford City church, he was notified when he accepted such charge that his salary as priest would be $150 per month.

7. The meaning of said oral agreement relative to salary was that said salary was to be the monthly salary of the priest until changed by mutual agreement or until the priest was legally removed from said parish by proper authority, by his own act or by death.

8. The Ford City church recognized the salary agreement and paid the priest’s salary in full at the rate of $150 per month from Feb. 1, 1923, to June 30, 1926, inclusive.

9. The priest was paid from July 1, 1926, to June 30, 1927, by check, the sum of $110 per month. Said cheeks were accepted by the priest as part payment upon his salary and so endorsed upon the back of the check.

10. The priest received checks in the amount of $80 each, or $83.33 each, from July, 1927, until October, 1928, inclusive, as an attempted payment of his monthly salary. These checks were never cashed or used by the priest, who refused to accept them in payment of his salary.

11. Dissatisfaction arose among certain members of the congregation with the manner in which Rev. Kulczycki performed his pastoral duties, which led to the attempted reduction of his salary in July, 1926, and June, 1927.

12. There is not sufficient evidence to warrant the conclusion that Rev. Gregory C. Kulczycki has willfully injured or destroyed any of the property belonging to the church.

13. A letter was sent to the bishop of the Ruthenian Greek Catholic Church, located at Philadelphia, Pennsylvania, dated July 28, 1927, signed by the officers of the St. Nicholas Church in Ford City, Pennsylvania, requesting the bishop to remove Father Kulczycki and send another priest.

14. During the period from May 25, 1928, to March 26, 1929, Father Ortynsky, the consultor of the bishop at Philadelphia, Pennsylvania, was sent to Ford City to investigate thé conditions in the Ford City church. During this period he made five visits to Ford City and attended the semi-annual meeting of the congregation in June, 1928. The said bishop’s consultor met with the officers of the church and talked with different members of the congregation. At the semi-annual congregational meeting held in June, 1928, the bishop’s consultor transmitted an order from the bishop that the priest should be paid his full salary.

15. The record in writing of a meeting May 25, 1928, at Ford City, Pennsylvania, attended by the bishop’s consultor, the president of the ehurch committee and other officers of the church, shows part of the proceedings at said meeting, as follows:

“Father Ortynsky asked for what reason do they wish a change of the priest? The officers could give no reason. Father Ortynsky said, is your priest a bad man, or does he not fulfill his pastoral duties? And the officers answered, the priest is good, fulfills his priestly obligation. Then Father Ortynsky said, if so, why do you ask the removal of the priest? Answer: Because the people do not want him. Father Ortynsky: Are all the people against Father Kulczycki? The officers: No, only those who do not belong to the church. Father Ortynsky: How is it possible that the parish listens to people who do not belong to the church? Mike Moyta said: Our church is controlled by people who don’t belong to the church. The Ruthenians are good people, only a few Salicians make trouble. Father Ortynsky: Why do you let people have any voice in the congregation who do not belong to the church? The officers answered: They do not attend to the church services, but they pay their dues and they attend the meetings and stir up the people.”

16. The amount due the priest from the congregation up to and including Aug. 31, 1929, is $4699.35, said amount including all arrearages upon monthly salary from July 1, 1926, to Aug. 31, 1929, inclusive, with interest thereon.

17. The evidence does not disclose any failure or neglect on the part of the priest to fulfill any duty imposed upon him by the laws of the church or the orders of the bishop, and does not show that he has done anything contrary to the laws of the church or the orders of the bishop.

Discussion.

This case presents an unfortunate situation of a church quarrel, in which the members of the Ruthenian Greek Catholic Church of Ford City are divided in their support of the priest. It is apparent that a considerable number of the congregation are opposed to Father Kulczycki remaining in charge of the parish as their priest. This matter was brought to the attention of the biship, who ordered a thorough investigation. This church authority refused to comply with the request of certain members of the congregation that Father Kulczycki be removed as priest, and ordered the congregation to pay him the full amount of his salary. Under the law of the Roman Catholic Church, of which the Ford City church is a part, exclusive jurisdiction is vested in the bishop to appoint or remove priests from particular parishes. In matters relating to a church or other voluntary organization, its members are bound by and required to conform to its laws, and the scope and effect thereof are exclusively determined by its appropriate tribunals selected for that purpose: Furmanski et al. v. Iwanowski et ah, 265 Pa. 1.

The civil courts will not review the proceedings of ecclesiastical courts on matters which come within the jurisdiction of the latter: Irvine v. Elliott, 206 Pa. 152.

It is only when ecclesiastical decisions, rules and regulations are in direct opposition to the law, and when rights of property are concerned, that the civil courts will interfere: Krauczunas v. Hoban, 221 Pa. 213.

Some criticism might be advanced as to the manner in which Father Kulczycki performed his pastoral duties, but the final decision in matters of this character rests in the discretion of the bishop.

“It is in the discretion of the bishops of the Roman Catholic Church to decide whether the manner in which a priest performs his official duties, and the nature of his walk and conversation in life are such as to entitle him to support from the church:” Tuigg v. Sheehan, 101 Pa. 363.

The prayer of the petition in this case is, in effect, that Rev. Gregory C. Kulczycki be removed as priest or rector of the St. Nicholas Ruthenian Greek Catholic Church. It is contended by the plaintiff that property rights are involved and, therefore, this court has jurisdiction. We have carefully examined the testimony introduced in this respect, and conclude that it is entirely insufficient to sustain the plaintiff’s contention. There is evidence which would indicate a falling away in the membership of the congregation and a consequent reduction in the amount paid by said congregation for the maintenance of the church. This is a natural conclusion from the dissension in the church. There is some evidence to the effect that Rev. Kulczycki did not properly take care of the church property, but it is not sufficient to warrant any conclusion of a willful destruction of said property. The determination of matters concerning the conduct of the priest, which is not contrary to the law of the land, is vested entirely in ecclesiastical authority. This court has no jurisdiction to interfere in such matters. We, therefore, conclude that the bill filed by the plaintiff in this case should be dismissed, and, accordingly, make the following

Conclusions of law.

1. Canon law of the church of which St. Nicholas Ruthenian Greek Catholic Church of Ford City, Pennsylvania, is a part, provides that the bishop may remove a priest, rector or pastor from a parish for neglect or violation of his parochial duties, and prescribes the terms, conditions and method of such removal, and places the exclusive jurisdiction in such matters in the bishop.

2. The evidence is entirely insufficient to prove that property rights are involved in this case, and, therefore, this court is without jurisdiction.

3. The canon law vests the exclusive right of determining whether a priest or rector is performing his pastoral duties, and determining whether the priest or rector is fulfilling his obligation, in the bishop, and the bishop’s jurisdiction and determination of such matters is final and binding upon the priest, the congregation and the officers of the congregation, subject only to the right of appeal, if any, to the higher tribunals of the church. The power of the bishop in this respect cannot conflict in any manner with the Constitution or laws of the United States or the Constitution or laws of Pennsylvania.

4. The bill in equity must be dismissed.

Decree nisi.

And now, Sept. 28, 1929, this matter came on to be heard and was argued by counsel, and it is ordered, adjudged and decreed as follows:

1. That the bill filed in this case be and is hereby dismissed.

2. That the plaintiff pay the costs of this proceeding.

It is further ordered that this decree be entered nisi, and the prothonotary is directed to enter it as a final decree unless exceptions are filed within fifteen days.

Upon exceptions filed to the foregoing decree, the following opinion was delivered by the court:

Graff, P. J.,

July 5, 1930.

Within the time specified in the decree nisi, exceptions were filed to the findings of fact and conclusions of law as set forth in an opinion heretofore filed. Subsequent thereto, the plaintiff in this case presented a petition to open the decree nisi and let it into a further hearing. The petition averred that the plaintiff would prove that that part of the canon law of the Roman Catholic Church which purported to relate to the appointment and discharge of priests and the government of the congregations does not apply to the St. Nicholas Ruthenian Greek Catholic Church. A hearing was had upon said petition, and the matter now comes before us upon the evidence introduced and the exceptions filed to findings of fact and conclusions of law.

In the opinion heretofore filed it was held that the canon law of the Roman Catholic Church governs the Ruthenian Greek Catholic Church, which is a component part of the Catholic Church under the Uniat Agreement. It was further held that the bishops of the Greek Catholic Church have complete control over the matter of placing and removing priests, and that they have the power of deciding whether the priest is properly performing his duties, in accordance with the laws of the church. The plaintiff contends that the power of hiring and discharging priests in the Greek Catholic Church is vested, in the congregation, and not in the bishops. In the Codex Iwris Canonid, which is the only approved edition of the canon law of the Roman Catholic Church, the first canon is as follows:

“Although in the code of the canon law the discipline of the Oriental Church also is often referred to, nevertheless the code itself refers to the Latin Church only and does not bind the Oriental Church, unless it deals with those matters which from the nature itself of the thing also affect the Oriental Church.”

It is to be noted that the Oriental Church is not excepted from the general application of the canon law where that law deals with those matters which naturally affect the Oriental Church. Canon 218 and canon 219 define the power of the Pope as being supreme and as having full power and jurisdiction over the Universal Church, both in things which pertain to faith and' morals and also in those things which pertain to the discipline and rule of the church scattered throughout the entire world. The Pope appoints the bishops of the Oriental Church as he appoints the bishops of the Latin branch of the church and delegates to them full and ordinary power. The general government of the Catholic Church is a vital part of Catholic philosophy and teaching. Both the Latin and Oriental branches of the church recognize the Pope as their head. The general government of the Oriental Church regulates the existence of the church itself. The canon law of the Roman Catholic Church provides for the government and discipline of the Catholic Church. Such matters, from the nature of themselves, must affect the Oriental Church, and canon 1 does not except the Oriental Church from the general application of the code. However, the decrees of 1914 and 1929, regulating the government of the Oriental Church, provide as follows:

■ “All rectors of the Grseeo-Ruthenian parishes and missions in the United States are removable at the will of the bishops of the Grseeo-Ruthenian rite, but they cannot be removed without grave and just cause. And, further, the bishops shall provide for the living of the priest by assigning a salary to the same, to be fixed according to the proportion conforming with the mass or total amount of all of the receipts of the church.”

These ddcrees are declaratory of the canon law. Under them the bishop has the power to appoint and discharge priests and to fix their salary. We conclude that the power of appointing and discharging priests, as provided by the canon law of the Roman Catholic Church, has complete application to the appointment and discharge of the priest employed by the Greek Catholic Church of Ford City.

The salary contract or agreement was entered into between the priest, Rev. Kulczycki, and the congregation and not actually fixed by the bishop. The plaintiff contends that since a contract was entered into in such manner, the congregation had the right to terminate the same. It is not contended that the salary agreement is void for the reason that the bishop did not fix it. Under the general canon law and the Decrees of 1014 and 1929, the bishop determines the amount of salary to be paid to a particular priest, basing the amount thereof upon the receipts of the particular church. This provision is for the benefit of the priests and enacted to provide for his living. If he sees fit, he may waive the benefit of its provisions. However, in the present case the bishop in effect fixed the amount of the salary when he ordered the congregation to pay the same after a full investigation. By such an order he ratified, confirmed and adopted the salary as fixed by the congregation and the priest with the same effect as if he had originally determined the amount. The bill in equity originally filed in this case in effect prayed for the removal of Rev. Kulczycki as priest of the Ford City congregation. It was averred that property rights were involved, in that the priest was destroying the church property. For reasons fully discussed in the opinion heretofore filed, this contention is without merit. We conclude that the petition filed should be dismissed.

The plaintiff has filed exceptions to the following findings of fact and conclusions of law:

The plaintiff excepts to finding of fact No. 4, which is as follows:

“Under the canon law of the church, the bishop assigns a priest to a particular parish, and exclusive jurisdiction is placed in him to remove such priest for neglect or violation of his parochial duties.”

This finding of fact has been hereinbefore fully discussed, and the exception is without merit.

The plaintiff excepts to finding of fact No. 5, which is as follows:

“The canon law of the church vests the exclusive right of determining whether a priest is performing his pastoral duties and his clerical obligations in the bishop, and the bishop’s jurisdiction and determination of such matters is final and binding upon the priest, the congregation and officers of the congregation, subject only to the right of appeal, if any, to the higher tribunals of the church.”

This finding of fact is fully sustained by the evidence.

The plaintiff excepts to finding of fact No. 7, which is as follows:

“The meaning of said oral agreement relative to salary was that said salary was to be the monthly salary of the priest until changed by mutual agreement or until the priest was legally removed from said parish by proper authority, by his own act or by death.”

The testimony of Rev. Kulczycki and the canon law of the church justify this finding of fact.

The plaintiff excepts to finding of fact No. 9, which is as follows:

“The priest was paid from July 1, 1926, to June 30, 1927, by check, the sum of $110 per month. Said checks were accepted by the priest as part payment upon his salary and. so endorsed upon the back of the check.”

The testimony of Rev. Kulczycki and the checks introduced in evidence justify this finding of fact.

The plaintiff excepts to finding of fact No. 11, which is as follows:

“Dissatisfaction arose among certain members of the congregation with the manner in which Rev. Kulczycki performed his pastoral duties, which led to the attempted reduction of his salary in July, 1926, and June, 1927.”

The testimony of a number of the members of the Ford City church justifies this finding of fact.

The plaintiff excepts to finding of fact No. 12, which is as follows:

“There is not sufficient evidence to warrant the conclusion that Rev. Gregory C. Kulezyeki has willfully injured or destroyed any of the property belonging to the church.”

The evidence fully sustains this finding of fact.

The plaintiff excepts to finding of fact No. 14, which is as follows:

“During the period from May 25, 1928, to March 26, 1929, Father Ortynsky, the consultor of the bishop at Philadelphia, Pennsylvania, was sent to Ford City to investigate the conditions in the Ford City church. During this period he made five visits to Ford City and attended the semi-annual meeting of the congregation in June, 1928. The said bishop’s consultor met with the officers of the church and talked with different members of the congregation. At the semi-annual congregational meeting held in June, 1928, the bishop’s consultor transmitted an order from the bishop that the priest should be paid his full salary.”

The evidence to sustain this finding of fact is practically undisputed.

The plaintiff excepts to finding of fact No. 16, which is as follows:

“The amount due the priest from the congregation, up to and including Aug. 31, 1929, is $4699.35, said amount including all arrearages upon monthly salary from July 1, 1926, to Aug. 31, 1929, inclusive, with interest thereon.”

The evidence justified this finding of fact.

The plaintiff excepts to finding of fact No. 17, which is as follows:

“The evidence does not disclose any failure or neglect on the part of the priest to fulfill any duty imposed upon him by the laws of the church or the orders of the bishop, and does not show that he has done anything contrary to the laws of the church or the orders of the bishop.”

For reasons hereinbefore discussed, this finding of fact is warranted.

The plaintiff excepts to conclusion of law No. 1, which is as follows:

“Canon law of the church of which St. Nicholas Ruthenian Greek Catholic Church of Ford City, Pennsylvania, is a part, provides that the bishop may remove a priest, rector or pastor from a parish for neglect or violation of his parochial duties, and prescribes the terms, conditions and method of such removal, and places the exclusive jurisdiction in such matters in the bishop.”

For the reasons hereinbefore discussed, the exceptions to this conclusion of law is without merit.

The plaintiff excepts to conclusion of law No. 2, which is as follows:

“The evidence is entirely insufficient to prove that property rights are involved in this case, and, therefore, this court is without jurisdiction.”

For reasons heretofore stated in an opinion filed, this exception is without merit.

The plaintiff excepts to conclusion of law No. 3, which is as follows:

“The canon law vests the exclusive right of determining whether á priest or rector is performing his pastoral duties, and determining whether the priest or rector is fulfilling his obligation, in the bishop, and the bishop’s jurisdiction and determination of such matters is final and binding upon the priest, the congregation and the officers of the congregation, subject only to the right of appeal, if any, to the higher tribunals of the church. The power of the bishop in this respect cannot conflict in any manner with the Constitution or laws of the United States or the Constitution or laws of Pennsylvania.”

For the reasons hereinbefore discussed, this exception is without merit.

Order.

And now, July 5, 1930, this matter came on to be heard, and was argued by counsel, and it is ordered, adjudged and decreed as follows:

1. That the exceptions to findings of fact and conclusions of law be and are hereby overruled and dismissed.

2. That the petition to open the decree nisi be and is hereby dismissed.

3. That the bill filed in this case be and is hereby dismissed.

4. That the plaintiff pay the costs of this proceeding.

From Harry C. Golden, Kittannmg, Pa.


source: Caselaw Access Project

author: Hargest, P. J.,

license: Public Domain

text:
    Commonwealth v. The Philadelphia Coca-Cola Bottling Co.

      Philip S. Moyer, Deputy Attorney General, for plaintiff.

      Clark, McCarthy & Wagner, for defendant.
    July 7, 1930.
   Hargest, P. J.,

This case comes before us upon an appeal by the defendant, a corporation of the State of Delaware, doing business in Pennsylvania, from the settlement for tax on capital stock amounting to $429.68, made by the Auditor General and approved by the State Treasurer April 25, 1929. The defendant contends that it is entitled to an exemption on the ground that its busines of bottling a drink called “Coca-Cola” is manufacturing.

The case was submitted to the court June 18, 1929, under a stipulation to dispense with a trial by jury, but the last of the briefs was not filed until April 18, 1930.

Facts.

The facts have been agreed upon by a stipulation filed and it is not necessary to repeat them.

The process used by the defendant is, briefly, as follows: Coca-cola Syrup is purchased in barrels from another corporation which manufactures it. This syrup is then filtered and used in combination with pure filtered water taken from the city mains and carbon dioxide gas is added. The water is cooled to a temperature of 35 degrees so as to absorb the gas more readily. Carbon dioxide gas is purchased in metal drums, and the water is impregnated with the gas by machinery. The bottles are washed and the filling and capping is done by machinery. Each unit of washing, filling and capping is operated independently at an average capacity of approximately 108 bottles per minute. The process in mixing coca-cola syrup and carbonated water, such as is done at a soda fountain for immediate consumption, could not be used in a practical way to obtain the standard coca-cola beverage desired by the defendant because the beverage made at a soda fountain would tend to effervesce and liberate too much carbon dioxide gas before it could be bottled satisfactorily. At the soda fountain the operator uses the same coca-cola syrup, pours out the desired amount into a glass and then pours into the glass carbonated water similar to that used by the defendant company, obtaining a beverage substantially the same in taste, color, character and substance as that bottled by the defendant, the difference being that the coca-cola beverage at the fountain is for immediate use, while that bottled by the defendant is for future consumption.

Discussion.

The defendant is incorporated “to manufacture, buy, sell and deal in carbonated waters, syrups and beverages of all kinds, and particularly to bottle and deal in liquids of all kinds for use as beverages and to conduct a general bottling business.”

The Act of July 22, 1913, P. L. 903, amending section twenty-one of the Act of June 1, 1889, P. L. 420, exempts from taxation only so much of the capital stock of a corporation “as may be invested in any property or business not strictly incident or appurtenant to its . . . manufacturing business ... it being the object of this proviso to relieve from State taxation only so much of the capital stock as is invested purely in the . . . manufacturing plant and business.”

There is nothing to be predicated upon the fact that the charter of this corporation gives it the right “to manufacture” carbonated waters, syrups and beverages. It also gives it the right “to bottle and deal” in them. It is not so much what the charter says as what the corporation actually does that controls: Com. v. Wark Co., 32 Dauph. Co. 286, 293; Com. v. Dyer Quarry Co., 250 Pa. 589; Com. v. Filbert Paving Co., 229 Pa. 231.

We must approach the consideration of this question having in mind the well-settled principles that “language which relieves from taxation is to be strictly construed,” and “where the taxpayer or his property is within the general language of the statute imposing the tax, all exempting provisions are to be strictly construed against the claim for exemption:” Com. v. Sunbeam Water Co., 284 Pa. 180, 183; Com. v. Lack. I. & C. Co., 129 Pa. 346, 356; Callery’s Appeal, 272 Pa. 255, 272; Com. v. Wark Co., supra.

In the case of Com. v. Wark Co., 301 Pa. 150, the Supreme Court, sustaining this court, held that constructing buildings was not manufacturing. Mr. Justice Walling said:

“Courts are not prone to indulge in or to accept unusual or strained or unauthorized interpretations of the terms of a law; and anyone would experience considerable difficulty in adopting, in writing or speech, an unusual meaning of a word long in common and ordinary use, and which use neither the people nor the courts nor legislative bodies have at any time disregarded or changed. ... It is not within the province of a court of law to recognize affirmatively and adopt judicially a new and unusual limitation, extension or modification of the meaning of a word in a statute which is of common usage, inwrought for centuries into our language, to apply it to a matter or situation where neither custom, common sense nor necessity requires or authorizes such application.”

The appellant, notwithstanding the use of scientific methods and complicated machinery, pours a manufactured article, namely; coca-cola syrup, into a bottle and also pours carbonated water into the bottle, upon which it then puts an air-tight cap, by the use of machinery. Has it then done anything except bottle the substance? Does not the word “bottle” fit the process? Is it not the common ordinary word which explains the process? To speak of it as “manufacturing” gives an unusual meaning to this word which, in the language of Mr. Justice Walling, “neither custom, common sense nor necessity requires” to be given to that process.

In Com. v. Glendora Products Co., 297 Pa. 365, and Com. v. Lowry-Rodgers Co., 279 Pa. 361, it was held that roasting coffee is not manufacturing so as to exempt it from taxation, notwithstanding there is a change in color .and chemical composition, a decrease in moisture and an enlargement in size of the product. In Com. v. Sunbeam Water Co., 284 Pa. 180, it is held that distilling water which takes out the impurities by boiling it to the point where it becomes steam and then cooling it back to water and which involves complicated machinery in the process, is not manufacturing.

The use of expensive and complicated machinery is not a determining factor: Com. v. Sunbeam Water Co., supra; Com. v. Glendora Products Co., supra.

The defendant contends that it takes a material not fit for use, to wit, coca-cola syrup, and produces a product that is. But this was also done in Com. v. Dyer Quarry Co., 250 Pa. 589. Nor does the addition of the chemical, carbon dioxide gas, determine that the process is manufacturing.

In Com. v. Weiland Packing Co., 292 Pa. 447, it is held that pickling of meat, smoking of hams and bacon is not manufacturing. In this case chemicals were applied to the product.

Citations might be extended, but applying the principles of these cases the conclusion is clear that the defendant’s process is not manufacturing in the ordinary sense of that term in which the legislature used it. The coca-cola syrup was manufactured; the defendant did little more than dilute the coca-cola syrup with water, to which carbon dioxide gas was added. It neither manufactured the syrup nor the carbon dioxide gas. It mingled those two manufactured products and added water to them; then preserved the product by having it sealed in bottles. If this process is manufacturing, then the clerk at every soda fountain which produces the same product is engaged in manufacturing every time he draws a drink for a customer. No such use of the word was intended by the legislature.

For these reasons we conclude that the Commonwealth is entitled to recover:

Amount of settlement.................................. $429.68
Interest from June 24, 1929, being 60 days after date of settlement........................................ 26.71
$456.39
Attorney General’s-commission, 5%.................... 22.82
Total....................................... $479.21

Now, July 7, 1930, judgment is hereby directed to be entered in favor of the Commonwealth and against the defendant, The Philadelphia Coca-Cola Bottling Company, for $479.21, unless exceptions be filed within the time limited by law.

From Homer L. Kreider, Harrisburg, Pa.


author: Sinkleu, J.,

text:
    Banks’s Estate.

      Fitehugh Lee Styles, for exceptions; Sadie T. M. Alexander, contra.
    March 13, 1931.
   Sinkleu, J.,

The facts developed by the evidence produced at the hearing before Gest, J., on May 14, 1930, and at the further hearing held before him on December 10, 1930, are fully set forth in his opinions of June 24, 1930, and January 21, 1931. We concur in his conclusions and have only to emphasize one incident in connection with the carbon copy of the will, to which Pollard signed the name of the testator. Pollard, the scrivener, Mamie Cunningham and Estelle Irwin, the attesting witnesses, all testified at the further hearing that the attesting witnesses signed their names only once, namely, on the original copy upon which Mamie Cunningham signed the testator's name. Since the will was executed by the testator making his mark, it was necessary, under the Pennsylvania statutes relating to the execution of wills, that it be attested by two witnesses. The carbon copy was not attested by two witnesses, was not a duplicate original and had no testamentary effect. There was no reason for Pollard to retain the copy, and no inferences are to be drawn from his failure to do so.

The Hearing Judge has found that the will was properly executed, under the authorities cited by him, and we agree with his conclusions of fact and law in this respect. We agree also with his conclusion as to the testamentary capacity of the testator, and as to the absence of undue influence. To sustain the charge of undue influence, as he has correctly stated, it must be shown that the testator’s mind was under its control at the time and in the very act of making his will: Kustus v. Hager, 269 Pa. 103; Aggas v. Munnell, 302 Pa. 78.

In the case last cited, the relation between the testator and his daughter, who was made the principal beneficiary, and certain other facts, are not dissimilar from the present case.

The findings of the Hearing Judge, both as to fact and law, are within the scope of his authority as defined in Tetlow’s Estate, 269 Pa. 486.

The exceptions to the opinion and supplemental opinion are dismissed and the decree dismissing the appeal is confirmed.

Lamorelle, P. J., and Henderson, J., did not sit.


author: Rossiter, P. J.,

text:
    Olson et al. v. Goetz et al.

      English', Quinn, Leemhuis & Tayntor, for plaintiffs.

      Gunnison, Fish, Gifford & Chapin, for defendants.
    July 14, 1930.
   Rossiter, P. J.,

This is an action by the plaintiffs against the defendants for breach of the condition of a bond filed by Mrs. Blanche Cochran Goetz to well and truly and faithfully in all things execute and perform the duties of the office of notary public according to the several acts of assembly relating thereto.

The defendants filed an affidavit of defense in the nature of a demurrer and for cause of such demurrer say that the statement does not allege any breach of the duties required by the various acts of assembly relating to notaries public; that the statement does not aver a violation of the obligation of the bond given; and that the statement is generally irregular, indefinite and insufficient in law.

The original notaries public act, viz., the Act of March 5, 1791, 3 Sm. Laws, 6, by section four, provides:

“That the said notaries, and every of them, shall have the power to receive the proof or acknowledgment of all instruments of writing relating to commerce or navigation, such as bills of sale, bottomries, mortgages, and hypothecations of ships or vessels, charter parties of affreightment, letters of attorney, and such other writings, as have been usually proved or acknowledged before notaries within this commonwealth, and also to make declarations, and testify the truth thereof under their seals of office, concerning all matters by them done in virtue of their respective offices.”

It is also provided by section eight that a notary shall take and subscribe an oath or affirmation “that he shall and will well and faithfully perform the duties of his office, and also that he shall and will support the constitution of this commonwealth; and also shall give bond, himself in a sum not exceeding six hundred pounds, and two sureties in a sum not exceeding three hundred pounds, each, conditioned for the faithful performance of the duties of his office, the amount of the said bonds to be determined on by the governor, which obligation shall be recorded in the rolls-office, or office for recording of deeds, within the respective counties where he may reside, and may be sued by any party or parties injured, in like manner, and with the like effect, as bonds given by sheriffs and coroners for the faithful execution of their respective offices.”

By the Act of August 10, 1864, P. L. 962, it is provided by section two “That each notary public, of this commonwealth, shall have power to take depositions and affidavits, to take and receive the acknowledgment, or proof, of all deeds, conveyances, mortgages, or other instruments of writing, touching, or concerning, any lands, tenements, or hereditaments, situate, lying and being, in any part of this state. ...”

By the Act of March 28, 1803, 4 Sm. Laws, 45, section 4, it is provided: “and whenever the commonwealth, or any individual or individuals shall be aggrieved by the misconduct of any Sheriff or Coroner, it shall and may be lawful, as often as the case may require, to institute actions of debt of scire facias upon such recognizance against such Sheriff or Coroner, and their sureties, their heirs, executors or administrators, or actions of debt upon such obligations against such Sheriff or Coroner and their sureties, their heirs, executors or administrators, and if upon such suits it shall be proved what damage hath been sustained, and a verdict shall be thereupon given, execution shall issue for so much only as shall be found by the said verdict and judgment with costs, which suits may be instituted and the like proceedings be thereupon had, as often as damage shall be so as aforesaid sustained.”

The duties of a notary are, therefore, prescribed and the method of recovering damages for a wrongful act of a notary is provided. The question, then, arises: are the allegations in the statement sufficient to charge the notary with a violation of her prescribed duties? We are clearly of the opinion that they are. The allegations in the statement in substance are that the notary took the acknowledgment of two ignorant, illiterate persons to a deed when they thought and she knew and had informed them that they were acknowledging a mortgage; that she appended her official seal and certification that they had acknowledged a deed; and that she, herself, had substituted the deed which she certified had been acknowledged, in place of the morgtage which they thought they were acknowledging. In other words, the notary certified that these people had done just exactly what they had not done and had no intention of doing. If these allegations are true,. clearly this was a violation of her official duty, for the notary did not “testify the truth thereof,” and, therefore, did not well and truly and faithfully, in all things, execute and perform the duties of her office as notary public, as she certified to the acknowledgment of a paper that never was acknowledged, nor intended to be, and which she knew was not the paper that she pretended it was. If these allegations in the statement are true, and for the purpose of this opinion they are to be taken as true, the breach of the bond is so palpably plain that it is not necessary to cite any authority to support that contention as she and her bondsman would be not only liable civilly but she would be criminally culpable.

The affidavit of defense in the nature of a demurrer is, therefore, now, July 14, 1930, overruled and the defendant is given fifteen days within which to file an affidavit of defense.

From Otto Herbst, Erie, Pa.


author: Fleming, P. J.,

text:
    Commonwealth v. Moore.

      John G. Love, district attorney, for Commonwealth.

      N. B. Spangler and Ivan Walker, for defendant.
    July 8, 1930.
   Fleming, P. J.,

The defendant is charged with a violation of section 1016 of the Vehicle Code of 1929. This section makes it unlawful for the driver or operator of any vehicle to fail to come to a full stop before entering a through highway, when a “Thru Traffic Stop” sign has been erected in accordance with the provisions of section 1112 of such act. Section 1112 empowers the Secretary of Highways, 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 jurisdiction, 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 inches in height, and the letters of the words “Thru" and “Traffic” to be of the form and size approved by the Secretary of Highways, notifying operators of vehicles to come to a full stop before entering or crossing such designated highway. The section makes an exception as to the hours when a traffic signal is actually in operation or where a peace officer is actually on duty directing traffic. This exception, however, has no bearing upon the instant case, as there is no traffic signal at the intersection and no peace officer was on duty directing traffic at the time the alleged violation occurred.

On March 15, 1930, the defendant was operating his automobile, in an easterly direction, along the highway between Lemont and Pleasant Gap, in this county. It is alleged that the defendant failed to come to a full stop, before entering Route 53, at Pleasant Gap, an intersection where stop signs have been erected in accordance with section 1112.

Patrolman Webber, of the State Highway Patrol, was standing near the intersection, but was not engaged in directing traffic. According to his testimony, he was “checking” traffic. This is explained as being synonymous to enforcing the automobile laws generally. The defendant was taken into custody and taken to an office of J. L. Tressel, justice of the peace, nearby. It appears that Justice Tressel maintains his principal office on East Bishop Street, Bellefonte, Pa., in Spring Township, and that he also maintains an additional office in the village of Pleasant Gap, near the intersection where the alleged offense occurred. This latter office is also in Spring Township. When taken to the office of the justice, the defendant was charged with a violation of section 1016 and requested by the justice to pay a fine and costs, amounting to $8.50. This the defendant refused to pay, stating that he would waive a hearing and enter bail for court. Defendant states that he was prepared to enter bail, and introduced into evidence a letter of attorney from the United States Fidelity and Guaranty Company, empowering the defendant to enter security in matters of the exact nature of the instant case. This was refused by the justice and the final result was that defendant left the office of the justice without either paying a fine or entering bail, and continued on his way.

On March 24, 1930, an information was made before Justice Tressel by Patrolman Webber, alleging the violation of section 1016 on March 15, 1930, as above stated. A copy of such information and notice to appear was forwarded to and received by the defendant.

This is admitted by the defendant. Subsequently, defendant entered his own recognizance, in the sum of $18.80, for his appearance in this court. It appears that the warrant issued was never served upon defendant, but that defendant waived hearing and entered security for his appearance here, as above stated.

Counsel for the defendant has moved the discharge of the defendant for the following reasons:

1. That there is no evidence here that when the first information was made on March 15, 1930, a written notice was given to the defendant, as required by the Vehicle Code.

2. That, as to the second information made on March 24, 1930, there is no evidence that a notice was given to the defendant, as inquired by the Vehicle Code.

3. That even if such notice had been given, it was invalid and illegal, as the act requires such notice to be given within seven days.

4. That the burden is upon the Commonwealth to prove that the thru stop sign was official; that the highway approached had been designated by the proper authority as a thru highway.

5. That the location of the stop sign is improper, being across the highway to be entered upon, the proper location being on the same side on which the vehicle is approaching.

6. That the sign on the side on which the vehicle was approaching is on the right and not in compliance with section 1112.

7. That the justice before whom the action was brought maintains an office on East Bishop Street, Bellefonte, Pa., in Spring Township, and an additional office at Pleasant Gap, in Spring Township, where the information in the instant case was made.

We shall approach consideration of these objections in our own order, disposing of those of lesser merit first and considering at greater length' those which, we feel, are of greater importance to the motoring public.

We shall take judicial notice that the markers erected at the intersection where the violation is alleged to have been committed were and are in the size and form, as to lettering and other requirements, as specified by section 1112 of the Vehicle Code, and that they are erected at proper places at the intersection. We shall also take judicial notice that the highway upon whieh the defendant was about to enter has been officially designated by the Department of Highways as a through highway.

When a matter is a matter of common and general knowledge, does not depend upon uncertain testimony, and has attained sufficient notoriety as to make it safe and proper to assume its existence without proof, courts will take judicial notice: 15 R. C. L. 1057, § 2. Judicial notice is based upon very obvious reasons of convenience and expediency, operating to save the time, trouble and expense which would be lost in establishing in the ordinary way facts which do not admit of contradiction: 15 R. C. L. 1056, § 1.

i The signs erected, with which we are concerned in the instant case, have been repeatedly viewed by us and are, beyond contradiction, the signs used by the Department of Highways throughout the Commonwealth, and the highway upon which the defendant was about to enter is a through highway for travel from central Pennsylvania and country lying to the north and west thereof to the eastward. That it has been" so designated by the Department of Highways is clearly shown by the erection of similar stop signs at every intersection along its entire distance between Bellefonte and Lewistown, where it meets the Lakes to Sea Highway and the William Penn Highway. To require the Commonwealth to subpoena officials and records of the Department of Highways would serve no good purpose herein. We, therefore, find no merit in reasons 4, 5 and 6 advanced by the defendant as grounds for his discharge.

Objection one requires no answer. The testimony shows that the justice of the peace and the patrolman saw what appeared to be error as to notice, and, after counseling with the district attorney, abandoned such original proceeding and attempted to begin a new one. This brings us, however, to the consideration of what appears to be an apparent conflict between section 1202 of the Vehicle Code of 1929 and sections 1203 and 1211 of the same act.

Section 1202 is entitled “Proceedings by Information and Warrant.” This section provides that summary proceedings under the act, or any violation of a local ordinance, rule or regulation enacted by the authority of such act, shall be commenced by the filing of an information; that within seven days after such information has been made, the magistrate shall send by registered mail to the person charged, at the address shown on the records of the department, a notice in writing of the filing of such information, together with a copy thereof and a notice to appear within ten days of the date of the written notice. If the person to whom such notice is directed fails to appear within ten days, a warrant may be issued and served in a lawful manner. It is evident that the legislative intent was to permit those persons alleged to have been guilty of minor offenses against the Vehicle Code to go on their way and to adjust their obligations to society for such violations without being detained and made to answer instanter such accusations.

Section 1211, entitled “Limitation of Authority for State Highway Patrolmen,” provides that such patrolmen are declared to be peace officers, thus broadening their powers to embrace violations other than those against the Vehicle or Tractor Codes, and are given police power and authority to arrest on view, when in uniform, without writ, rule, order or process, any person violating any of the provisions of this act.

Do the words “any of the provisions of this act” so nullify the provisions prescribed in section 1202 as to enable the patrolmen to arrest on view, regardless as to whether the alleged offense is punishable by summary conviction or not? We are firmly of the opinion that they do not and were not so intended by the legislature. In section 1201 it is provided that all informations charging violations of “any of the provisions of.this act, except in cases where the offense is designated a felony or misdemeanor,” must be brought within fifteen days after the commission of the alleged offense. Arrests on view necessitate the immediate filing of informations if the constitutional rights of the defendant are to be preserved. Arrests on view, therefore, may be made only in cases where the offense is designated as a misdemeanor or a felony. This is further made clear by section 1203 (a) of the Vehicle Code, which specifically provides that peace officers, such as state highway patrolmen as constituted by section 1211, may arrest on view any person violating “any of the provisions of this act,” when in uniform and displaying a badge or other sign of authority, “where the offense is designated a felony or a misdemeanor, or in cases causing or contributing to an accident resulting in injury or death to any person.” The patrolman, in the instant case, was clearly without authority in arresting the defendant on view on the night of March 15, 1930, for an alleged violation of section 1016. Such being a matter punishable by summary conviction, his only course was pursuant to the procedure outlined in section 1202.

The complaints voiced in objections two and three have been waived by the appearance of the defendant and his entry of bail for court. The record fails to disclose the giving of notice prescribed by section 1202 (a) of the Vehicle Code, but defendant waived such as well as the issuance of a warrant by his entry of bail.

Defendant complains that the justice before whom he was taken and the action was brought maintains an office on East Bishop Street, Bellefonte, Pa. — not within the borough limits, but within the Township of Spring and just beyond such borough limits — and that he also maintains an additional office at Pleasant Gap, in Spring Township, where the information in this case was made. This complaint carries the inference that it is illegal for the justice tó maintain an additional office at Pleasant Gap, and, such being an illegal office, that defendant was not “brought before the nearest available magistrate,” as required by section 1201 of the Vehicle Code. Is this contention correct? Can a justice of the peace maintain an additional office or offices within the territorial limits of the jurisdiction for which such justice has been commissioned?

Inasmuch as this question appears never to have arisen under the exact facts of the instant case, and inasmuch as the particular justice was elected by the electorate of Spring Township at large, and has been commissioned by the Governor for said township at large, and not for any particular precinct thereof, one would be inclined to hold that the additional office in question, being within such township, would be legal. On first consideration of the question, the further fact of the convenience afforded to the inhabitants residing in the vicinity of the additional office would tend to confirm such finding, the general purpose of the existence of justices of the peace to be the bringing of justice in minor matters nearer to the homes of the people: 16 R. C. L. 330, § 2.

But, after careful consideration, there appear to be other and more substantial matters to be considered. This office “is connected with the judicial department of the state government, and a justice of the peace is, to a certain extent, a judicial officer, for most of his powers and duties are of a judicial nature and concern the administration of justice:” 16 R. C. L. 330, § 2, and cases cited. Thus viewing the fact, the office of a justice of the peace is in fact a court. “To constitute a court there must be a place appointed by law for the administration of justice, and courts must be held at the place provided by law, except for the determination of actions, special proceedings, and other matters not requiring a jury, when they may, by consent of the parties therein, be held at some other place:” 7 R. C. L. 992, § 21, and cases cited. It could not be reasonably contended that a justice of the peace could set up an additional office or court exclusively for the trial of automobile violations, authorized to be disposed of by him in a summary manner, nor for the dispensing of criminal jurisdiction alone. If such were to be permitted to be established, it must be for the administration of justice in all matters properly administered by him.

If additional or branch offices are maintained by justices of the peace, confusion is certain to arise in civil matters. Defendants are not personally conducted to the place for hearing in civil matters, but respond to a summons to appear at a future date. With a justice maintaining several offices, it is certain to occur that defendants will mistake the exact office to which they have been summoned and appear at the wrong' one, only to have judgment rendered against them at the right one by default. There are certain to follow many requests for appeals nunc pro tunc and for general relief from the confusion caused thereby. Or, in lieu of honest mistakes, designing persons can readily fabricate such excuses for their non-appearance and clog courts of record with their complaints. Furthermore, a plaintiff residing or being in the vicinity of the branch office and using the same can summon a defendant residing or being in the vicinity of the principal office to appear at such branch office for a hearing; or, still further, one can purposely institute his suit in such manner as to cause gross inconvenience and injustice to the defendant, and without cause other than to annoy. Under such possible conditions, the question of convenience is wholly erased and the existence of such branch office would defeat entirely the reason for the continuance of the office of justice of the peace, to wit, the bringing of justice in minor matters nearer to the homes of the people.

'But an additional reason, more patent in the matter of summary convictions for automobile violations, is that such branch offices, if allowed to be set up, will clearly defeat the legislative intent of section 1201 of the Vehicle Code. The clear purpose in requiring any alleged offender who is to be tried summarily to be taken before the nearest available magistrate was to defeat the nefarious practices of “fining squires,” who, forgetful of the true intent and meaning of automobile regulation, and with the aid and assistance of like forgetful constables and other peace officers, sought to use their offices solely for their personal gain at the expense of an oppressed motoring public. To permit a justice of the peace to make himself “the nearest available magistrate” by sprinkling branch offices at advantageous points throughout his bailiwick is clearly contrary to the intent of the Vehicle Code of 1929. As a judicial officer, he must maintain his court; that is to say, the place where he hears and decides controverted questions of fact, as well as of law, at one designated and permanent location within his jurisdiction. We see no harm in his administering oaths, taking acknowledgments and performing other ministerial acts in a branch office, but when assuming the role of a judicial officer, and when requiring persons to appear before him, either criminally or civilly, for the determination of issues of law or fact, such appearances must be had, and hearing conducted, at one point definitely and permanently established. We would have a right to summon jurors, witnesses and litigants and try cases in Millheim, State College, Philipsburg, and elsewhere within the county, were the rule to be otherwise. Certainly some would be convenienced greatly were we empowered so to do, but, on the other hand, it is likewise as certain that a great number would also be inconvenienced. “It is usually made the duty of each county in a state to provide at the county seat a courthouse, and to keep the same in repair, and even in the absence of statute it is generally agreed that county, circuit, and district and other courts held for the county must sit at such county seat, and that they have no authority or jurisdiction to convene for the trial of actions or proceeding involving issues of fact at any other place in the county except by consent of the parties, or except where expressly so authorized by statute:” 7 R. C. L. 998, § 22, and cases cited. The rights of a justice of the peace are no greater than ours. It is rarely, if at all, that he is called upon to decide a controversy which does not involve an issue of fact, and especially in determining the guilt or innocence of one summarily charged with the violation of the motor vehicle laws. The defendant, in the instant case, did not consent to the justice assuming jurisdiction of his case at his branch office at Pleasant Gap, nor is there any statute expressly authorizing the justice to do so. That a statute is required, or at least intended by the legislature to be required, to enable a justice of the peace to open a branch office is evidenced by the passage of the Act of April 3, 1899, P. L. 27, authorizing justices of the peace to establish branch offices at fairs, etc. We are of the opinion that the patrolman, in the instant case, did not comply with section 1201 of the Vehicle Code of 1929, and that the proceedings were not had before the nearest available magistrate.

For the reasons noted above, we are of the opinion that the defendant was not taken before the nearest available justice of the peace, and must, therefore, be discharged.

And now, July 8, 1930, the defendant is discharged. Costs to be paid by the County of Centre. Prom S. D. Gettig, Bellefonte, Pa.


author: Lloyd, J.,

text:
    Kelly’s Estate.

      Joseph S. Hollister, for appellants.

      Joseph H. Deppen and H. W. Cummings, for respondents.
    June 30, 1930.
   Lloyd, J.,

James E. Kelly died December 5, 1929, at an age which does not definitely appear, but which is inferable from the testimony to be some sixty odd years, leaving a will executed December 2, 1929. He was survived by a brother, Stephen Kelly, and a sister, Mrs. Bridget Connaghan, to each of whom he had bequeathed the sum of $1. The entire balance of the estate, the value of which is not shown, he bequeathed to Annie Bums, his first cousin, whom he also nominated as executrix. The will was duly probated on December 6, 1929, and letters testamentary issued to the' said Annie Burns. On December 23rd following, Bridget Connaghan and Stephen Kelly appealed from the action of the register of wills in admitting to probate the said will, and on December 30th secured a citation directed to the said Annie Burns to show cause why their said appeal should not be sustained and an issue directed to the court of common pleas to try by jury (a) whether or not at the time of the execution of said writing the said decedent was a person of sound mind; (b) whether or not the said writing was procured by undue influence, duress and constraint practiced upon the said decedent by Annie Burns and others; and (c) whether or not the said writing is the will of the said decedent.

' The execution of the will was duly proven by the subscribing witnesses. The proponent had thus presented a prima facie case, and a legal presumption of competency arose, the burden of disproving which in a positive manner rested upon the contestants. For “the law presumes every one of full age competent to make a will, of sufficient mental capacity to do the act; therefore, he who alleges to the contrary must prove it to the satisfaction of the jury:” Landis v. Landis, 1 Grant, 248. “Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative he must establish, not in .a doubtful, but in a positive manner:” Grubbs v. McDonald, 91 Pa. 236. See, also, Wertheimer’s Estate, 286 Pa. 155.

At the time when the will was made and for several months previous thereto the testator lived in the home of John and Annie Burns. “He was suffering from an infection of the bones — a pus infection of the bones of the-right foot and also a toxic condition of the body.” Physically the disease was progressively destructive; but there is no evidence that testator’s disease in any way affected his mentality. In fact, until the date of the execution of this will his competency was not questioned. But the contestants contend that on that day, by reason of his said condition and the accompanying pain, the testator’s mind was so much impaired that he was not then competent to make the will. Mrs. Annie Sullivan testified that she visited the sick room for about three-quarters of an hour; that she had not known the testator previously thereto; that “he did not seem to know anybody was in the room;” that he did not speak to Annie and “just moaned as though he was in pain.” The testimony of Dorothy Connaghan, the daughter of the contestant, covers the same period of time as that of Mrs. Sullivan and does not differ materially therefrom. Mr. Edward Campbell, one of the subscribing witnesses, testified that he had never seen the testator before the time when he witnessed the will; that testator did not speak at the time and that his face was turned away from the scrivener when he raised his hand to make the mark. The following excerpt from his testimony explains the reason for his presence at the signing of the will, the condition of the testator and the manner in which the will was executed:

“Mr. Bums came up and asked me to witness a will; he said he wanted me to go down to the house there; he says he is pretty sick; he says he might live a day and he might live a week; I went down; Mr. Deppen came in with the will when I did; Mr. Kelly, I thought, was in a pretty weakened condition, so Mr. Deppen told him to put his hand to the pen; he was lying on the side like that (indicating), and he laid over this way on his side and spoke or noticed nobody. . . .
“No, sir; he raised it up like that (indicating) and touched it to Mr. Deppen and he gave him the pen and then laid it down; he laid on his side; I didn’t say anything and he didn’t say anything more that I heard; I ain’t positive; I thought he made a will a couple of months before; I stayed there about fifteen or twenty minutes.”

He also testified that, “Under oath, I would say he was very, very weak; a weakened condition.” In response to a question relating to the mental condition of the testator, he answered, “I don’t know whether he did or not; I don’t know what is his mental condition.” Doubtless the contestants rely most strongly upon the testimony of Doctor Jacoby, who visited the testator for about ten or fifteen minutes at or about 10 o’clock in the morning of the day in question. He testified that testator was then in a “depressed mental condition;” his “mind clouded;” his condition “very bad;” he was in a “somewhat stuporous condition;” “there was a time that his mind was not as clear, not as wide awake concerning this as before.” He then expressed the opinion that the testator was not “in a fit condition to know what he was doing.” The doctor’s subsequent testimony not only greatly injures but utterly destroys his opinion as to the mental capacity of the testator to transact business. Responding to questions propounded under cross-examination, he answered that his conversation with the testator was limited to matters relating to the disease and that on the day in question he aroused the testator, who recognized him and answered all of his inquiries understanding^.

The foregoing presentation of contestants’ testimony relating to the testamentary capacity of the testator, although condensed, embraces all the material facts and is as full and complete as the evidence warrants. It discloses no mental decay, brain deterioration, delusions, hallucinations, mental disease or incapacity to transact business prior to or on December 2, 1929. The whole of it may be taken as true, and yet it exhibits nothing inconsistent with testamentary capacity, which embraces more than physical weakness, depressed mental condition, a temporary stupor, a refusal or failure to react to external surroundings or an indifference to social amenities. Neither age, nor sickness, nor extreme distress, nor debility of body, nor other physical infirmity will affect the capacity to make a will, unless the affliction has so impaired the mentality of the testator as to render him incapable of knowing the nature and effect of the act he was engaged in; a full knowledge of the property to be passed; an understanding of the disposition he wished to make of it by will ’and the persons he desired to participate in his bounty. Testamentary capacity is to be determined by soundness of mind and not of body. Under the evidence in the present case, the relevant rules by which it is to be tested are thus stated:

“In considering whether or not testator knew and understood what he was doing when he made his will, we must start, therefore, not only with the fact that he had mental capacity, but also that whatever weakness of mind existed was not shown to have resulted in any foolish or unbusinesslike act; and this is an important consideration, for ‘as a general proposition less capacity is sufficient to make a valid will than to transact ordinary business:’ Thompson v. Kyner, 65 Pa. 368; Guarantee Trust and Safe Deposit Co. v. Waller, 240 Pa. 575;” Kustus v. Hager, 269 Pa. 103, 107.

“A testator’s ‘memory may be very imperfect; it may be greatly impaired by age or disease. He may not be able at all times to recollect the names, the persons or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. . . . The question is not so much what was the degree of memory possessed by the testator, as this — Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it, and the objects of his bounty? To sum up the whole in the most simple and intelligent form — Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged at the time he executed the will:’ Wilson v. Mitchell, 101 Pa. 495, 502-3:” Snyder’s Estate, 279 Pa. 63, 73.

Viewed in the light of these decisions, the contestants’ evidence is wholly insufficient to establish testamentary incapacity, either before or at the time of the execution of the will. This conclusion brings us to a consideration of the charge of undue influence. There is no direct evidence to establish it. The contestants still have the laboring oar. The proof must be direct, clear and convincing: Logan’s Estate, 195 Pa. 282. It must show fraud, threats or misrepresentations, undue flattery, or physical or moral coercion, so as to destroy the testator’s free agency operating as a present constraint at the making of the will — such as to subjugate the mind of the testator to the will of the person operating upon it: Tawney v. Long, 76 Pa. 106. “It is only when fraud, deceit or such domination as subjects the mind of the decedent, is shown, that undue influence can be said to appear:” Leisey’s Estate, 280 Pa. 538. “To sustain the charge of undue influence, contestants had to show that testator’s mind was under its control ‘at the time and in the very act of making his will: ’ ” Tetlow’s Estate, 269 Pa. 486, 496. “When a will is attacked on the ground of undue influence, ‘it is necessary to bear in mind the meaning of the term; ... as a legal phrase it is used as denoting . . . something violative of legal duty. . . . The word “influence” does not refer to any and every line of conduct capable of disposing in one’s favor a fully and self-directing mind, but to a control acquired over another which virtually destroys his free agency. ... In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind, . . . fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery^ or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of the will:’ ” Phillips’s Estate, 244 Pa. 35, 43.

The testimony on behalf of the contestants does not even approximate these requirements. William J. Neiswender, who was a patient at the Fountain Springs Hospital in the month of August, testified that he then had a conversation with the testator, who said: “Bill, I want you to do me a favor, he says, and I said all right, I will if I can; what is it? Well, he says, it’s this: These people are enticing me to leave here and the agreement is the same with them as I had with the hospital, you know, for taking care of me, he says; when I do leave here I feel it is my estate more than myself they are after; I may be influenced to change the will, but he says I will never do so if I am in sound mind; I will never execute another will, he said; I want the will that I made; I want that to stand; I want that to be final to provide for my sister and my brother; he says, if I ever make another will I will not be in my right mind and under heavy influence.” Thomas Coriga, also a patient at the said hospital in July and the early part of August, testified that during a conversation with the testator in reference to the testator’s brother Stephen, the testator said: “I won’t forget him when I go, he says; I am not going to be enticed to leave a will so he will have to go out on the ways of the world with his one arm.” And, further, while speaking of the proponent’s family, said “they want to take him home.”

These declarations, if accepted, are mere ex parte expressions of the testator and insufficient to affect the validity of the will. Attributing to them the utmost construction favorable to the contestants, they amount to nothing more than a mere purpose on the part of the proponent to ingratiate herself into the affections of the testator — an indirect method of solicitation ineffective to invalidate a devise: Miller v. Miller, 3 S. & R. 267. But beyond this these declarations are too remote from the time of the execution of the will and are not so connected with other facts and circumstances indicating circumvention or fraud in the procurement of the will as to make them part of the res gestee, and are, therefore, not evidence: Tawney v. Long, 76 Pa. 106, 116.

Substituting the name of the proponent in the present case for the name of the proponent in Johnson’s Estate, 159 Pa. 630, 633, the language of the court as there used is directly applicable to the present situation. As thus modified, it would then read: That in point of fact the case is absolutely destitute of proof of a single act of influence, undue or otherwise, on the part of Mrs. Burns. There is no testimony to show that she ever, at any time or in any circumstances, even so much as asked him to make a provision in her favor. The will was written by the scrivener at the instance and request of the testator without the slightest proof that Mrs. Burns had anything to do with it or that she knew what was intended to be done.

We are not called upon to search for, and neither does the law require that the testator assign any reasons for his bequests; yet, if such were needed to supply any deficiencies in the present case, they are to be abundantly found in the will itself. The testimony upon this branch of contestants’ case is so lamentably weak as to preclude the necessity for any reference to proponent’s testimony.

We conclude that contestants’ evidence, even when looked at separately, would not support a verdict against the will which this court could in eon■seienee permit to stand. It is, therefore, our duty to refuse the issue: Tet-low’s Estate, supra.

And now, June 30, 1930, the contestants’ appeal is hereby discharged and an issue devisavit vel non is refused.

An exception is noted and bill sealed for the contestants.

From C. M. Clement, Sunbury, Pa.


author: Schnader, Attorney General,

text:
    Appearance of the Governor Before Senate Investigating Committee.
    February 28, 1931.
   Schnader, Attorney General,

I have your request to be advised whether in my opinion your appearance as a witness before the committee constituted by resolution of the Senate to investigate the Public Service Commission would establish an objectionable precedent.

As I understand the resolution creating the Senate committee, its primary purpose is to investigate certain charges which you have made against the Public Service Commission of the Commonwealth of Pennsylvania as the basis for recommending to the General Assembly that the commission be abolished.

In conducting its investigation the committee has thus far been calling witnesses who have been examined and cross-examined by members of the committee and by the committee’s counsel, one of whom was selected by the committee of its own accord and the other of whom is an employee of your office loaned to the committee at its request. Presumptively, the committee in inviting you to appear contemplated that you should be examined and cross-examined like other witnesses who have appeared before it.

The Constitution of this Commonwealth in article four, section two, provides that “The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed; . . .”

This constitutional expression was discussed and construed by the Supreme Court in Hartranft’s Appeal, 85 Pa. 433. At page 444, Mr. Justice Gordon, speaking for the court, said:

“. . . It is scarcely conceivable that a man could be more completely invested with the supreme power and dignity of a free people. Observe, the supreme executive power is vested in the Governor and he is charged with the faithful execution of the laws, and for the accomplishment of this purpose he is made commander-in-chief of the army, navy and militia of the state. Who then shall assume the power of the people and call this magistrate to an account for that which he has done in discharge of his constitutional duties?

In this case the Supreme Court held that neither the Governor, the Secretary of the Commonwealth, nor the Adjutant General was subject to attachment for refusing to obey a subpcena ordering him to appear before the Grand Jury of Allegheny County.

At page 445 of its opinion, the Supreme Court said:

“. . . We had better at the outstart recognize the fact, that the executive department is a co-ordinate branch of the government, with power to judge what should or should not be done, within its own department, and what of its own doings and communications should or should not be kept secret, and that with it, in the exercise, of these constitutional powers, the courts have no more right to interfere, than has the executive, under like conditions, to interfere with the courts. . .

The line of demarcation between the functions of the legislative and executive branches of the government is just as clear as is the distinction between the functions of the judicial and executive branches.

In an earlier ease, De Chastellux v. Fairchild, 15 Pa. 18, Chief Justice Gibson said, at page 20:

“. . . The functions of the several parts of the government are thoroughly separated, and distinctly assigned to the principal branches of it, the legislature, the executive, and the judiciary, which, within their respective departments, are equal and co-ordinate. Each derives its authority, mediately or immediately, from the people; and each is responsible, mediately or immediately, to the people for the exercise of it. When either shall have usurped the powers of one or both of its fellows, then will have been effected a revolution, not in the form of the government, but in its action. . . .”
Article four, section eleven, of the Constitution provides that the Governor . . shall, from time to time, give to the General Assembly information of the state of the Commonwealth, and recommend to their consideration such measures as he may judge expedient.”

There is no power conferred upon the General Assembly by the Constitution at any time or under any circumstances to call the Governor before it for the purpose of interrogating him as to the reasons underlying any action which he has taken; and, particularly, the Constitution does not authorize the General Assembly to call upon the Governor to justify his reasons for recommending to their consideration such measures as he may judge expedient.

In all the history of Pennsylvania, I have been unable to find any instance in 'which a Governor submitted himself to examination before either the General Assembly or any committee or subcommittee thereof. Clearly, your examination by the Senate committee at this time would establish an unparalleled precedent.

I cannot escape the conclusion that it would be a serious mistake for any Governor by such a precedent to break down the time-honored distinction between the functions of the legislative and executive departments.

There cannot be any objection to the submission by you in writing of such information as you care to furnish, laying before the Senate committee the ■reasons which moved you to recommend to the General Assembly that the Public Service Commission be abolished. You may also, without establishing a dangerous precedent, voluntarily appear in person before the committee to read your statement.

However, to submit yourself to examination by the committee or by counsel for the committee, or anyone who has appeared before it, would, in my judgment, be an entirely different matter, which it is impossible to justify. As Chief Justice Gibson indicated, the Governor for the performance of his official duties is answerable not to the General Assembly or any committee thereof, but to the people of this Commonwealth. It would be a mistake for you to attempt to answer to anyone else for the recommendations which you have made to the General Assembly.

Accordingly, I am firmly of the opinion that while he may appear before a committee to present information or make recommendations, the Governor cannot properly submit to examination as a witness before the General Assembly or any committee thereof.

Prom C. P. Addams, Harrisburg, Pa.


author: Hughes, J.,

text:
    Mehaffey v. Manufacturers Light and Heat Company.

      R. W. Knox, for plaintiff.

      Weil, Christy & Weil and Marriner, Wiley & Wiley, for defendant.
    June 9, 1930.
   Hughes, J.,

By an agreement dated June 8, 1886, Robert Mehaffey granted a right of way for a pipe line and a telephone and telegraph line to the Western Pennsylvania Gas Company, which was duly assigned to the Manufacturers Light and Heat Company. The consideration for the right of way was $1 and free gas to the dwelling house on the farm. Free gas was furnished as provided in the contract until May 15, 1922, when the gas company refused to supply the free gas, as a result of which the plaintiff, the heir of the grantor, elected, as provided in the contract, to declare a forfeiture of the grant and all rights and privileges accompanying it or incident to it, and brings this action of ejectment. To the action so brought the defendant has demurred, claiming: (1) The praecipe does not show a cause of action in ejectment, but, on the contrary, shows ejectment does not lie; (2) the declaration does not state a cause of action in ejectment, but, on the contrary, shows that ejectment does not lie.

The praecipe in ejectment is as follows:

“Issue summons in ejectment in the above case for the premises whereof the following is a description to wit:
“A strip of land [right of way] one hundred and ninety-five rods in length and ten feet in width to lay, maintain and operate a pipe or pipes for the transportation and conveyance of the substance known as Natural Gas and construct, maintain and operate a telegraph and telephone line on said right of way through, over, upon and under the farm in Independence Township, Washington County, Pennsylvania, which farm contains 356 Acres more or less, and is joined by lands of J. A. Welch, on the East by lands of Robert Y. Meloy, on the South by lands of John Smith, on the West by lands of Ellis Jones, etc., with right, privileges, conditions, etc., as set forth in Deed Book 427, page 424, in the Recorder’s Office for Washington County, Pennsylvania.”

The declaration follows the language of the praecipe. In other words, the claim of the defendant is that the property involved, being termed a “right of way,” ejectment is not the proper remedy. The term “right of way” in this agreement is used in a'popular and not in a technical sense. It is conceded that ejectment will not lie for the recovery of an incorporeal hereditament, but because the property here involved, in common usage, is termed a “right of way,” it does not follow that it is an incorporeal hereditament. We recognize the principle laid down in the line of cases following Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173, holding that a license to operate for oil and gas is an incorporeal hereditament for which ejectment is not the proper remedy, and also the line of burial lot cases following Gormley v. Boyce, 93 Pa. Superior Ct. 547, holding that ejectment will not lie for a grant of that type.

The grant here described is a right of way, but gives the grantee the right “to lay, maintain and operate a pipe or pipes for the transportation and conveyance of the substance known as natural gas, and construct, maintain and operate a telegraph and telephone line on said right of way, through, over, upon and under the farm, . . .” and it is these premises to which the prseeipe and declaration refer. In Hancock v. McAvoy, 151 Pa. 460, it is said, “Ejectment will only lie for things whereof possession may be delivered by the sheriff.” Could there be anything more corporeal than a strip of land occupied by pipe lines, telegraph poles and wires? Here the plaintiff is seeking recovery of the premises so occupied. Ejectment will lie to recover possession of the soil, subject to either a public or private easement over it: Tillmes v. Marsh, 67 Pa. 507; Goodtitle v. Alkers, 1 Barb. 133; Cooper v. Smith, 9 S. & R. 26. The owner of the fee can recover the land subject to the servitude, and the fact that the defendant in an action of ejectment has an easement or right in the nature of an easement in the land sought to be recovered does not bar the plaintiff’s right of recovery: 9 R. C. L. 837, § 11.

And now, June 9, 1930, the demurrer is overruled and the defendant is directed to file its answer seo. reg.

Prom Harry D. Hamilton, Washington, Pa.


author: Glass, J.,

text:
    Mayer v. Yellow Cab Company.

      Harry Kaufman and Sidney H. Mandel, for plaintiff.
    S'. Regen Ginsburg and M. R. Marston, for defendant.
    March 7, 1931.
   Glass, J.,

This is an action to recover for the loss of hand-baggage. The case was first tried ex parte by a brother judge without a jury, and a finding made by him for the plaintiff in the sum of $766. A new trial was subsequently granted and the case was later tried by a judge without a jury, and a finding made for the plaintiff in the sum of $743. The matter is now before us on a motion for a new trial and for judgment for the defendant non obstante veredicto. The questions raised by the defendant are as follows;

(1) Was there sufficient evidence to indicate the ownership of the vehicle in question; (2) was there any evidence of negligence on the part of the defendant; (3) was not the plaintiff guilty of contributory negligence; (4) was not the finding clearly excessive?

These questions we shall take up in their order. Considering the testimony in the light most favorable to the plaintiff, in accordance with the familiar rule that all the evidence and proper inferences therefrom favorable to the plaintiff must be taken as true, and all unfavorable to him rejected (Hunter v. Pope, 289 Pa. 560; Frank v. Reading Co., 297 Pa. 233), the trial judge could reasonably have found these facts: On July 22, 1929, at about 9 o’clock in the morning, the plaintiff, together with a friend, Max Kornfeld, who was later a witness for the plaintiff in the case, left a ferry boat at the foot of Chestnut Street, in the City of Philadelphia, and came to the curb at the entrance to the Reading Railway ferries for the purpose of getting a taxicab. They were hailed by a starter of the defendant company who was stationed there, and one of the defendant’s cabs came up and the chauffeur in charge thereof took the plaintiff’s handbag and placed it in the compartment alongside of the seat in the front of the cab. The plaintiff then invited a Mr. Conn and his wife to go along with them. They all entered the cab and were driven to the Bankers Trust Building at Juniper and Walnut Streets, where Mr. and Mrs. Conn alighted, and the cab was then driven to the Philadelphia Record Building at Broad and Wood Streets, where the plaintiff and Mr. Kornfeld alighted. Upon leaving the cab, the plaintiff proceeded into the building and Mr. Kornfeld stopped to pay the fare. After paying it, the chauffeur handed him a white slip which had on it the name “Yellow Cab,” and he followed the plaintiff to the building. As the plaintiff reached the elevator in said building, he turned to Mr. Kornfeld and asked him if he had the bag, and, upon receiving an answer in the negative, they both returned to the street in search of the taxicab, but it had driven off and the handbag was not there. The plaintiff immediately reported the loss to the lost and found department of the defendant company, but the bag and its contents were never returned to him.

The plaintiff and his witness Kornfeld were both positive and testified with ■ absolute certainty to the identity of the cab as a Yellow Cab of the defendant company. The plaintiff testified, further, that he used such Yellow Cabs two or three times a day. The baggage in question consisted of a handbag containing articles of men’s wearing apparel and jewelry.

The defendant company endeavored by its testimony to show that there was no record of any such trip by any of its taxicabs from the Reading Railway Perries to Broad and Wood Streets at or about the time in question, and that there was no such bag turned in to the lost and found department of the company on that day or the following day. There was no testimony offered by the defendant that the bag in question was either delivered to the plaintiff or to the other passenger in the cab at the time when they alighted therefrom, or that it was placed by the chauffeur on the curb alongside of the cab and its presence there called to the attention of the plaintiff or his companion.

A careful review of all the evidence leads us to the conclusion that there was sufficient evidence to indicate the ownership of the vehicle in question, and that the trial judge was justified in finding that the cab involved was a Yellow Cab, the property of the defendant company. The court saw the witnesses and observed their demeanor on the witness stand, and it was for him to attach such credence to their testimony as he thought it merited. We cannot substitute our judgment for that of the trial judge, who made a finding favorable to the plaintiff: White v. Sixteenth and Locust Street Realty Co., 80 Pa. Superior Ct. 49.

As to the negligence of the defendant: The defendant’s theory of the case is that there was no negligence, because at the time of the loss in question the defendant carrier was not an insurer, but a mere warehouseman, and as such liable only for ordinary negligence, which must be proven in a regular way; that the journey being ended, the carrier became a warehouseman because the plaintiff did not look for his bag until after the lapse of a minute and a half; the inference being that it was more than a reasonable time for so doing. With that view we cannot agree. The facts of the case do not lend themselves to the application of such a theory. However, in that class of cases wherein it has been held that the relationship of warehouseman existed, recovery was not permitted because it appeared therein that the baggage was left in the care and custody of the warehouseman for an unreasonable length of time.

In the case of Moyer v. Penna. R. R. Co., 31 Pa. Superior Ct. 559, the court says:

“ ‘After goods have been delivered by a common carrier at depot, the owner or consignee has a reasonable time within which to remove them, during which the liability of the carrier as an insurer continues, but after the expiration of such reasonable time, the liability of the carrier becomes modified, and it is only bound to exercise ordinary care to secure safety of the goods. The liability is that of a bailee for hire and grows out of the original contract.’ ”

And in Sheehan v. American Railway Express Co., 91 Pa. Superior Ct. 71, Keller, J., says:

“The liability of the carrier continues until the consignee of the freight, or the passenger, as the case may be, has had reasonable time to call for and take away his goods or baggage. But where the carrier is obligated to make delivery, its liability as carrier continues until it delivers the goods or offers to deliver them at the place of delivery and is unable to make delivery through no fault of its own. If unable to make delivery at the place specified in the contract its liability thereafter is that of a warehouseman and not a common carrier; just as the liability of a carrier for a freight shipment or a passenger’s baggage, after the expiration of a reasonable time for the consignee or passenger to call and receive it, is that of a warehouseman.”

And it has been held that the neglect of an owner to call for his baggage within a reasonable time changes the character of the liability, but does not terminate it: Matson v. Railroad Co., 76 N. Y. 381; Burnell v. Railroad Co., 45 N. Y. 184; Shoe Co. v. Hardin, 77 W. Va. 611.

Thus it is apparent, even under the defendant’s theory of the case, that if the plaintiff sought the baggage within a reasonable time after he missed it, the relationship of the carrier as an insurer of the baggage still continued, and it was not necessary for the plaintiff to prove the negligence in the way indicated by the defendant. The testimony as to the reasonableness of the time within which the plaintiff looked for his missing baggage was uncontradicted. It, therefore, became a question of law for the court; and even if it had been contradicted and would have been a question of fact for the fact-finding judge, he could justifiably have found that a reasonable time had not elapsed, because the testimony indicated that the length of time consumed was the time it would take for one to walk from the curb to the entrance to an elevator in the front of a building and back again, so that, even, upon the defendant’s own theory, the plaintiff was entitled to a recovery.

We find that the trial judge made a proper finding. The defendant is a common carrier; it operates taxicabs on the public streets.

“Taxicabs are now so generally in use that they are included in the class of common carriers. The name is a coined one to describe a conveyance similar to a hackney carriage, operated by electric or steam power, and held for public hire at designated places: . . .” Donnelly v. Phila. & Reading Ry. Co., 53 Pa. Superior Ct. 78, 82.

The chauffeur of the taxicab was the servant of the carrier: Donnelly v. Phila. & Reading Ry. Co., supra. The plaintiff was a passenger: Berkebile v. Johnstown Traction Co., 255 Pa. 310; and what was taken by the chauffeur from the plaintiff, to wit, the handbag with its contents, was baggage: Kaplan v. Director General of Railroads, 78 Pa. Superior Ct. 195, 199, citing Bullard v. D., L. & W. R. R. Co., 21 Pa. Superior Ct. 583, 586, in which the court said:

“ ‘Baggage,’ is defined as ‘such articles of necessary or personal convenience as are usually carried by passengers for their personal use.’ ”

And in Kast v. Phila. & Reading Ry. Co., 28 Pa. Superior Ct. 107, it' is said that baggage must be such articles as are understood to be of “personal convenience” or necessity, and such as are usually carried by passengers for personal use.

From the time that the chauffeur or the servant of the defendant company took the handbag from the plaintiff and placed it in the taxicab and the plaintiff entered it, the defendant carrier became liable for the said baggage as insurer until the redelivery by it or its servant to the plaintiff. In 3 Hutchinson on Carriers (3rd ed.), § 1241, par. 678, it is said:

“It is now too well established to be controverted that in the carriage of the passenger’s baggage the carrier incurs the full responsibility of the common carrier of goods and becomes an insurer of its safety against every accident which is not the act of God or of the public enemy or the fault of the passenger himself.”

See McGill v. Rowand, 3 Pa. 451. In Bullard v. D., L. & W. R. R. Co., supra (page 586):

“The rule is well settled that the liability of a carrier for a passenger’s baggage, which has been entrusted to its care, is that of an insurer: . . . Jacobs v. Central R. R. Co. of New Jersey, 19 Pa. Superior Ct. 13.”

In the instant case the evidence indicates that there was a total default in delivery of or accounting for the baggage, although demand therefor was made by the plaintiff. There being no explanation with respect to the loss of the goods or the nondelivery thereof, the plaintiff established a prima facie case of negligence. In Verner v. Sweitzer, 32 Pa. 208, 214, the court said:

“. . . and no proof or even allegation made of a reason for the non-delivery of the other, according to the doctrine fully recognised and affirmed in the cases last cited, they are subject to the imputation, that it is either yet in their possession, or has been embezzled by their agents or servants. The fact of non-delivery, under the circumstances proved in the case, is prima facie evidence, at least, of want of ordinary care. And such, is said per Savage, C. J., in Beardslee v. Richardson, 11 Wend. 25, would be the rule, even when the bailment is gratuitous on the part of the bailee, or for the sole advantage of the bailor.” To the same effect was Fairfax v. N. Y. C. & Hudson River Ry. Co., 67 N. Y. 11; Hasbrouck v. N. Y. C. & H. R. Ry. Co., 202 N. Y. 363.

Attention is called to another principle of law which might be invoked here and which holds that for the high liability of insurer by a carrier to exist, it must appear that the passenger surrendered complete and exclusive possession, custody and control of the baggage to the carrier. In Burnett v. Riter, 276 S. W. 347, 349, the court says: “Carriers of passengers are common carriers with respect to the baggage of their passengers, and, under the general rule, the liability of a carrier for baggage entrusted to its care is the same as that of a carrier of goods — that of an insurer: 4 Elliott on Railroads (3rd ed.), § 2506; 3 Hutchinson on Carriers, par. 1240; Lusk v. Bloch, 66 Okla. 171, 168 P. 430, L. R. A. 1918 C., 109.” In the instant case the baggage in question was under the exclusive possession and control of the carrier. It had been taken from the plaintiff by a servant of the defendant and kept by him and was under his control during the entire journey. It was necessary for him to have returned it to the plaintiff at the destination. This was not done, and the plaintiff was, therefore, entitled to recover. See Hasbrouck v. N. Y C. & H. R. Ry. Co., supra.

As to the plaintiff’s contributory negligence, little need be said. There is nothing in the testimony which indicates any contributory negligence on the part of the plaintiff. He did what an ordinarily careful and prudent person under like circumstances would have done. The trial judge, sitting as a jury, found that there was no contributory negligence, for which there is ample justification.

As to the excessiveness of the finding: A careful review of the evidence discloses that the finding was predicated upon the credible testimony produced at the trial. The trial judge did not find for the plaintiff in the amount claimed in his statement of claim, but apparently allowed for the depreciation of some of the articles contained in the handbag. There was competent testimony as to their value. In Lloyd v. Haugh, 223 Pa. 148, 157, the court said:

“. . . the just rule of damages is the actual value of the thing destroyed ■ [in the instant case lost] to him who owns it, taking into account its cost, the practicability and expense of replacing it, and such other considerations as in the particular ease affect its value to the owner:” Sedgwick on Damages, § 251.

After a careful consideration of the case, it appearing that the trial judge committed no errors in his rulings on evidence or in his findings, the motions for a new trial and for judgment for the defendant non.obstante veredicto are accordingly dismissed.


author: Henderson, J.,

text:
    Taylor’s Estate.

      William W. Smithers, for exceptant.

      William B. Newgeon, Samuel J. Houston and J. Hamilton Cheston, contra.
    March 20, 1931.
   Henderson, J.,

A careful review of the record and of the briefs submitted leads us to the conclusion that the Hearing Judge has correctly disposed of the unusual questions submitted to him, and for the reasons set out in his adjudication, the exceptions are dismissed, the adjudication is confirmed absolutely, and the record is remitted to the register for further proceedings in accordance with the adjudication.

Van Dusen, J., did not sit.