author: Holland, P. J.,

text:
    Richter’s Estate.

      Irvin H. Campbell and Samuel G. Stem, for accountant.

      Franklin L. Wright and Frank A. Moorshead, contra.
    May 15, 1928.
   Holland, P. J.,

Paul F. Richter died on Jan. 15, 1926, having made his last will and testament bearing date Jan. 31, 1923, duly probated Jan. 22, 1926, on which the present letters were granted to the accountant which was appointed sole executor, testamentary trustee and guardian of testator’s minor son, Paul Berkley Richter.

At the time of his death, the testator was possessed of personal estate of the inventory value of $72,763.91. He also owned real estate, being the premises referred to in the will, No. 738 South Latches Lane, Merion, this county, which the executor sold and realized $34,065.31.

The account was filed May 7, 1927, showing the following balances for distribution: Principal of personal estate, $51,088.68, composed of the unconverted investment securities set forth on page 14 of the account carried at $59,019.33; inventory value of jewelry, $60.25, or an overdraft of principal of $7990.90; proceeds of real estate, $32,983.95, composed of purchase-money mortgage on No. 738 South Latches Lane, $21,000, and cash; and income $4472.06.

The claims of Dr. S. W. Sappington in the sum of $500, of Dr. Carroll H. Haines in the sum of $1250, of Dr. Edward’ G. Muhly in the sum of $550, and Dr. Leon T. Ashcraft in the sum of $2500, all for medical and surgical service to the decedent in his last illness, were presented at the audit. They were not admitted and proof was required. Testimony was taken in behalf of these claims.

The uncontradicted testimony seems to establish that decedent, at the inception of his last illness, consulted Dr. Haines. His advice was sought, not with the view of having him treat decedent, as he was a nose and throat specialist, but rather for guidance to those specialists within the purview of whose specialty the particular malady came with which decedent was then suffering. Dr. Haines had, some time previous to his last illness, operated upon and treated decedent for a nose and throat affliction, from which contact the acquaintance had sprung up between them. As was stated in the testimony, Dr. Haines was brought into the case more as a friend and guide than professionally, although it appears that he visited him and kept conversant with his condition.

Dr. Haines put him under the care of Dr. Ashcraft, who is a specialist in genito-urinary diseases and a surgeon. Decedent was taken to Hahnemann Hospital by Dr. Haines and the latter made all arrangements for his stay there. He was admitted to the hospital Dec. 16, 1925, and Dr. Ashcraft examined him Dec. 17, 1925. On the evening of Dec. 19, 1925, in the presence of Mildred K. Barber, the private nurse, Dr. Palen and Anna Johnson, another nurse, decedent expressed appreciation to Dr. Haines for his services and assured him he would pay him for his services, past and future. Decedent was operated upon on the night of Dec. 19, 1925, for the removal of a stone in the right kidney. The operation was performed by Dr. Ashcraft, assisted by Dr. Benson. Dr. Haines and Dr. Campbell were present, the latter also assisting.

Very soon after this operation the patient developed pneumonia and Dr. Muhly was called in Dec. 21, 1925, he being a diagnostician and a specialist in chest conditions. Some time after this operation, Dr. Sappington was called into consultation as to blood transfusion. He is the pathologist at Hahnemann Hospital, and has charge of the laboratory. He also is a specialist in blood transfusion. There were four blood transfusions given the patient by Dr. Sappington.

On Dec. 31, 1925, the patient’s right kidney was removed. Dr. Ashcraft performed the operation, assisted by Dr. Benson. From Dec. 17, 1925, to Jan. 15, 1926, the date of decedent’s death, Dr. Ashcraft made daily visits to see the patient, making two, three and even four visits on some days. Dr. Ashcraft occasionally dressed the wounds of the patient, but this was usually attendfed to by Dr. Benson. Dr. Haines treated the ears of the patient and was in daily attendance, watching the chart and his general condition and keeping in touch with Dr. Ashcraft and the other physicians. Dr. Haines’s charge is principally on account of loss caused by his absence from his office.

The charge made by Dr. Sappington is for the four blood transfusions, for vaccine injections, consulting visits every morning, taking blood counts and for laboratory tests. It does not include fees paid “donors” of blood, they having been paid by the hospital. He obtained the “donors,” however.

It is admitted that all the claimants who actually furnished medical and surgical service are of the first rank in the profession in their respective specialties, that they rendered their services with the highest skill and employed the latest and best methods known in the art of medicine and surgery in the light of the degree of development to which that art has attained, and that they all labored heroically to save decedent’s life.

It is admitted that claimants do not base their claims on any specific contract between themselves and decedent, but that the claim of each is in the nature of a quantum meruit. The question, therefore, is as to how much each deserves or merits for his respective services.

The claimants called other physicians and surgeons who were experts in the same profession and who testified that the respective claims were reasonable and fair. This evidence was competent. Persons engaged in the same line of work as a claimant may be called as an expert on questions relating to the value of such work and may state whether or not certain charges are reasonable: Thompson v. Boyle, 85 Pa. 477; Worden v. Connell, 196 Pa. 281; Walton’s Estate, 16 Phila. 867. But, as was stated in Walton’s Estate, supra: “The opinions of experts as to the value of the services need not be implicitly followed. While opinions of this character may aid, they cannot control in considering a claim.”

Their opinions will be considered along with the other elements recognized in the law which determine the propriety of physicians’ charges. We doubt, however, whether this opinion testimony is of much help to a court passing upon physicians’ claims. Certainly, it is not as valuable as it would be in a case where the subject under consideration is a commodity or service having a recognizable current market value, such as merchandise or carpenter’s wages. These witnesses may be quite truthful and sincere when they say that the charges made in this case were “fair and reasonable” or were the usual charges by men of the claimants’ standing for the services rendered. But we know by the very nature of a physician’s service that it is almost impossible to tell what is a usual or customary charge. Different charges are made by different physicians for the same service. Different charges are made by the same physician to different people according to their financial condition.

These witnesses express it as their opinion that under all the circumstances the charges are “fair and reasonable.” But as to what is “fair and reasonable” is for the ultimate judgment of the court. Their opinion as witnesses cannot go beyond what the usual or customary charge is, and, as"'we have pointed out, though their testimony is not unreliable, it is not convincing, nor do we see that it aids us much.

The apparent truth is that there is no market or current value for medical or surgical services as there is for other services or for articles of property. We doubt indeed whether a physician’s services can be measured on a monetary’basis at all. If a skillful surgeon performs an operation and admittedly saves a human life, how can that service be gauged; in money? If the man whose life was saved had a million dollars, it would not be too great a price for the saving of that which to him is priceless. Yet the dictates of good sense tell us it would be unreasonable to award, and no surgeon would think of demanding, more than a relatively very small part of his million for even so great a service. 'On the other hand, if an equally skillful surgeon operates on a poor person and does not receive or even demand1 a cent, and there are thousands of such cases, it being of such common knowledge that we are bound to take judicial notice of it, does it mean that the service in saving the life of the less fortunate person is valueless? Who would brave the scorn of an enlightened age to answer in the affirmative?

Who can have the intuitive wisdom to put a price on human life, appraise the relief of human, suffering, or estimate the reward for heroic rescue from the ravages of disease? Judge Ashman, in Mortimer’s Estate, 13 Dist. R. 51, in arriving at the conclusion that a physician may fairly demand a maximum and a minimum rate of pay, just as the circumstances of his patient shall seem to indicate will be proper, says: “Where it (the service) saves a human life, its value is inestimable, for it is as true now as it was in the days of Job that a man will give all that he has for his life. With somewhat of unanimity the best rhetoricians from Isocrates to Ingersoll have agreed with the inspired patriarch that human life, whether of high or low degree, is equally sacred, and every sane man and every court in Christendom admits the truth of the proposition. No flight of rhetoric, however, can escape the plain fact that life has a pecuniary value of variable quantity, greater, for instance, in the case of the millionaire than in that of the day laborer. . . .”

While we agree with this conclusion, concerning which we will hereafter comment, we cannot agree with the theory upon which it was arrived at. The court in that case, it will be observed, based its decision upon the relative value of the service to a person of 'wealth and to a person of humble station.

It is true that it is a well-recognized principle of law that life and health in a sense have an ascertainable monetary value when the one is taken or the other is injured by a tortfeasor. In the one case it is a compensation to a person or persons designated in law for what they naturally would have received, owing to their relation to the decedent, had his life not been taken; in the other case, it is a compensation to him for what his natural powers and endowments would have earned for him had his health not been injured. In either case, it is the valuation, not of the life or health, but rather of the productivity of the life or health. We see a distinction between this and the attempt to value life or health itself on a monetary basis. This latter we hold to be an impossibility. We must seek other rules to determine the reasonableness of a physician’s or surgeon’s fee.

We recognize the principle in Mortimer’s Estate, supra,, to the effect that a physician or surgeon may charge different amounts for the same service, depending upon the relative circumstances of his patient, and must in every case give the best service he is capable of. Upon the same principle, where the claim is against the estate of a decedent for service rendered the decedent in his lifetime, the size of the estate may be considered in determining the reasonableness of the fee: McCann’s Estate, 11 Dist. R. 244.

The decisive factor, therefore, is not the value of the service, but rather what the claimant deserves and what the patient or his estate ought to pay.

Through generations of development of the science of medicine and surgery and of the art of their practice, the law has come to recognize a special class of professionals whose gifts are to the race as a whole and whose benefactions are so vital that the lowly and the mighty, the rich and the poor, the intelligent and the ignorant, the cultured and the uncouth, are inherently entitled to them in equal degree.

Assuming, as we have above maintained, that these gifts and benefactions by their very nature cannot be valued upon a monetary basis, it follows that the race as a whole owes this class not only a decent living, but a living on a reasonably high plane. They necessarily are people of education and refinement and are entitled to an existence in keeping with the natural requirements as to environment and association of such a class. In distributing their maintenance, therefore, upon the race as a whole, those who can must pay, and in proportion to their substance. They have not the same opportunities as others of holding out for a price, nor dare they refuse even the penniless. Where others make discoveries of industrial processes or invent devices for human needs, they can have them patented and reap the exclusive benefits from them. But these scientists in many cases spend the energy of a lifetime in research and experimentation, seeking methods and devices to combat disease and suffering. When they make a discovery, after years of incessant and tireless labor, they do not secrete it, but, on the contrary, broadcast it to the world.

The rules, therefore, which a court must apply to ascertain whether in the first place a physician or surgeon is entitled to a fee, and in the second place the reasonable amount thereof, seem to be:

1. He must give the best service he is capable of.

2. The service must meet the usual standards in view of the degree of development that the science has attained at the time of rendering it.

3. How much does the claimant deserve, which depends upon (a,) his standing in the profession; (b) the degree of difficulty of the service; (c) the quantity of the service; (d) the amount others of the same standing in the profession charge for the same service under similar circumstances.

4. What is the patient able to pay, or, if the claim is against an estate, what relative or proportionate amount should an estate of that particular size pay?

Applying these rules to Dr. Ashcraft’s claim, we can pass the first and second with little comment. Certainly, he gave decedent his very best service and met all the standards of modem surgery. As to the third, the testimony shows, and there is no doubt, that he is an eminent surgeon and among those at the head of the profession. The removal of a stone in a kidney and the removal of a kidney are two of the most difficult operations in surgery and can only be attempted by an exceptional surgeon after years of training and experience. As to the quantity of the service, not only did he perform the operations, but was in daily attendance upon the patient, occasionally making visits consuming long periods of time. There is testimony that his charge is not unusual among other surgeons of equal standing for the same service under similar circumstances. The application of the fourth rule has given us the most difficulty.

We have heretofore indicated, a person who has no money, property or means gets the medical or surgical service without paying anything. If he is able to pay, though poor, he must pay what he can according to his means and considering the number of his dependents. If his life is saved by the treatment and his health restored, having paid what he could, after getting back to work, he is released to his labors to continue to maintain himself and his dependents. By the same rule, when one of his dependents receives the treatment, he must pay what, he can. What such a person can pay is likely to be less than the minimum that the physician or surgeon deserves, as measured by the first three rules. If the amount that the person is able to pay for himself or his dependents is more than this minimum, he must pay the minimum, plus the fair and reasonable amount that he should pay in proportion to his income or means.

When the claim is against a decedent’s estate, the claimant is entitled to so much of the minimum fee that he deserves under the first three rules as the amount of the gross estate warrants, and if the gross estate is sufficiently large, he is entitled to this minimum, plus an amount in accordance with the size thereof. Where there is a substantial balance, this may also be taken into consideration in fixing the fee. We also hold that the court may consider the classes of beneficiaries entitled to the balance, their relation to the decedent, the degree in which they are dependent upon their inheritance, if natural dependents of decedent, and their financial responsibility.

The gross amount of this estate, consisting of $73,433.89 principal personalty and $34,065.31 proceeds of realty, as shown by the account, plus $5254.55 surcharges, is almost $113,000. The net amount of the estate, consisting of $51,088.68, balance principal personalty, $32,983.95, balance proceeds of real estate, as shown by the account, plus $5254.55 surcharges, less the claim of Albert O. Richter, which has been allowed, is about $87,000. Applying the fourth rule in connection with the other three rules, we are of the opinion that, considering the gross and net amounts of this estate, $2000 is a fair and reasonable fee for Dr. Ashcraft’s services. We decline to allow interest upon it, however, as we have made this feature of the claim a substantive consideration, and, therefore, allow it in the sum of $2000 only, the principal amount thereof.

Applying these rules similarly to the claims of Dr. Sappington and Dr. Muhly, we are of the opinion that they should be allowed in full for $500 and $550, respectively, but without interest, for the same reason given in the consideration of Dr. Ashcraft’s claim. These men are of high standing in their respective specialties, gave much time and close attention to the case, and Dr. Sappington’s work was of a highly technical nature. The evidence seems to indicate that these claimants were brought into the case without first consulting the decedent, but it is apparent that at that time his condition was so desperate that he could not be consulted. Where a patient is unable to be consulted on account of mental condition or serious physical condition and some member of his family cannot be consulted in his place, the law implies an authority in the attendant physician to act on behalf of the patient according to the physician’s best judgment, and if, under such circumstances, he engages the services of a consulting physician, the patient or his estate becomes liable to pay a reasonable sum for his service: Sherman’s Estate, 19 Phila. 109.

The claim of Dr. Haines rests upon an entirely different basis from that of any one of the other three disputed claims. While he did do some work as a physician, such as watch the chart and the general condition of the patient and act as a co-ordinating agent among the other physicians and surgeons, it is admitted that he interested himself so closely in the case principally as a friend of the decedent. The fact that the patient was suffering from a kidney condition and its resulting complications, while Dr. Haines is a specialist on the ear, eye, nose and throat, demonstrates in itself the degree of his usefulness in the case as a physician.

According to Mildred K. Barber, the nurse, “he was there (at the hospital) every day and most all day, and at night.” Dr. Muhly in his testimony speaks of relieving him on one or two occasions at night so that he could get some sleep. His vigil seems to have been incessant during the entire period of decedent’s illness of about a month. This, of course, interfered to some extent with his practice at his office.

This relation of friendship between the decedent and the claimant, as clearly proven by the claimant himself, would ordinarily tend to negative the implication that he should receive compensation for his service. It was held in Moffett’s Estate, 11 Phila. 78, “where a physician attends his brother, such service as he renders on account of his special interest in the patient by virtue of his relation to him cannot be made the basis of pecuniary compensation. The most he is entitled to is for professional visits made and the number of operations performed by him at the usual rates.” It was held in Walton’s Estate, 16 Phila. 867, where the patient is related to the physician, it is a question of fact for the court as to which visits are professional and which on account of the relation. It was also held in Trites’s Estate, 14 Phila. 248, that relationship is a strong fact as evidence that no fee was to be charged and very slight circumstances in addition thereto are required to repel the idea of obligation to pay.

We are of the opinion that the same principle applies, though in a less degree, where the relationship is that of friendship instead of that of blood.

But the evidence shows that the decedent desired his friend, the claimant, to manage the whole affair and to stay with him and see him through the ordeal. It also indicated that he wished and intended his gratitude to be expressed in pecuniary compensation. Mildred K. Barber testified that “he said he would leave everything to him. He wanted1 him to do everything that he thought fit and that he would make it right with him, fix it up with him when he got well.”

The claimant should, therefore, be paid. This leads us to the question of the amount that should be allowed. One of the items of the claim is for $200, for attending the two operations. This must be stricken out at the outset. The claimant did nothing at either operation. Dr. Ashcraft was assisted by Dr. Benson and Dr. Campbell. This claimant was, at most, only an interested spectator. We are also of the opinion that the item of $150 for assisting at the blood transfusions is excessive and allow only $50 for this particular service. These deductions reduce the claim to $950, in which sum it is allowed. No interest is allowed for the same reason as heretofore stated.

Prom Aaron S. Swartz, Jr., Norristown, Pa.


source: Caselaw Access Project

author: Stewart, P. J.,

license: Public Domain

text:
    North Catasauqua Borough v. Thomas.

      William H. Schneller, for plaintiff; Herbert F. Laub, for defendant.
    March 5, 1928.
   Stewart, P. J.,

This is a motion by the plaintiff for judgment non obstante veredicto. The case was tried together with six other cases. In these latter cases we directed a verdict for the plaintiff because there was nothing in dispute, but in the present case we submitted the question to the jury whether the defendant had received the notice that he was entitled to under the 8th section of the Act of June 4, 1901, P. L. 366, and under the provisions of the ordinance of plaintiff borough, known as No. 16. Plaintiff alleged that defendant had received such notice, and defendant denied that he had received it. The jury found for the defendant. In Pittsburgh v. Biggert, 23 Pa. Superior Ct. 540, President Judge Rice said: “In the absence of waiver or ground of estoppel, notice is as essential to the imposition of the duty to make the improvement as the enactment of the ordinance; and where there is no duty, there can be no default, and, therefore, no consequent liability to reimburse the municipality for the amount it voluntarily expended. In the absence of notice, the owner is neither liable for the whole cost nor any part of it.” In Wilvert et al. v. Sunbury Borough, 811 Pa. 57, the testimony was in dispute as to Whether notice had been given. The defendant presented a point and answer as follows: “The owner of the property had no such notice as contemplated by law, or of the ordinance passed, requiring property owners to grade, curb, pave and gutter on or before a certain day therein named. Answer. Notice as required by the act is necessary to charge the owner; whether such notice was given and when is referred to the jury.” The Supreme Court affirmed it, saying: “The court properly left it to the jury to say whether or not notice was given.” Other authorities might be cited to the same effect. The learned borough solicitor, in his brief, stated the question involved as follows: “If a borough fails to give notice to property owner to reset curb, is a lien filed for the cost of resetting said curb a legal lien by reason of a curative act of assembly?” He refers to two acts. The first act is the Act of March 21, 1925, P. L. 60. That act does not apply. The title is: “An act validating proceedings and ordinances of borough councils; providing for joint grading, paving, curbing and draining of public highways by the borough and county, borough and State, or the borough, county and State; and validating municipal liens therefor.” There is nothing in the body of the act which extends the scope of the title. The other act is Act of May 12, 1925, P. L. 575. The title is: “An act to validate certain proceedings for municipal improvements, municipal assessments, municipal claims and municipal liens in the several boroughs of this Commonwealth; providing for the filing of claims and liens therefor, and the proceedings for the collection of such assessments and claims.” It was passed on by the Supreme Court and held to be constitutional in Cresson Borough v. Seeds, 286 Pa. 288. We have examined the other authorities cited passing on other validating acts, but it is not necessary to discuss them. The principle making the Act of May 12, 1925, P. L. 575, constitutional is well settled. While a first reading of that act might lead one to infer that no draughtsman could make it broader than it is, nevertheless, the second paragraph of the syllabus in above case is a correct statement of its application. That paragraph is: “Under the circumstances stated in it, the Act of May 12, 1925, P. L. 575, validates assessments for street improvements, made by virtue of ordinances which had not been adopted by the requisite number of votes.” For convenience, we quote so much of the act as is pertinent to the present case, as given by Mr. Justice Simpson, as follows: “That statute is in part as follows: ‘Section 1. That whenever heretofore the council of any incorporated borough of this Commonwealth has . . . caused to be graded, paved, curbed ... or otherwise improved any public street or thoroughfare, ... or has by ordinance provided for the assessment against property owners of benefits for such improvement, . . . but owing to some defect in the petition, action of council, ... or for any. other reason the cost of such improvement . . . cannot be legally assessed upon the property bounding or abutting upon the street, or . . . payment thereof cannot be enforced as was contemplated by the act or acts of the General Assembly under which the improvement was attempted to be made, . . . such improvements are made valid and binding and the council of such incorporated borough may cause the property bounding or abutting on the street ... to be assessed . . . with such a portion of the cost of such improvement as is contemplated by the law under which the improvement was made, . . . and all such . . . assessments made or determined are hereby ratified, confirmed and validated. Such assessment or other assessment heretofore regularly made shall be a lien upon the property assessed. . . .’ Section 2 of the act provides for the filing of a lien ‘within six months after the approval of this act, when the improvement is now (then) completed.’ The instant ease is squarely within the terms of that statute, for the borough had caused the street to be ‘graded, paved [and] curbed;’ had ‘provided for the assessment’ against the property of defendant and the other abutting owners; but ‘payment thereof [could] not be enforced, as was contemplated by the . . ■. [statute] under which the improvement was attempted to be made.’ This being so, the act in terms says ‘such improvements are made valid and binding and . . . assessments heretofore regularly made shall be a lien upon the property assessed,’ and shall continue to be so, if filed ‘within six months after the approval of this act,’ as was the case here.” In other words, that case was solely confined to the fact that the ordinance did not receive, on final passage, the requisite number of votes, and the lien in that case was filed “within six months after the approval of this act.” That act, as Judge Simpson shows, joins the 1st and 2nd sections, and confines its operation to a lien which is filed within “six months after the completion of the work where the improvement is now in progress.” That is to say, in progress on May 12, 1925, when the act was adopted, or within six months after the approval of this act. That is to say, within six months of May 12, 1925. It is a curative act, and must be confined to the things mentioned above, but there is nothing wrong with the lien filed by the learned solicitor for the borough. We have carefully examined its provisions, and it would stand without requiring any help from the Act of 1925. The substance of the lien is set forth in the fourth paragraph as follows : “This claim or lien is filed for work and labor done and improvements made within six months last past under and by virtue of the Act of June 4, 1901, P. L. 364, and all other acts of assembly supplementary thereto, and an Ordinance of the Borough of North Catasauqua, County of Northampton and State of Pennsylvania, No. 16, approved the Fourteenth day of July, A. D. 1908, providing for the paving or re-paving, curbing or re-curbing, making of sidewalks, laying or re-laying gutters on and along any of the public highways in the said Borough of North Catasauqua, County of Northampton and State of Pennsylvania.” The trouble in this ease is not with the town council, or with the ordinance, or with the work, or with the borough solicitor. The defect is that the logic of a jury’s verdict establishes that something which may be regarded as a condition precedent to suit on a lien was not done; that is, notice was not given, as required by the statute and the ordinance. It is a matter of very grave doubt if a clause covering want of notice had been inserted in the act, it would be held to be constitutional, but that matter is not before us.

And now, March 5, 1928, motion by plaintiff for judgment non obstante veredicto is denied and rule is discharged, and judgment is directed to be entered on the verdict in favor of the defendant upon payment of the jury fee, and the evidence taken upon the trial is certified and filed and made part of the record. Prom Henry D. Maxwell, Easton, Pa.


author: Copeland, P. J.,

text:
    Midwest Commercial Credit Company v. Woloszyn.
    J. Raymond Sowash, for plaintiff; J. Regis Byrne, for defendant.
    March 22, 1928.
   Copeland, P. J.,

On Dec. 21, 1926, the plaintiff corporation issued a prsecipe for a writ of replevin for one Oldsmobile sedan. The said writ was returnable on the second Monday of January, 1927, to wit, Jan. 10, 1927. The affidavit accompanying the praecipe was signed by one S. Robert Shinn, Jr., representative of the plaintiff corporation, who averred that the value of the automobile was $500.

On Dec. 21, 1926, the plaintiff’s bond in replevin was filed, the said bond being signed' in typewriting “Midwest Commercial Credit Company, by S. Robert Shinn, Jr.,” having the word “Seal” printed after the name of S. Robert Shinn, United States Fidelity and Guaranty Company, - G. E. Wright, Attorney in Fact, with the word “Seal” printed after the name of G. E. Wright and United States Fidelity and Guaranty Company. The corporate seal of the plaintiff corporation and the corporate seal of the United States Fidelity and Guaranty Company are not affixed to the bond. This bond was approved by J. Arthur Thomas, Prothonotary of Westmoreland County, and filed Dec. 21, 1926.

The return of William Feightner, Sheriff, shows that the automobile was in possession of one J. S. Leffler, whose name was added to the writ, and who was made a party defendant. The said automobile was replevied at 3.35 o’clock P. M., Dec. 21, 1926. The return, as to Mary Woloszyn, the party defendant named in the writ, was nihil habet, and the automobile was delivered to the plaintiff. On Jan. 4, 1927, counsel for the said Mary Woloszyn filed a motion to quash the writ of replevin issued in this case and assigned in support of said motion the following reasons:

“1. The writ of replevin in this case was issued without the plaintiff’s having, before the issuing of the said writ, made and filed the affidavit required by the first and eighth sections of the Act of April 19, 1901, P. L. 88, in that: (1) The affidavit is not made by an officer of the plaintiff corporation; (2) it does not show the authority of the affiant to make the affidavit on behalf of the said plaintiff; (3) it does not show the relationship of the affiant to the corporation plaintiff.

“2. The writ of replevin in this case was issued without the plaintiff’s having, before the issuing of the writ, made and filed the bond required by the first and eighth sections of the Act of April 19, 1901, P. L. 88, in that (1) the bond is not the bond of the person applying for said writ of replevin, because (a) it is not signed by the president or vice-president or other proper officer of the said plaintiff corporation; (b) it does not have affixed thereto the common or corporate seal of said corporation plaintiff; (c) it is not attested by the secretary of the said plaintiff company; (d) the signature ‘Midwest Commercial Credit Company by S. Robert Shinn, Jr.,’ is not sufficient to bind the plaintiff; (e) bond does not show the authority of the subscriber to bind the plaintiff corporation. (2) The bond is not the bond of the surety for the plaintiff corporation, because (a) it is not signed by the president or vice-president of the said corporation purporting to sign as surety, United States Fidelity and Guaranty Company; (b) it is not attested by the secretary surety corporation; (g) the signature ‘United States Fidelity and Guaranty Company, G. E. Wright, Attorney in Fact,’ is not sufficient to bind the said surety; (d) the bond does not show the authority of the said subscriber to bind the said surety company.”

On Jan. 19, 1927, by leave of court, the plaintiff corporation filed an amended affidavit of value and plaintiff corporation was given ten days in which to file proper bond. On March 31, 1927, a second bond was filed, having seals of both the plaintiff corporation and surety company affixed thereto. On March 31, 1927, answer of plaintiff corporation to motion to quash writ of replevin was filed. This answer sets up that by reason of an order of this court made on Jan. 19, 1927, the plaintiff corporation filed a proper affidavit and substituted a new bond, meeting the objections of the defendant.

There are two questions involved in this case, and the first may be stated as follows: Is an affidavit of value, signed by a representative of a plaintiff corporation, without stating why an officer of the corporation did not sign the said affidavit, sufficient to sustain the issuing of a writ of replevin? This question may be answered in the affirmative. The purpose of the affidavit of value is to protect the prothonotary when he fixes the amount of bail to be given in an action of replevin. If the prothonotary waives that right, then he takes the risk of not fixing the proper amount of bail. Section 8 of the Act of March 19, 1903, P. L. 39, reads as follows: “The prothonotary shall, in the first instance, fix the amount of bail and approve or reject the security offered; his action in either regard shall be .subject to revision by the court, or, in vacation time, a judge thereof at chambers. In order to determine the amount of bail, the plaintiff shall make an affidavit of the value of the goods and chattels, which value shall be the cost to the defendant of replacing them should the issue be decided in his favor. The court, or, in vacation time, a judge thereof at chambers, may, upon motion, increase the amount of bail required; may require new bail, if for any reason the old bail has become insufficient, and may enter a non pros, against the party in default if he has the goods and chattels and its orders be not complied with, or may permit the substitution of bail for that already given and-enter an exoneratwr on the bail-bond.”

From this section it will be observed that the affidavit of value is merely used for the purpose of determining the amount of bail that is to be required in the case. It is true that the affidavit of value is presumed to be the cost to the defendant of replacing the goods, but there is nothing in the act which states specifically that this affidavit of value shall be filed with the prothonotary, as is the case dealing with the bond.

In Newman v. Globe Indemnity Co., 275 Pa. 374, it is stated “that the purpose of the affidavit of value, in an action of replevin, is merely to inform the prothonotary as to the amount of bond demandable. The making of it by the plaintiff, who is really acting for a bank of which he is cashier, does not void the proceeding in replevin. The record may be amended so that the plaintiff shall appear therein as cashier of the bank.”

In Automobile Securities Co. v. Swisshelm, 269 Pa. 153, it was held:

“1. The statutory provisions as to the affidavit of value provided by the replevin acts of April 19, 1901, P. L. 88, and March 19, 1903, P. L. 39, is merely a direction to the prothonotary outlining the practice to be followed by him in fixing the bail, and defects in an affidavit are not fatal to the replevin.

“2. The omission in the affidavit of value of the words ‘which shall be the cost to the defendant of replacing them’ is not fatal to the replevin.

“3. Where a suit in replevin is instituted by a corporation, the proceedings are not rendered fatally defective because the affidavit of value fails to show the authority of the agent who made the affidavit.”

From the decrees of the Supreme Court and lower courts, we are of the opinion that any defects or irregularities in the affidavit of value are not fatal to the action of replevin, and for that reason we deny the first reason assigned in the motion to quash the writ of replevin.

The second question involved in this case may be stated as follows: Is a bond in replevin signed by a representative of the plaintiff corporation and by the attomey-in-fact for the surety, having the word “Seal” printed after the names of the plaintiff corporation and surety, but not having the corporate seals of the plaintiff corporation and surety company attached thereto, sufficiently executed to warrant the issuing of a writ of replevin? Section 1 of the Act of April 19, 1901, P. L. 88, reads as follows: “That before any writ of replevin shall issue out of any court of this Commonwealth, the person applying for said writ shall execute and file with the prothonotary of the said court a bond to the Commonwealth of Pennsylvania for the use of the parties interested, with security in double the value of the goods sought tc¡ be replevied, conditioned that if the plaintiff or plaintiffs fail to maintain their title to such goods or chattels, he or they shall pay to the party thereunto entitled the value of said goods and chattels, and all legal costs, fees and damages which the defendant or other persons to whom such goods or chattels so replevied belong may sustain by reason of the issuance of such writ of replevin.”

It is observed that this section requires that the bond be filed with the prothonotary when, before this act was passed, the bond was filed with the sheriff of the county and remained' in custody of the sheriff. The prothonotary is the first person who passes upon the sufficiency of the bond. In the instant case, the original bond filed on Dec. 21, 1926, is marked “Approved and filed December 21, 1926, J. Arthur Thomas, Prothonotary.” If this bond was not sufficiently executed, or was deficient, then, under section 8, the defendant, by filing exceptions with the prothonotary, could have had that question settled, and if the prothonotary’s decision was not satisfactory, then the question could have been decided by the court upon an appeal from the decision of the prothonotary.

In Hogg v. Washington Oil Co., 54 Pitts. L. J. 448, 17 Dist. R. 118, it was held: “That the prothonotary is the proper officer to pass on a bond in the first instance, and if the defendant is dissatisfied with the plaintiff’s bond which has been accepted by the prothonotary, the proper practice is to file his exception in the first instance with the prothonotary; the other party can then appeal from the prothonotary’s disposition of the exceptions.”

We believe that in certain cases business principles should be applied in deciding questions of law. The plaintiff corporation is a finance corporation, probably engaged in the financing of automobiles and other personal property. In its quest for business, it is necessary for the plaintiff corporation to engage representatives who have certain powers and duties.

The surety company on the bond, to wit, the United States Fidelity and Guaranty Company, is a nationally known surety company; it is a recognized surety of this court and its attomeys-in-fact act for it in many communities. To a great extent, its business is to furnish bonds so that when a surety company appoints a person attomey-in-fact for it, then the action of that attomey-in-fact in signing a bond for the surety company in the course of its business binds the surety company, irrespective as to whether the corporate seal of the surety company is or is not affixed to' the bond. It would be almost impossible for a surety company to furnish its corporate seal to each and every attorney-in-fact'that it has in the various parts of this country.

We feel that a finance company or credit company is practically placed in the same position. These companies have representatives in various sections of the country; their duties are outlined. They may have power to collect moneys or to replevin certain property which is leased, and it would be almost impossible for the said finance or credit company to give' to each of its agents or representatives a corporate seal to remain in possession of the said agent or representative. We, therefore, would hold that when an agent of a finance or credit company signs the name of the finance or credit company to a paper which is required in the course of his business, such signature of the agent will bind the principal; and we feel, also, that when an attomey-in-fact for a surety company signs the name of a surety company on a bond for which the agent has received a premium, then such signature of. the attomey-in-fact will bind the principal, to wit, the surety company.

We feel, in the instant case, that even though the bond does not have the seal of the United States Fidelity and Guaranty Company, but is signed by G. E. Wright, attorney-in-fact, the said bond would be enforceable against the surety, by reason of the fact that it accepted a premium for the said bond; if there was no seal at all on the bond, the corporation would be liable.

The law is aptly stated in 7 Ruling Case Law, § 109, page 138, which reads as follows: “That the strict rule of the ancient common law was that a corporation could only act under its seal, and, therefore, was not bound by written contracts not under seal. This rule, however, was relaxed at an early date and the present general rule is that wherever a corporation is acting within the scope of the legitimate purpose of its institution, all parol contracts made by its authorized agents are express promises by the corporation; and all duties imposed on them by law and all benefits conferred at their request raise implied promises for the enforcement of which an action may well lie. The great convenience of such rule, indeed, the necessity in some cases, to prevent a failure of justice will not he doubted.”

In 4 Ruling Case Law, page 47, a bond is defined as follows: “Broadly speaking, a bond, sometimes denominated a specialty, as distinguished from a promissory note or other simple contract, is merely an obligation under seal; but it may be defined more precisely as an instrument under seal whereby the obligor binds himself to pay a certain sum of money to the obligee at a day appointed. The distinguishing characteristic of this form of instrument is the presence of a seal which imports solemnity and deliberation and makes it of a higher nature than simple contracts.”

In section 3, same volume of Ruling Case Law, the law is stated: “That it is not necessary for the obligor to sign the instrument personally; this may be done by agent or proxy.”

In the instant case, we feel that the bond as executed and filed on Dec. 21, 1926, is not void, but merely voidable, because the plaintiff corporation and the surety company, in order to defend in an action on the bond, would have to raise the defense that the representative or attorney-in-fact did not have authority to sign the bond.

In 7 Ruling Case Law, § 628, page 629, the law is aptly stated: “Where a corporation is sued on a contract formally entered into by its officers or agent, it is generally held that the defense that the officer or agent had no power from the corporation to make the contract is a special defense, which must, to enable the corporation to avail itself thereof, be specially pleaded.”

In the instant case, leave of court was granted the plaintiff to file a proper bond; this bond was. filed and approved on March 31, 1927. In view of the fact that suit could be maintained on the original bond filed, and in view of the fact that the plaintiff corporation and the surety company would have to plead specially non-authority of its agents in order to defeat an action on the said bond, we feel that the court had authority to order a new bond filed for the bond filed on Dec. 21, 1926, under the provisions contained in section 8 of the Act of March 19, 1903, P. L. 39, wherein it is stated that “the court may require new bail if for any reason the old bail has become insufficient, or may permit the substitution of bail for that already given.”

The substitution of the new bond corrects any imperfections in the old bond. We have been unable to find any Pennsylvania authority wherein the question as to whether a bond may be amended has been decided, but we feel that the case of Hawley v. Bates, 19 Wendell, New York, 632, wherein it was held “that a replevin bond, imperfect in itself and executed with but one surety, will be allowed to be amended after service of the writ upon payment of costs of motion to set aside the proceedings. The substitution of the new bond saves the defendant harmless and secures him the benefit of the statute without imposing upon the plaintiff the trouble and expense of a new suit,” should govern in this case.

We, therefore, feel from the authorities and reasons above set forth that it is discretionary with the court to permit the substitution of a new bond for an old bond, and this having been done by the plaintiff with leave of court, we are of the opinion that the second reason assigned' in the motion to quash the writ of replevin should be dismissed, as the filing of the new bond amply protects the defendant in all her rights.

And now, to wit, March 22, 1928, after due and careful consideration, it is ordered, adjudged and decreed that the motion to quash the writ of replevin be and the same is hereby dismissed, at the cost of the defendant.

From William S. Rial, Greensburg, Pa.


author: Gest, J.,

text:
    Keen’s Estate.

      James A. Walker, for exceptant; John Stokes Adams, contra.
    Dec. 7, 1928.
   Gest, J.,

Mabel C. Keen died in 1923, at the age of twenty-six, intestate, unmarried and without issue. She left surviving her a twin sister, Beatrice Keen Wescoat (since deceased), and two half sisters, Adelaide K. Warren and Anna M. Campion, who are the children of the decedent’s father by a prior marriage. The estate of Mabel C. Keen here accounted for consists of personal property derived from her mother, Estella M. Keen, in 1907. The decedent from early childhood was admittedly • non compos mentis, although she had not been declared a lunatic or feeble-minded under statutory provisions.

In accordance with the provisions of the Intestate Act of 1917, the Auditing Judge awarded the balance for distribution in equal third parts among the intestate’s two half sisters and the executor of her deceased full sister Beatrice. The executor of Beatrice filed these exceptions, claiming that the entire fund (derived from her mother) should have been awarded to him because he represented the sister of the whole blood, to the exclusion of the half sisters of the decedent.

We might well dismiss the exceptions without discussion upon the authority of our Intestate Act, but, in recognition of the antequarian researches of the learned counsel for the exceptant, we will elaborate our opinion.

It is contended in behalf of the exceptant that “the laws of testacy and intestacy cannot apply to persons non compos mentis. They may not die testate because of lack of mentality; they are obliged to die without a will. When they die, they must of necessity die will-less, and their inherited property should go, not under the intestate laws, which apply only to those wno choose to die intestate, but such inherited property should revert back to the blood of the bequeathing ancestor.”

It is argued that unless there is some statute which specifically provides for the inheritance or distribution of the property of an insane person, recourse must be had to the common law on the subject, and we are referred to the ancient Statute De Prerogativa Regis, enacted in 17 Edw. II, Cap. ix, enacted in 1324, as showing the common law rule. Chapter ix of this statute the original of which may be found in 1 Ruffhead’s Stat. at Large, 181 (com eerning the King’s Prerogative in the Custody of Lands of Idiots), is as follows: “Rex habet custodiam terrarum fatuorum naturalium, capiendo exitus earundem sine vasto et destruetione et inveniet eis necessaria sua de cujuscumque feodo ierre Ule fuerint; et post mortem eorum reddat eas rectic heredibus ita quod nullatenus per eosdem fatuos alienentur vel eorum heredes exheredentur,” or, in the vulgar tongue, “The King shall have the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries, of whose fee soever the lands be holden. And after the death of such idiots, he shall render them to the right heirs; so that by such idiots no alienation shall be made, nor shall their heirs be disinherited.” And chapter X (concerning the King’s Prerogative in the Preservation of the Lands of Lunatics) is as follows: “Item habet providers quando aliquis qui prius habuerit memoriam et intellectum, non fuerit compos mentis sue, sieut quídam sunt per lucida intervalla, quod terre et tenementa eorundem salvo custodiantur sine vasto et destructions, et quod ipse et familia sua de exitibus earundum vivant et sustineantur competenter, et residuum ultra sustentationem eorundem rationabilem custodiatur ad opus ipsorum liberandum eis quando memoriam recupaverint. Ha quod predicte terre et tenementa infra prsedictum tempus non alienentur. Nec Rex de exitibus aliquid percipiat ad opus suum, et si obierit in tali statu tunc ilhid residuum distribuatur pro anima ejusdem per consilium ordinarii.” Or, in the vulgar tongue: “Also, the King shall provide when any, that beforetime hath had his wit and memory, happen to fail of his wit, as there are many having lucid intervals, that their lands and tenements shall be safely kept without waste and destruction, and that they and their household shall live and be maintained competently from the issues of the same; and the residue beyond their reasonable sustentation, shall be kept to their use, to be delivered unto them when they recover their right mind; so that such lands and tenements shall in no wise within the time aforesaid be aliened; nor shall the King take anything to his own use. And if the party die in such estate, then the residue shall be distributed for his soul by the advice of the ordinary.”

These statutes may be found more accessibly in Shelford on Lunatics, Appendix, page 497.

What this statute has to do with the question before us, we cannot divine. It has no more relevancy than the Statute of Ragman, 4 Edw. I, Coke, 3 Inst. 175; 4 Inst. 186; or the common-law doctrine of Hoghenehyne, Braeton 124 6, Coke, 2 Inst. 669. It simply vested in the King, as parens patriae, the custody of the lands of natural-born idiots, in the one case, and of the lands of those who become insane, in the other, so that the profits might be collected by the King for the benefit of the lunatic and the lands preserved for his benefit or that of his heirs after his death, and, under chapter x: “If the party die in such estate, then the residue (of the profits) shall be distributed for his soul by the advice of the ordinary” (i. e., the Bishop).

In Beverley’s Case, 4 Rep. 126 (a), there will be found Coke’s commentary on this statute.

But even if the Statute De Prerogativa Regis had otherwise any application, it is clear that it never extended to this State, as our Supreme Court has held in so many words in Wright’s Appeal, 8 Pa. 57; and indeed it is not to be found in Roberts’s Digest of British Statutes. The proposition that our Intestate Act does not apply to the distribution of the estates of persons non compos mentis is utterly baseless.

None of our Intestate Acts, including the Act of April 19, 1794, 3 Sm. Laws, 143, and the Act of April 8, 1833, P. L. 315, give the slightest countenance to such a theory, and the present Intestate Act of 1917 is explicit to the contrary, for section 27 in terms provides that “this act shall take effect on the thirty-first day of December, 1917, and shall apply to the estates, real and personal, of all persons dying intestate on or after said day,” and section 28 provides that “this act of assembly is intended as an entire and complete system for the descent and distribution of the estates, real and personal, of persons dying intestate.”

And, furthermore, the Intestate Act of 1917, by sections 9 and 13, completely obliterated all distinctions in descent and distribution as respects persons of the half or whole blood or those not of the blood of the ancestor from whom the estate is derived.

As we said in the beginning, our Intestate Act disposes at one stroke of these exceptions, which are, therefore, dismissed, and the adjudication is confirmed absolutely.


author: Kun, J.,

text:
    Rennie v. Schepps et al.

      J. V. Horan, for plaintiff.

      Frederick Beyer and Theodore F. Jenkins, for defendants.
    Jan. 4, 1929.
   Kun, J.,

According to the plaintiff’s testimony, Robert S. Schepps, a butcher, one of the defendants, purchased seven dehorned steers from Messrs. Heilbron and Loeb, cattle brokers. At the request of Schepps, the West Philadelphia Stock Yard Company, the other defendant, hauled the steers to Schepps’s slaughter-house on Orkney Street. Schepps’s store is No. 2937 North 5th Street, the slaughter-house is in the rear, on Orkney Street, a narrow street with a cartway about twelve feet wide. The steers were brought to the slaughter-house on a truck of the West Philadelphia Stock Yard Company, and while being unloaded, one of the steers ran down Orkney Street, though one of the men in charge of the truck endeavored to prevent it. The plaintiff’s case also showed that the West Philadelphia Stock Yard Company had sent two men with the truck, who, with some men of the defendant, Schepps, were looking after the steers in getting them into Schepps’s place, when the one got away. The steer, some four or five miles from Schepps’s place of business, came in contact with plaintiff’s motor-car, which he was driving, and occasioned the damage complained of.

There was no evidence in the case that the dehorned steer which got away was wild, or that either of the defendants had any knowledge that it had any unusual propensities. As the proofs failed to disclose any evidence on which a jury could have found negligence on the part of the defendants, a non-suit was entered.

While there is some confusion in this class of cases, it seems clear that recovery can be had only on one of two theories, scienter or negligence. Where viciousness of the animal and scienter of the owner is shown, it is generally held that a prima facie case is established, and the defendant is put to his defense, though some authorities hold that, even in such case, negligence must be shown. Undoubtedly, where scienter is proven, the owner must be charged with a higher degree of care. However, in this case, there was no proof of scienter, so that it could not be submitted to the jury on that theory. This, however, though scienter was averred, did not prevent plaintiff from having his case submitted to the jury on the other theory of liability, to wit, negligence, if there were any proofs in the case from which negligence could be properly inferred: Puechner v. Braun, 10 Pa. Superior Ct. 595.

The burden of proving negligence, however, in a ease of this sort is no different from that in any other negligence case, excepting cases in which the doctrine of res ipsa, loquitur is applied, and this is not one of them. Plaintiff cannot recover on the mere happening of the occurrence. He must present some proofs from which negligence may fairly be inferred. When, however, there is no evidence in the case from which such an inference may fairly be made, there is nothing to submit to the jury: Quigley v. Adams Express Co., 27 Pa. Superior Ct. 116; Laughlin v. Philadelphia, 239 Pa. 455; Barshay v. American Ice Co., 84 Pa. Superior Ct. 538.

In the Peuchner ease, supra, the court said: “The whole question turns upon whether or not the defendant or those acting for him did all that was reasonable and proper after this steer manifested that it was wild and, perhaps, dangerous.” This language implies there was some evidence in the case to which it was applicable.

In the instant case, there were no proofs presented to indicate that the steer manifested that it was wild and, perhaps, dangerous. According to the plaintiff’s proofs, it, with six other dehorned steers, was conveyed by the defendant, West Philadelphia Stock Yard Company, apparently in the usual and ordinary way, in a truck in charge of two men, and when the truck arrived at the rear of the other defendant’s place of business in a narrow street, some men of the defendant, Schepps, helped the two men of the stock yard company to look after the unloading of the steers. A number of them were safely guided into the defendant’s yard, but one of them somehow got away, damaging the plaintiff. There was no evidence in the case that the manner and the means by which the stock yard company conveyed and delivered the dehorned steers to the defendant, Schepps, was imprudent or improper, or that the manner in which the defendant, Schepps, received them was imprudent or improper in any particular. In this situation, the court could not submit any question of negligence to the jury, however blameless the plaintiff was.

In the case of Erdman v. Gottshall, 9 Pa. Superior Ct. 295, which was a suit for damages for injury to plaintiff’s corn, committed by two distinct acts of- trespass by the defendant’s cows, it appeared that the first occurred while the cows were being driven on the public highway, by their escaping into a cornfield of the plaintiff opening upon the highway. The trial judge submitted the matter to the jury, saying, inter alia: “It is not a question as to whether there was negligence on the part of the owner of the cattle in trusting them to those boys, or not; if they did escape from their control, got upon the plaintiff’s land and destroyed her corn, the defendant is liable for whatever damages she sustained.” The Superior Court held this was error, saying: “In this case there was no evidence of negligence in the driving of the cows, nor in committing the care of them to the defendant’s sons. The only possible liability was for failure to remove the cattle from the plaintiff’s premises within a reasonable time. This ordinarily would be a question for the jury: Goodwyn v. Cheveley, 4 H. & N. 631. But the evidence adduced at the trial was not sufficient to warrant its submission. The court should, therefore, have instructed the jury for the defendant in respect to the first alleged trespass.”

In a case where two men were driving a bull through the streets by ropes attached to a ring in its nose, and, on being excited, the bull broke the ring, in which there was some latent defect, and injured the plaintiff, it was held that he could not recover, there being no evidence of negligence: Harpers v. Great North of Scotland R. Co., 13 Rettie, 1139, cited in 3 Corpus Juris, 97, note 5, in which is also cited Curtis v. Schlosser, 3 Dist. R. 598, 14 Pa. C. C. Reps. 600.

In the instant case, the proofs were entirely devoid of any evidence from which negligence on the part of the defendants, or either of them, could have been fairly inferred.

The court properly overruled the motion to take off the non-suit.


author: Hargest, P. J.,

text:
    Lackawanna County Undertakers’ Association et al. v. State Board of Undertakers et al.

      James J. Powell, for petitioners.

      Penrose Hertzler, Deputy Attorney-General, contra.
    Oct. 11, 1928.
   Hargest, P. J.,

This case comes before us upon a petition for a declaratory judgment and the answer thereto, asking us to interpret section 6 of the Act of June 7, 1895, P. L. 167, as amended by the Act of March 30, 19'25, P. L. 92, and the Act of May 13, 1927, P. L. 1005.

The precise question is whether one must be engaged continuously and! exclusively in the business of undertaking to be entitled to a license to practice said business.

The facts are not disputed. The State Board of Undertakers has found as a fact that John W. Wrobolski, Vincent J. McGraw, Kenneth R. Williams and William L. Byrne were qualified to be examined by said board upon their applications for licensure; said examinations have been given and the board is now considering these applications. During the two years within which the applicants claim they have had practical experience in the undertaking business, John W. Wrobolski was a mechanic working in the railroad shops at Ashley, Luzerne County, Pa.; Vincent J. McGraw was an employee of the Highland Coal Company, located at Freeland, in said county; Kenneth R. Williams was an employee of the First National Bank of Plymouth, in said county, and William L. Byrne was an employee, for nine months during said two years, of the Hudson Coal Company, in the Borough of Olyphant, Lackawanna County. Each of the said defendants had permission from their respective employers, and were at all times free to attend' to their duties as registered assistants to licensed undertakers, whenever they were called upon, and did leave their several employments to embalm bodies, conduct funerals and perform such other duties in the line of their employment as the respective undertakers for whom they worked had for them to perform.

The statute above referred to provides for the qualifications of persons to be licensed to practice the business of undertaking. In so far as it affects this case, it provides: “If the board shall find, upon due examination, that the applicant or applicants . . . have had practical experience in the business of undertaking, for two years continuously, with an undertaker or undertakers— the board shall issue to said applicant or applicants, upon payment of a fee of, twenty-five dollars, a license to practice said business of undertaking, and shall register such applicants or applicant as duly licensed undertakers.”

The petitioners contend that the individual defendants have not fulfilled the requirements of the statute because they have not been employed exclusively by licensed undertakers, and the question is whether they “have had practical experience in the business of undertaking, for two years continuously, with an undertaker or undertakers.”

It is argued that the statute should be construed with reference to the object intended to be accomplished by it, and that, unless we construe the word “continuously” to include also “exclusively,” it will be giving to the statute a meaning which falls short of the legislative intention. We cannot adopt this view. The words “continuous” and “exclusive” are not synonymous. “Continuously” means to the end of the period or term (Zelleken v. Lynch, 104 Pac. Repr. 563, 564; 80 Kan. 746), and is not synonymous with “incessantly” or “uninterruptedly:” United States Shipping Co. v. United States, 146 Fed. Repr. 914, 920; Nauman v. Treen Box Co., 280 Pa. 97, 101. On the other hand, “exclusively” means to the exclusion of all others: 17 Cyc., 871-872; Com. v. Superintendent of House of Correction, 64 Pa. Superior Ct. 613, 623; Hofer’s Appeal, 116 Pa. 360; People v. Lawler, 77 N. Y. Supp. 840, 842.

If a minister preached regularly in a particular church over a period of two years, he could be said to have preached continuously, even though he occasionally preached elsewhere, but he could not be said to have preached exclusively in that church. So if these applicants did all of the practical work which their several employers had for them to do in the business of undertaking, there is no doubt that each of them would have “practical experience in the business of undertaking, for two years continuously,” even though the business was not of sufficient volume to require their exclusive time.

It might take a very large undertaking business, to be found perhaps in few places, which would require the exclusive time of assistants to licensed undertakers. In any event, the legislature has not put that requirement upon persons desiring to qualify for examination and licensure. It requires practical experience for two years continuously, but does not require such applicant to remain idle during the time there is no undertaking work to perform. If the State Board of Undertakers finds as a fact that the applicants have had practical experience in the business of undertaking for two years continuously with an undertaker or undertakers and that they are otherwise qualified under the statute, they may be licensed, even though they have not been exclusively employed by undertakers.

Now, Oct. 11, 1928, we declare that the Act of May 13, 1927, P. L. 1005, amending the 6th section of the Act of June 7, 1895, P. L. 167, requires continuous practical experience in the business of undertaking, but not exclusive employment therein, and the petition requesting us to declare otherwise is hereby dismissed, at the cost of the petitioners.

From Homer L. Kreider, Harrisburg, Pa.