text:
    Commonwealth v. Southern Pipe Line Company.

      Taxation — Corporations—Gross receipts tax — Pipe lines — Interstate commerce — Constitutional law — Commerce clause — Act of June 1, 1889.

    1. A Pennsylvania corporation incorporated for the purpose, inter alia, of “transporting, piping, storing, insuring and shipping petroleum," and, in the course of that business, carrying oil across this State in pipe lines as a part of its transportation between points outside the State, is a common carrier engaged in interstate commerce.
    2. The fact that a comparatively small quantity of oil which was produced in Pennsylvania was also transported through the same pipes to New Jersey does not constitute such a commingling of the oils from outside the State with that of Pennsylvania as to establish the character of all the oil as property of this State for purposes of taxation.
    3. That the company owns tanks along its lines in which oil in the course of transportation is sometimes held awaiting specific instructions as to its delivery, or to allow the passage of other oil through the pipes, does not deprive the business of its character as interstate commerce.
    4. The tax, established by the 23rd section of the Act of June 1, 1889, P. L. 420, 431, upon the gross receipts of pipe-line companies, inter alia, is a general tax without limitation, and is not merely a franchise tax.
    5. A general tax, without limitation either as to amount or with reference to other taxing powers of the State, upon gross receipts derived from interstate commerce is a tax upon interstate commerce and is a violation of the commerce clause of the Federal Constitution.
    6. The tax settled by the Commonwealth upon the gross receipts of a company engaged in interstate commerce under the 23rd section of the Act of June 1, 1889, P. L. 420, 431, is unconstitutional.
    Appeal from settlement by the Commonwealth of tax on gross receipts. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 3.

      William I. Schaffer, Attorney-General, William M. Hargest, Deputy Attorney-General, and A. L. Shay, for plaintiff.

      Olmsted, Snyder & Miller, F. L. Crawford and H. C. Dorworth, for defendant.
    March 29, 1922.
   Henry, P. J.,

52nd judicial district, specially presiding,

This appeal was taken by the defendant from the settlement of an account by the Auditor General and State Treasurer of Pennsylvania taxing the gross receipts of the defendant’s business for the six months’ period ending Dec. 31, 1918.

The parties, by stipulation in writing, agreed to submit the ease to the decision of the court without the aid of the jury, under the provisions of the Act of April 22, 1874, P. L. 109.

[The findings of fact, sixty-eight in number, are omitted from this report, as all essential facts may be gathered from the discussion.]

Discussion.

The tax in question was imposed under the provisions of the 23rd section of the Act of June 1, 1889, P. L. 420, 431, which reads as follows:

“Section 23. That every railroad company, pipe-line company, conduit company, steamboat company, canal company, slack-water navigation company, transportation company, street passenger railway company, and every other company, joint stock association or limited partnership, now or hereafter incorporated or organized by or under any law of this Commonwealth, or now or hereafter organized or incorporated by any other state or by the United States or any foreign government and doing business in this Commonwealth, and owning, operating or leasing to or from another corporation, company, association, joint stock association or limited partnership, any railroad, pipe line, slack-water navigation, street passenger railway, canal or other device for the transportation of freight or passengers or oil, and every telephone or telegraph company incorporated under the laws of this or any other state or of the United States and doing business in this Commonwealth, and every express company, incorporated or unincorporated, doing business in this Commonwealth, and every firm, copartnership or joint stock company or association doing express business in this Commonwealth, and every electric light company, and every palace car and sleeping car company, incorporated or unincorporated, doing business in this Commonwealth, shall pay to the State Treasurer a tax of 8 mills upon the dollar upon the gross receipts of said corporation, company or association, limited partnership, firm or copart-nership, received from passengers and freight traffic transported wholly within this State, and from telegraph, telephone or express business done wholly within this State, or from business of electric light companies, and from the transportation of oil done wholly within the State; the said tax shall be paid semi-annually upon the last days of January and July in each year; and for the purpose of ascertaining the amount of the same, it shall be the duty of the treasurer or other proper officer of the said company, firm, copartnership, limited partnership, joint stock association or corporation, to transmit to the Auditor General a statement, under oath or affirmation, of the amount of gross receipts of the said companies, copartnerships, corporations, joint stock associations or limited partnerships derived from all sources, and of gross receipts from business done wholly within the State during the preceding six months ending on the first days of January and July in each year.”

The Commonwealth contends that the act authorizes the collection of the tax upon gross receipts, whether realized from the transportation of oil in interstate commerce or intrastate commerce, where such receipts are limited to the charges for transporting the oil in or through the State of Pennsylvania; that the act is constitutional; that the tax in question is a franchise tax measured by the amount of the gross receipts of the defendant company, and, therefore, not in contravention of the Commerce Clause of the United States Constitution; that the defendant has commingled 19,862.52 barrels of oil produced in Pennsylvania with 2,768,094.50 barrels of the same grade of oil, known as Pennsylvania grade oil, but produced in other states, and that, as a consequence, the latter oil is “mingled with the general body of the property of the State and loses its identity as an interstate product;” that the oil passing through the tanks at Millway thereby comes to rest in the State of Pennsylvania, is mingled with the general property of the State, and becomes the subject of taxation by the State.

The defendant contends that the 23rd section of the Act of 1889 is restricted by its terms to intrastate commerce; that the said act is unconstitutional, in so far as it attempts to tax gross receipts earned for the transportation of oil in interstate commerce; that all of the gross receipts of the defendant for the period in question were derived from the transportation of oil in interstate commerce; that the defendant company has already paid to the Commonwealth of Pennsylvania for the year 1918 a tax upon its capital stock amounting to $117,600, which represents a tax upon its assets, and that any further attempt upon the part of the State of Pennsylvania to tax the gross receipts of the defendant would be imposing a burden upon interstate commerce, and, therefore, would be unlawful, as in contravention of section 8 of art. I of the Federal Constitution and of the Acts of Congress regulating commerce between the states.

The principal controlling facts as established by the evidence formally found by the court are that the business of the defendant is the transporting of oil owned by others, through its pipe lines, and all its gross receipts are derived from the transportation and pumping of oil in commerce between the states, the only oil produced in Pennsylvania being 19,862.52 barrels, which was consigned to Bayonne, N. J.; that the only delays in this transportation of oil in the tanks or pipes of the defendant are such as are necessary in the practical and continuous operation of such pipe lines and the distribution of the proper grade of oil to the consignee designated by the shipper and owner.

We cannot adopt the construction contended for by the defendant, namely, that the Act of June 1, 1889, under which the tax is assessed, must be limited to intrastate commerce. The language of the act plainly indicates an intention to tax the gross receipts of pipe-line companies, derived “from the transportation of oil done wholly within the State,” and this is sufficiently broad to include earnings within the State upon oil in interstate commerce. The clause refers to the part played in the transportation of the oil by the company taxed, rather than to the movement of the oil in which the carrier has not taken a part.

The principal question for determination is whether the said Act of 1889 is constitutional under the facts of the case before us. In the abstract, the act is not necessarily an interference with, or a burden upon, interstate commerce. Where the tax is in reality a franchise tax, and the amount is measured by the earnings, it has been upheld. U. S. Express Co. v. Minnesota, 223 U. S. 335, 344, the court holding that “the mere fact that a corporation is engaged in interstate commerce does not exempt its property from state taxation:” Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 82.

There are numerous other cases in which a property tax or a franchise tax, or an income tax, though measured by earnings wholly or partly derived from interstate commerce, has been sustained where it is part of the general system of taxation and limited in operation or amount.

The present tax must be considered as one without limitation, without any designation as a franchise tax, and with the established fact that the defendant company is subjected to and has paid the capital stock tax which covers all its assets. The first tax of this character enacted in Pennsylvania, to which our attention has been directed, is the Tonnage Tax of 1864, which was declared unconstitutional in the Tonnage Tax Cases, 15 Wall. 232. This act was followed by the Act of Feb. 23, 1866, P. L. 82, taxing gross receipts, which was repealed by the Act of April 24, 1874, P. L. 68, but re-enacted March 20, 1877, P. L. 6, which was amended June 7, 1879, P. L. 112, which was supplemented by the Act of June 1, 1889, P. L. 420, under which the present tax was assessed. The original gross receipts tax was upheld in Phila. & Reading Ry. Co. v. Pennsylvania, 82 U. S. 284, but this decision was criticised, questioned and overruled, and the gross receipts tax held invalid as an unlawful interference with interstate commerce in Philadelphia and Southern Steamship Co. v. Pennsylvania, 122 U. S. 326, which last-mentioned decision has been cited with approval in many later and recent cases. The tax on gross receipts derived from interstate commerce was held invalid in Fargo v. Michigan, 121 U. S. 230, Western Union Telegraph Co. v. Pennsylvania, 128 U. S. 39. In Galveston R. R. Co. v. State of Texas, 210 U. S. 217, the' line of a carrier was wholly within the state, but its gross receipts were held not taxable if partly derived from the carriage of passengers and freight coming from or destined to points without the state. The commerce was interstate. In Looney v. Crane Co., 245 U. S. 178, an attempt was made to tax a foreign corporation doing business in Texas by levying a tax upon the capital stock, surplus and undivided profits, without limitation or restriction, and the Act was held to be unconstitutional. In Crew-Levick Co. v. Pennsylvania, 245 U. S. 292, a tax levied under the Mercantile License Act of Pennsylvania was declared invalid where it assumed to tax merchandise shipped from the plaintiff’s warehouse in Pennsylvania to foreign countries.

Among the cases sustaining the tax, where it was part of the general system of taxation, but limited in operation or amount, are Cudahy Packing Co. v. Minnesota, 246 U. S. 450, where the act provided that the tax in question should be “in lieu of other tax& on the property.” In Meyer v. Wells, Fargo & Co., 223 U. S. 298, the tax was held invalid because not so limited, and in U. S. Express Co. v. Minnesota, 223 U. S. 335, the tax was sustained because of a similar limitation. In Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, the tax was “in lieu of other state, county and municipal taxes.” In Maine v. Grand Trunk Ry. Co., 142 U. S. 217, buildings, lands and fixtures outside of the railroad’s right of way were taxed as property, and a franchise tax was levied for the privilege of doing business in the state, which was in lieu of all other taxes upon such railroad and its property, and the tax was upheld. In Baltic Mining Co. v. Massachusetts, 231 U. S. 68, and Kansas City Ry. Co. v. Kansas, 240 U. S. 227, the tax was upheld because of such limitation, while in Looney v. Crane Co., 245 U. S. 178, International Paper Co. v. Massachusetts, 246 U. S. 135, and Locomobile Company of America v. Massachusetts, 246 U. S. 146, the tax was held invalid because of the want of such limitation.

The Pennsylvania tax is without limitation, and, therefore, comes within the ban of this and other authorities of the Supreme Court of the United States.

The Commonwealth rests its contention largely upon the reasoning of Pennsylvania decisions which have been overruled by the United States Supreme Court, and upon authorities sustaining the imposition by states of the franchise tax. It is urged that the Pennsylvania courts have construed these taxes on gross receipts as a franchise tax, and that the United States Supreme Court decisions recognize the construction of the State court. Reliance is placed upon the sentence “a tax on gross receipts is in the nature of a tax on the franchise,” found in Philadelphia & Southern Steamship Co. v. Com., 104 Pa. 109, a case in which the act under which the tax was laid was declared unconstitutional in 122 U. S. 326, and while the Federal courts have held that in a matter of construction, they will follow the state courts, yet in determining the constitutionality of a state enactment or the validity of a tax laid thereunder, they have time and again stated that “the substance rather than the form” is to be regarded, and “the controlling test is to be found in the operation and effect of the law as applied and enforced by a state:” St. Louis Southwestern R. R. Co. v. Arkansas, 235 U. S. 350; Western Union Telegraph Co. v. Kansas, 216 U. S. 1.

The Commonwealth strongly insists that St. Louis Southwestern R. R. Co. v. Arkansas, 235 U. S. 350, is authority for the position that the tax in question is a franchise tax, and that it is not invalidated by a tax assessed against the capital stock or assets of the same corporation. In that case the State of Arkansas, by what was designated as a franchise tax, assumed to levy an initial tax against foreign corporations doing business in the state of a like amount as assessed against domestic corporations, and, in addition, provided for an annual tax “for the privilege of exercising its franchise in the state.” This tax was based upon a specified percentage of the capital stock of the corporation represented by property owned and used in business transacted in the state. The tax was sustained, the court holding that the franchise intended to be taxed is that which relates solely to intrastate business, and that the initial fees were also charged for the privilege of doing intrastate business. As held, “the tax ... is not in any wise based upon the receipts of a railroad company from interstate commerce.” This sentence in itself conclusively distinguishes that case from the one at bar.

The Commonwealth further contends that the oil in the tanks at Millway “has come to rest” in the State and thereby has lost its character as interstate commerce, and is a part of the property of the State. We must, however, distinguish between storage or coming to rest for the accommodation and convenience of the owner and a rest imposed by a carrier for the convenience of transportation and distribution to the consignee designated by the owner at the time of tender of shipment to the original carrier. Delays of this character and of far longer duration have been held to be incidental to the transportation: Swift & Co. v. United States, 196 U. S. 375; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498; Ohio R. R. Commission v. Worthington, 225 U. S. 101; United States v. Union Stock Yard, 226 U. S. 286; Texas & N. O. R. R. Co. v. Sabine Tram Co., 227 U. S. 111; Railroad Commission of Louisiana v. Texas & Pacific Ry. Co., 229 U. S. 336; Western Transit Co. v. Leslie, 242 U. S. 448.

The cases relied upon by the Commonwealth to sustain this position are: American Steel and Wire Co. v. Speed, 192 U. S. 500, in which the goods were stored in a warehouse by the owners, where they were held for sale and delivery as contracts were completely consummated. In General Oil Co. v. Crain, 209 U. S. 211, the “oil had reached the destination of its first shipment and was held there, not in necessary delay or accommodation to the means of transportation, but for the business purposes and profit of the company.” While in Susquehanna Coal Co. v. South Amboy, 228 U. S. 665, coal was shipped to another state and there stored subject to the disposition of the coal company “in anticipation of orders from regular customers in the near future.” In all of these cases the merchandise came to rest for the convenience of the business purposes of the owner, and, therefore, could not be considered as being in interstate commerce.

The remaining contention of the Commonwealth is that 19,868.52 barrels of oil produced in Pennsylvania were commingled with Pennsylvania grade oil from other states, and that thereby all of such Pennsylvania grade oil, amounting to 2,768,094.50 barrels, must be considered as “mingled with the general body of the property of the State and loses its identity as an interstate product.” The weakness of this position is that it is not sustained by facts. The records of the defendant company, upon which both the Commonwealth and the defendant rely for the facts as to the origin and destination of the oil transported by the defendant, as well as the receipts of the company during the taxing period in question, show that these 19,868.52 barrels of oil produced in Pennsylvania were consigned to Bayonne, N. J., and there is no evidence in the ease indicating that the oil was delivered to any other point. This oil consequently was in interstate commerce, as was all the other Pennsylvania grade oil transported by the defendant. Moreover, in Ohio Railroad Commission v. Worthington, 225 U. S. 101, the delivery of a small part of the interstate shipment to a point in Ohio, making such small portion intrastate commerce, did not affect the status of the large and substantial interstate shipments.

The court must, therefore, conclude that the act in question extends to earnings from interstate commerce; that the act is unconstitutional in that it taxes gross receipts derived from interstate commerce without any limitation in amount or upon other taxing power of the State, when the State has already levied a tax against the defendant upon its capital stock and assets. The settlement of the tax as made by the Auditor General and State Treasurer cannot stand.

Conclusions of law.

1 — “First. The defendant company has the right of eminent domain under the Act of June 2, 1883, P. L. 61.”

2 — “Third. The gross receipts tax upon a franchise of a corporation is a lawful and proper tax, and may be levied without infringing the Commerce Clause or the Equal Laws Clause of the Constitution of the United States, even though the gross receipts are derived in part or wholly from the subject of interstate commerce.”

These two conclusions are in affirmance of the first and third requests of the Commonwealth for conclusions of law.

3 — “First. The defendant company is a common carrier under the Act of Congress of Feb. 4, 1887, commonly known as the Interstate Commerce Act, as amended by the Act of June 29, 1906.”

4 — “Second. The gross receipts tax under the Act of 1889 (P. L. 420), section 23, is not a tax upon any corporate franchise.”

5 — “Fifth. The value of a corporate franchise may not be measured for the purposes of taxation by the gross receipts of the corporation, when those gross receipts are derived from interstate commerce, unless the tax so levied is in lieu of other property taxes and is a part of a general system of taxation, or unless the act imposing the tax definitely limits the tax to a fixed, reasonable amount.”

6 — “Sixth. The gross receipts tax under the Act of 1889 (P. L. 420), section 23, as far as the same relates to the gross receipts of a pipeline company, is not a tax upon the franchise of that company, and if such gross receipts are derived from interstate commerce, the tax is unlawful and the act, as to such company, violates the Commerce Clause of the United States Constitution.”

7 — “Seventh. Whether commerce in commodities in a particular instance is interstate depends upon the movement of the commodities carried, and not upon the particular length of time or portion of the through route during or over which any particular carrier does the transporting.”

8 — “Eighth. The oil not produced in the State of Pennsylvania transported by the Southern Pipe Line Company during the six months’ period ending Dee. 31,1918, was moved in interstate commerce, irrespective of the fact that the share of such transportation performed by the Southern Pipe Line Company itself was to a large extent so performed within the State of Pennsylvania.”

9 — “Ninth. The delays of oil in the lines and tanks of the defendant during the six months ending Dec. 31,1918, were merely incidental to transportation, and did not affect the interstate character of the commerce, nor did they cause any break in the 'current’ of that commerce.”

10 — “Tenth. During the six months ending Dec. 31, 1918, there was no delay in the movement of the oil in the tanks of the Southern Pipe Line Company at Millway greater than was made necessary by the change of the grades of oil, or than was necessary for efficiency of operation and to keep the lines going at their maximum capacity.”

11 — “Eleventh. During the six months’ period ending Dec. 31, 1918, the tanks of the Southern Pipe Line Company at Millway were used solely as operating tanks.”

12 — “Twelfth. During the six months’ period ending July 18, 1920, there was no delay in the movement of oil by the Southern Pipe Line Company at Millway greater or longer than was necessitated by the requirements and exigencies of transportation.”

13 — “Thirteenth. During the six months ending Dec. 31,1918, the Southern Pipe Line Company did not store any oil in its lines or tanks.”

14 — “Fourteenth. The delays of commodities, while in the custody of a common carrier, which are due simply to the necessities of orderly transportation, or are caused by the lack of sufficient facilities of transportation, when the commodities have theretofore been moved in interstate commerce, do not affect the interstate character of the commerce, nor do they cause any break in its ‘current.’ ”

15 — “Fifteenth. Delays in the lines or tanks of a pipe-line company, due solely to the fact that the capacity of its lines is not sufficient at a given point to enable it to forward immediately all the oil consigned over a particular route, which oil had theretofore been moved in interstate commerce, do not affect the interstate character of the commerce, nor do they cause any break in the 'current’ of that commerce.”

16 — “Sixteenth. Where oil has been moved in interstate commerce, and it is destined by its shippers to go to some one of several designated points in another state from that in which it originated, the absence of a definite destination in such other state for a particular portion of the oil does not alter the interstate character of the shipment.”

17 — “Seventeenth. It is not essential that the particular destination of any particular portion of a commodity transported be fixed in order to prevent the interruption of an interstate movement, when the destinations of all the commodity in question are certain designated points in' states other than those in which the commodity originated, and which points were known and fixed before the commodity was started upon its interstate journey.”

18 — “Eighteenth. Where oil is moved in interstate commerce, and its destination in general to certain points in other states is known and fixed, the absence of a definite destination for any particular part of the oil does not alter the interstate character of the shipment.”

19 — '“Nineteenth. The fact that oil moved in interstate commerce was received by the Southern Pipe Line Company into its tanks at Millway, all of which oil was destined to be transported to some one of several designated points, but as to any particular part of which the particular destination was not known or fixed, and that the oil so received was distributed by the Southern Pipe Line Company to the various designated points in the quantity designated by the terms of the shipment, did not alter the interstate character of the shipment.”

20 — “Twentieth. The mixture of a small amount of Pennsylvania grade oil originating in the State of Pennsylvania with the general mass of oil of that grade originating elsewhere, which was transported by the Southern Pipe Line Company during the six months’ period ending Dec. 31, 1918, the oil so originating in Pennsylvania being less than 1 per cent, of the whole, had no effect on the interstate character of the oil which originated elsewhere than in Pennsylvania.” (This conclusion is strengthened by the fact that such oil originating in Pennsylvania is consigned to points beyond the State.)

21 — “Twenty-first. Oil produced in other states than Pennsylvania, which, in the course of transportation, has become mixed with a small percentage of oil produced in Pennsylvania, does not on that account-lose its interstate identity so as to become in Pennsylvania subject to a tax on the gross receipts derived from its transportation.”

22 — “Twenty-second. Oil flowing from other states into the tanks of the defendant company, where it was held for a period of a few days, in order to carry out an orderly system of transportation and to enable the defendant company to fulfill its obligations as a common carrier, did not cease to be in interstate commerce, and the gross receipts derived from its transportation are not the proper or legal subject of taxation.”

23 — “Twenty-third. The defendant company is not liable to pay any tax on gross receipts received from the transportation of oil during the six months ending Dec. 31, 1918, where such oil was not produced within the State of Pennsylvania.” (Nor is the defendant liable to pay the tax on gross receipts received from the transportation of oil produced within the State of Pennsylvania, but consigned to points beyond the State.)

24 — “Twenty-fourth. The defendant company is not liable to pay any tax on gross receipts received during the six months ending Dec. 31, 1918, for pumping oil for the National Transit Company, such service being an incident to interstate transportation.”

25 — “Twenty-fifth. The defendant company is not liable to pay any tax upon any portion of its gross receipts received for the transportation of oil as a franchise tax.”

26 — “Twenty-sixth. Judgment should be ordered in favor of the defendant, adjudging that the defendant is not liable to the Commonwealth for any tax on its gross receipts from the transportation of oil during the six months’ period ending Dec. 31, 1918, and that the tax on gross receipts charged for said period against the defendant be disallowed.”

The conclusions of law from the third to the twenty-sixth, inclusive, are in affirmance of the defendant’s requests for conclusions of law, excepting the third and fourth of such requests.

The Commonwealth’s second request for conclusion of law, and its similar requests from the fourth to eighteenth, inclusive, are declined. The defendant’s third and fourth requests for conclusions of law are declined.

And now, to wit, March 28, 1922, in accordance with the foregoing findings and conclusions, judgment is directed to be entered against the Commonwealth and in favor of the defendant company, unless exceptions be filed within the time limited by law.

From William Jenkins Wilcox, Harrisburg, Pa.


source: Caselaw Access Project

author: Bell, P. J.,

license: Public Domain

text:
    Davidson v. Davis, Director General of Railroads.

      Negligence — Railroads—Automobile—Father and son — Negligence of son imputed to father as owner.

    Where a father owns an automobile for the pleasure and convenience of his family, and permits his minor son to use the car for such pleasure and convenience, and the son, in so using: it, is grossly negligent at a railroad crossing and the car is injured, the negligence of the son is imputed to his father as owner.
    Motion for judgment for defendant n. o. v. C. P. Clearfield Co., Feb. T., 1921, No. 75.

      J. A. Gleason and J. C. Arnold, for plaintiff.

      James P. O’Laughlin, Louis R. J. Fenerty and Edward T. Kelley, for defendant.
    Jan. 16, 1922.
   Bell, P. J.,

This case was tried Dec. 12, 1921, and resulted in a verdict of disagreement. Upon the trial the defendant, by his twelfth point, requested binding instructions, to wit: “Under all the evidence in this case your verdict must be for the Defendant.” The verdict of disagreement was filed Dec. 14, 1921, and on the same day the defendant moved the court to have all the evidence certified and filed as part of the record, and that judgment be entered in favor of the defendant non obstante veredicto upon the whole record. The evidence shows that an automobile was owned by the plaintiff, and in May, 1919, was driven by his minor son, Thomas Davidson, to Blain City, and on his return, shortly after midnight, in crossing at grade the tracks of the Pennsylvania Railroad, the automobile was struck by a moving train and considerably damaged. The evidence as to the negligence of the defendant was not satisfactory, but was sufficient to carry the case to the jury, while the evidence of negligence on the part of the driver of the car was clear and unquestioned. The testimony showed, without dispute, that Thomas Davidson did not stop, look and listen before driving upon the railroad tracks, and, in addition thereto, showed utter want of any precaution upon his part. The plaintiff contended that, nevertheless, there should be a verdict in his favor, upon the ground that the relation of the owner and his son, with reference to the car at the time in question, was that of bailor and bailee, while the defendant urged that upon the face of the testimony the negligence of the son must be imputed to the plaintiff, and that he was, therefore, barred from recovery. The only evidence bearing upon this phase of the cause is that of the plaintiff himself and of his son. The plaintiff testified: “Q. Now, Mr. Davidson, the night that the boy took this car out, did he ask your permission to take it? A. Yes, sir. Q. And did you grant that permission? A. Yes, sir.” And on cross-examination stated: “Q. It was a pleasure car for your family? A. Yes, sir. Q. The convenience of yourself and family? A. Yes, sir. Q. And you and your son are the persons who drove it for the pleasure or convenience of your own family? A. Yes, sir. Q. Took as you pleased persons as guests, just as you pleased, is that right? A. Yes, sir.” The son testified: “Q. Under what arrangement with your father could you take the car out? A. Well, if I wanted the car I would go up and ask him if he was going to use it; if he said, no, he wasn’t going to use it, I would ask him if I could have it, and he told me yes, and if he wanted to use it he used it himself and I didn’t get it.” Referring to the night of the accident, the son testified: “Q. What passed between you and your father before you started out on this night or day? A. Nothing, only just I asked him for it, that was all. Q. You don’t recall how you asked him? A. Yes, I went up and asked him if he was going to use the car; I asked him, was he going to the wrestling match; he said he wasn’t; I asked him if-1 could have the car and he said, ‘Yes.’ Q. Did you drive other members of your family? A. Yes, whenever he didn’t want to go I would.”

That the negligence of a bailee for hire is not to be imputed to the bailor was determined in Gibson v. Bessemer & Lake Erie R. R. Co., 226 Pa. 198, and presumably the rule attaches to all cases of ordinary bailments. It is utterly impossible to reconcile the varying decisions in the several courts of last resort of the United States as to whether or not a person is liable who owns and maintains an automobile for the pleasure of his family, where a person is injured by the negligence of one of the owner’s family while using the car with the permission of the owner for the sole purpose of the pleasure of the user. There are some cases which hold that the mere relation existing between the owner and his minor child renders the owner liable; others, that the liability applies only where the use is with the general permission to use at pleasure; one or more hold that liability arises only where the user is not against the command of the owner; and others, that the liability exists whenever used by the express or implied consent of the owner, which amounts to the same thing. The general subject was before the Supreme Court in Crouse v. Lubin, 260 Pa. 329, in which the Supreme Court adopted the view stated in Berry on Automobiles, saying: “The rule is followed in most of the states in which the question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and family is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family. The defendant made it an element of her business to provide recreation and pleasure for her mother and was responsible for the car while in use for that purpose; her liability results from the fact that her car was being used for the purpose she had authorized, and it is not material who furnished the chauffeur. One who keeps an automobile for the benefit of his family is prima facie responsible for its management when in ordinary use for that purpose.” On the trial the court submitted the case to the jury on a narrow ground, saying: “Unless you further find from the weight of the evidence in this case that this ear was taken only by the son on this occasion, under special permission from the father, and that he was not ordinarily using it merely at his own pleasure, but solely under the special direction of his father, your verdict must be for the defendant.”

Upon a review of the matter and consideration of the subject, we are unable to see that it can make any possible difference in the liability of the owner that the use is done under a general authority to use at pleasure or a specific authority to use at the particular time of the accident. It has been our opinion that, where the use is against the command and direction of the owner, he cannot be held liable; but where the owner, knowing the proposed use by a member of his family, grants his specific permission to so use it for the pleasure and convenience of a member of his family, and the car is kept for such pleasure and convenience, the car is being used for the very purpose authorized by the owner, and this being in the line of the purpose for which the automobile is kept by him, and in its ordinary use for that purpose, he is responsible. The conclusion follows that at the time of the accident the driver of the car, who was the minor son of the plaintiff, was using the car for a purpose expressly authorized by the plaintiff, and in ordinary use for the purpose for which it was kept, and that the negligence of the driver is, therefore, imputed to the owner. Whatever may be the general weight of authority of the distinctions which may prevail, any conclusion other than stated would conflict with the spirit of Crouse v. Lubin, as well as the express language of the Supreme Court.

Now, Jan. 16, 1922, the court not being of the opinion that this case should be retried, certified all of the evidence taken upon the trial so as to become a part of the record, and upon such record judgment is entered non obstante veredicto in favor of the defendant. From John M. Grey, Clearfield, Pa.


author: Wagner, J.,

text:
    Kepner et al. v. Braun et al.

      Equity — Dissolution of partnership — Appointment of receiver.

    1. Three members of a partnership composed of thirteen persons, operating a taxicab business, filed a bill in equity ashing for the appointment of a receiver and the dissolution of the partnership. The grounds alleged were, that one of the three had been deposed as manager of the business of the defendant partnership, which would result in irreparable injury to the business, and that two of the defendant partners were engaged in practices which were illegal and were having a detrimental and ruinous effect upon the business: Relit, that neither ground warranted the appointment of a receiver or the dissolution of the company.
    2. The appointment of a receiver is the exercise of a power in aid of a proceeding in equity, and the court must be convinced that it is needful and is the appropriate means of securing a proper end.

      Evidence — Admissibility—Averments of bill.

    3. At the trial of an equity case, evidence will not be admitted to sustain vague and indefinite averments contained in the bill.

      Evidence — M ateriality.

    4. An allegation in the bill that members of a partnership are engaged in illegal practices does not furnish a sufficient ground lor asking for the appointment of a receiver for the partnership, and evidence to prove such an averment is immaterial, and, therefore, inadmissible. The remedy for illegal practices is not by a dissolution of the partnership, but by a criminal prosecution.
    Bill for dissolution of partnership. C. P. Berks Co., Equity Docket, 1921, No. 1300.

      Harry J. Dumn, for plaintiffs; Randolph Stauffer, for defendants.
    Nov. 21, 1921.
   Wagner, J.,

Findings of fact.

1. On or about June 6, 1916, the above-named plaintiffs and defendants entered in a copartnership to engage in a general taxicab business in the City of Reading, under the name of the Pioneer Auto Service.

2. The general conduct of the said partnership business was left in the hands of a manager, who was duly elected on or about Jan. 1st of each and every year.

3. On Jan. 15,1921, Charles B. Kepner, one of the within-named plaintiffs, was duly elected at a meeting, regularly called, as manager of the Pioneer Auto Service, for the term of one year next ensuing. He thereupon entered upon his duties as such manager.

4. On June 30, 1921, the within-named defendants held a meeting and appointed Clarence Haines, Arthur Hoover and William Egolf a committee to take over the management of the said Pioneer Auto Service.

5. Charles B. Kepner was deposed as manager of said business on account of dissatisfaction on the part of the defendants with the manner in which the said Charles B. Kepner conducted the business.

6. Clarence Haines, Arthur Hoover and William Egolf, of the aforesaid appointed committee, upon the discharge of Charles B. Kepner as manager, took charge of the management of the said business and prevented Charles B. Kepner from performing any of the duties of the office of manager.

7. On July 5,1921, the members of the above committee requested Charles B. Kepner to pay dues into the treasury, and upon his refusal to do so, took his name off of the list of members who were to receive calls.

Discussion.

The plaintiffs and the defendants in this case, in June, 1916, formed a general partnership for the purpose of carrying on a taxicab business. Charles B. Kepner, one of the plaintiffs, on Jan. 15, 1921, was elected manager for a period of one year. On June 30, 1921, the defendants, being dissatisfied with his management, asked for his resignation, and upon his refusal, removed him as manager of the company and appointed a committee of three of their membership to manage the business.

The plaintiffs aver that, because of the removal of Charles B. Kepner as manager, and the placing of the business in the charge of this committee, irreparable injury will be done to the business of the company; that the funds now in the hands of the treasurer may b'e dissipated, and that the plaintiffs will suffer great and irreparable loss.

Solomon Ulrich, one of the plaintiffs, is the treasurer of the company. He testified (N. of T., page 9) that at the time of the hearing, Sept. 7, 1921, there was in the treasury about $2800, and that, on July 1, 1921, when Kepner was deposed as manager, there was $2575.68 in the treasury. Therefore, instead of there being a dissipation of the funds by the change in management, there is a gain,

The only other ground alleged in plaintiffs’ bill for the appointment of a receiver and dissolution of the company is found in paragraph 10, where they aver that they have been informed, and verily believe, that two of the defendants, William Kosak and Clarence Haines, are engaged in practices which are illegal and which are having a detrimental and ruinous effect upon the business of the Pioneer Auto Service. At the hearing plaintiffs offered evidence to show that Clarence Haines was brought before a meeting of the members of the Pioneer Auto Service on the charge of selling whiskey illegally. The purpose, as stated by plaintiffs’ counsel, was to show that these illegal practices were being carried on, and that the matter was being noised abroad to the detriment or injury of the Pioneer Auto Service. To this defendants’ counsel objected: First, because it was not evidence in support of the alleged facts as contained in the bill; and second, because it was not material. We sustained the objection. The evidence was not admissible for both reasons. Paragraph 10 avers a conclusion. This averment is too vague and indefinite to receive thereunder evidence that said defendants were engaged in the illegal sale of liquor: The Real Estate Title Insurance and Trust Co. et al. v. The Allentown and Reading Traction Co. et al., 11 Berks Co. L. J. 189, 215. The evidence was also not material. The remedy for illegal practices, if such existed, is not by a dissolution of a company and the appointment of a receiver, but by a criminal prosecution.

There is nothing in either of the two grounds alleged in the bill that would warrant the appointment of a receiver and the dissolution of the company. “ ‘The appointment of a receiver is a remedy of purely equitable origin, having originated in the English Court of Chancery, where it has been employed from a very early time. It . . . grows out of the inherent power of a court of equity to afford relief where the remedies to be obtained in the courts of ordinary jurisdiction are inadequate:’ 23 Am. & Eng. Ency. of Law (2nd ed.), 1002; Kerr on Receivers (5th ed.), 1. ‘The jurisdiction exercised in the appointment of receivers has always been treated as a purely equitable one, and the remedy has been generally regarded, next to that of injunction, as the most efficient and salutary of the extraordinary remedies known to the courts of equity:’ High on Receivers (4th ed.), §41. ‘The appointment of a receiver is the exercise of a power in aid to a proceeding in equity. . . . The court must be convinced that it is needful and is the appropriate means of securing a proper end:’ Chicago & Allegheny Oil and Mining Co. v. U. S. Pet. Co., 57 Pa. 83, 91:” Power v. Grogan, 232 Pa. 387, 394-95.

Conclusions of Imo.

1. Plaintiffs are not entitled to the relief prayed for.

2. The bill must be dismissed, at the costs of the plaintiffs.

From Wellington M. Bertolet, Reading, Pa.


author: Ryan, P. J.,

text:
    Griffith v. Smith.

      Negligence — Automobiles — Statement of claim — Conclusions of law — Claim for damages — Practice Act, 1915.

    1. An allegation in a statement of claim that the operator of the plaintiff’s car was “a duly qualified operator of automobiles,” is not pleading a conclusion of law in violation of the Practice Act of May 14, 1915, P. L. 483.
    2. It is not necessary to allege in a statement of claim for damages resulting from a collision that the plaintiff’s car was licensed.
    3. To allege in a statement of claim, in an action for damages resulting from a collision of automobiles at the intersection of two country roads, that the defendant drove his car at an ‘‘illegal rate of speed,” is not pleading a conclusion of law in violation of the Practice Act of 1915.
    4. A claim for damages in an amount “upwards of $1000” is sufficiently definite to comply with the requirements of the Practice Act of May 14, 1915.
    Rule to strike off statement of claim. C. P. Bucks Co., Sept. T., 1921, No. 64.

      Harman Yerkes, for plaintiff; Boyer & Vanartsdalen, for defendant.
    Dec. 12, 1921.
   Ryan, P. J.,

The affidavit of defence sets up seven objections to the sufficiency of the plaintiff’s statement of claim. The first is that paragraph 3 avers that Thomas H. Amolé, who was operating the plaintiff’s car at the time of the alleged collision, was “a duly qualified operator of automobiles;” and the third, that it is not averred in the statement that he was licensed to operate automobiles. To say that one is a “duly qualified” operator may be reasonably construed as a statement of fact, that he was of the proper age and had had the prescribed five days’ experience, that he was acquainted with the mechanism of an automobile and had acquired skill in driving such a vehicle. The averment complained' of is not within the prohibition of the Practice Act of 1915. It is immaterial whether Amolé was at the time a duly qualified operator or a licensed driver, so far as plaintiff’s statement of his cause of action is concerned. If he were neither, the defendant would not be relieved of his duty in operating his own car. He owed the same duty of care, according to the circumstances, to an unskilled and unlicensed driver of another car that he would owe to any other operator of a car. The affidavit further objects that the statement in paragraph 2 charges that defendant drove at an “illegal rate of speed.” It appears by the statement that the parties’ cars collided at the intersection of two country roads. What is an illegal rate of speed at such a place is declared by the act of assembly relating to the subject to be a speed in excess of thirty miles an hour. The statement is, therefore, definite as to speed, and states a fact in this particular. The fourth, fifth, sixth and seventh objections raised to the statement are not well founded. The items of damage, i. e., the particulars of the injuries, are enumerated. The suit is brought for $1000. The plaintiff is not bound to go further than this and state the evidence by which he will prove his claim. If any of the items of injury are not clear, a question of the admission of evidence in reference to them may arise on the trial. We think the statement of claim is sufficient.

And now, to wit, Dec. 12, 1921, judgment is entered for the plaintiff on the questions of law raised by the affidavit of defence.

From Calvin S. Boyer, Doylestown, Pa.


author: Stewart, P. J.,

text:
    Vamos, to use of Adams, v. Tabachnick.

      Practice Act, 1915 — Statement of record of foreign judgment — Affidavit.
    1. Where the plaintiff’s cause of action is founded upon the record of a judgment in a court of a sister state, and the copy of the record, attached to, and forming a part of, the statement of claim, shows on its face personal service on the defendants, the statement is not defective, although the copy of the record attached does not contain copies of the promissory notes upon which the action in the sister state was brought.
    2. The plaintiff referred to in the 9th section of the Practice Act of 1915 is the legal plaintiff, who alone has the cause of action. Where the affidavit is made by another, his knowledge of the facts should be set forth in accordance with the doctrine of Krajnetz v. Milwaukee Mechanics’ Ins. Co., 29 Dist. R. 382; Corosu et al. v. Allegheny River Mining Co., 26 Dist. R. 379, and Savitz v. Massachusetts Bonding and Ins. Co., 26 Dist. R. 505.

      Assumpsit. Rule to show cause why statement should not be stricken from the record. C. P. Northampton Co., Sept. T., 1921, No. 92.

      Dallett H. Wilson and Edmund R. Castellucci, for plaintiff.

      George R. Booth, for defendants.
    Dec. 5, 1921.
   Stewart, P. J.,

This is a rule to show cause why the statement of claim should not be stricken off. The first reason is that the plaintiff’s cause of action is founded on the record of a judgment in a court of New York State, and that the record shows it was based' on certain promissory notes, and that the record of the judgment has no copy of the promissory notes attached to the same. That is not necessary. The statement has attached to it a duly certified copy of the record, and it shows personal service on the defendants in that suit. This court will not permit that record to be impeached, as it shows on its face jurisdiction of the defendants, and will not require anything to be added to it. The next reason is that the statement avers that execution was issued on a certain date, and that the record does not set forth copies of the execution and the return thereon. The Practice Act of May 14, 1915, P. L. 483, does not require a copy of every paper to be filed. The 5th section of the Practice Act of 1915 requires that: “Every pleading shall have attached to it copies of all notes, contracts, book entries, or a particular reference to the records of any court within the county in which the action is brought, if any, upon which the party pleading relies for his claim or defence, as the case may be.” Copies of records when relied on, and only then, are required, except when the court is in the county. The present cause of action depends upon the fact of payment of the judgment by the original defendants, Frank Vamos and wife. If they had paid the plaintiff in the judgment directly without the intervention of the sheriff, it would have been sufficient. The 2nd and 3rd paragraphs refer to the execution and to the date of payment, and that is sufficient. The third reason is that the statement of claim is not verified as required' by the Practice Act of 1915. That act requires that the statement of claim shall be sworn to by the plaintiff or some person having knowledge of the facts. The present suit is brought to the use of Harrington Adams, who is the use-plaintiff. He swears that he is the plaintiff in the foregoing cause of action, and that the facts set forth in the foregoing statement of claim are true and correct to the best of his knowledge, information and belief. It is true that he is the plaintiff, but he is the use-plaintiff and not the legal plaintiff. It is so well understood that the cause of action is in the legal plaintiff, and not in the use-plaintiff, that it is scarcely necessary to cite authorities. In C. H. Hardy Auto Co. v. Posey, 50 Pa. Superior Ct. 399, it was said, at page 403, as follows: “The suit being brought in the name of the legal plaintiff, his right alone is in question, and it may be recovered upon or defended against, as the defendant is not permitted to dispute the form of the action as presented by his record. A person for whose use a suit is brought need not show a right in himself; all that is necessary is to show the legal plaintiff’s right to recover. This suit being brought in the name of the legal plaintiff, with whom the defendant contracted, the judgment is an adjudication of the controversy: Adams v. Edwards, 115 Pa. 211; Guaranty Trust and Safe Deposit Co. v. Powell, 150 Pa. 16.” In the late case of Markee et al. v. Philadelphia, 270 Pa. 337, referring to a receiver who is the same as a beneficial plaintiff, Mr. Justice Simpson said: “Later, a receiver was appointed for the partnership, and was made use-plaintiff in the action; but since his rights rise no higher than that of the firm (Montgomery v. Cook, 6 Watts, 238; McKinney v. Mehaffey, 7 W. & S. 276; Guaranty Co. v. Powell, 150 Pa. 16; Com. v. Philadelphia, 193 Pa. 236), he need be considered no further.” The Practice Act of 1915 is mandatory. Every judge who has passed on it has so held. The affidavit in the present case is defective. It is not sworn to by the legal plaintiff, who is the one referred to in the 9th section of the act. In him, and him alone, is the cause of action. The use-plaintiff may be in the category that is referred to in the words “or by some person having knowledge of the facts.” The language of the act referring to affidavits of defence is identical with that used referring to the affidavit to the statement. When the pleader prepares the new affidavit, our opinion in Krajnetz v. Milwaukee Mechanics’ Ins. Co., 29 Dist. R. 382, and those of Judge Corbet in Corosu et al. v. Allegheny River Mining Co., 26 Dist. R. 379, and Judge Strauss in Savitz v. Massachusetts Bonding and Ins. Co., 26 Dist. R. 505, should be studied and followed. The mere averment of expectation of being able to prove facts on the trial should be avoided. Cases which approve of that averment are not approved of. The fourth reason is that the suit is brought to recover from the defendants their proportionate share of the judgment without disclosing what the proportionate share of the defendants is. The 7th paragraph of the statement avers that the pro rata share of the co-defendants’ debt, paid to the plaintiff in the payment under and by virtue of the said suit and judgment, is, etc. Coupling that averment with the figures given in the prior paragraphs, there is no trouble about the matter, and the legal presumption is that each of the defendants were liable to pay an equal part of the New York judgment. If the fact be otherwise, it is a matter of defence. Because of the defective affidavit, the rule will have to be made absolute.

And now, Dee. 5, 1921, rule is made absolute and statement is stricken from the record. Leave is granted to file a new statement within fifteen days from this date. From Henry D. Maxwell, Easton, Pa.


author: Van Swearingen, P. J.,

text:
    Mountain Water Supply Co. et al. v. Sagamore Coal Co. et al.

      Equity — Jurisdiction — Parties — Subject-matter of prior pending suit— Mines and mining — Contamination of waters — Multiplicity of suits — Multifariousness.

    1. In equity the pendency of a prior suit will not be a bar to a subsequent suit if the latter embraces more as to parties and subject-matter than the former.
    2. If all the matters and causes of action alleged in a bill in equity can be covered by one decree, the bill is not multifarious.
    3. In order to authorize the joinder of defendants in equity there must be some community of interest between them with respect to the subject-matter of the controversy. But it is sufficient if all have a common interest centered in the point in issue, or are interested in the general subject of the litigation.
    4. Numerous defendants operating coal mines, separately and independently of each other, in the drainage basin of a stream, and each draining the mine water from his or its mine, highly impregnated with sulphuric acid, into the pure waters of the stream above a storage dam, may be joined as defendants in a bill in equity by incorporated water companies owning the dam, to restrain the drainage of said mine waters into the stream, thereby rendering the waters of the stream, when they reach the storage dam, unfit for domestic use or for commercial or manufacturing purposes, to which uses the owners of the dam have been devoting them, on the ground that each of the mine owners co-operates in fact in producing the effect complained of by plaintiffs, and also on the ground of preventing a multiplicity of suits.
    Joint and several demurrer to a bill in equity. C. P. Fayette Co., in Equity, No. 1023.

      Paul H. Gaither, Smith & Best and Play ford & Phillips, for plaintiffs.

      Reed, Smith, Shaw & Beal, Crow, Shelby & Tabor, McDonald & Cray and John S. Brooks, Jr., for demurring defendants.
    Jan. 24, 1922.
   Van Swearingen, P. J.,

Broadly and generally speaking, it is alleged in the bill that the Mountain Water Supply Company, one of the plaintiffs, incorporated for the purpose of storing, transporting and furnishing water, and the Dunbar Water Supply Company, another of the plaintiffs, incorporated for the purpose of supplying water to the public in Dunbar Township, legally appropriated certain of the waters of Indian Creek, in Springfield Township, Fayette County, which waters are collected into a masonry storage dam of a capacity of 251,000,000 gallons and withdrawn therefrom by the two companies under an agreement between themselves; that the Pennsylvania Railroad Company, the other plaintiff, purchased and acquired the entire capital stock of each of the water companies for the purpose of enabling it to secure an adequate supply of water, and has constructed and maintains an extensive system of water facilities to conduct the water to points of consumption; that all the facilities of the three plaintiff companies are being used for the sole purpose of enabling them to utilize the waters of Indian Creek for their respective corporate purposes; that each of the thirty individual, partnership or corporation defendants claims to have acquired and to own a large area of coal, a portion of the coal of each of the defendants being within the drainage basin of Indian Creek; that each of the defendants has opened a mine or mines on his or its property for the purpose of mining and removing coal therefrom, all at points within the drainage basin of Indian Creek, and generally at an altitude higher than the thread of the stream, and has drained the mine water, highly impregnated with sulphuric acid, into the pure waters of Indian Creek; that it is the purpose and intention of the defendants to develop their respective mines, and that there thus will be liberated daily larger quantities of polluted and destructive mine waters which will flow into the waters of Indian Creek; that the waters of Indian Creek already have been injured, polluted and contaminated; that if the respective acts of the defendants be persisted in, the waters of Indian Creek soon will be polluted to such an extent as to render them utterly useless to the plaintiffs for the purpose to which the same have been and are being devoted and unfit for domestic use or for commercial or manufacturing purposes; and that the acts of the defendants, in so polluting the waters of Indian Creek, constitute an ever-increasing public and private nuisance.

In the twenty-ninth paragraph of the bill it is alleged that the plaintiffs have filed separate bills against ten of the defendants, but that none of those suits are at issue and none have been heard by the court. The thirtieth paragraph of the bill alleges: “That each of the defendants named in the preceding paragraph, in answering the said separate bills so as aforesaid filed against each, averred, inter alia,, as follows: ‘We deny that the waters of Indian Creek are or shortly will be, through any act of ours, polluted to such an extent as to render them useless to the Pennsylvania Railroad Company, or unfit for domestic use, or for commercial or manufacturing purposes,’ thereby contending, as your orators aver, that the plaintiffs are not entitled to the relief therein sought, unless the said alleged wrongful act of each defendant would alone pollute the waters of Indian Creek to such an extent as to render them unfit for use by your orators, said separate answers, however, not denying that the combined polluted waters from all the mines of all the defendants would render the otherwise pure waters of Indian Creek unfit for use by your orators.” The thirty-second paragraph of the bill alleges: “Your orators further aver that the injury to your orators by reason of the wrongful acts of the defendants herein complained of is the joint effect of the said wrongful acts of the defendants, which said wrongful acts were and are originally several, but are combined before the said polluted mine water reaches the said masonry dam from whence your orators obtain their supply of water, each for its proper corporate purpose. That the defendants, against whom separate bills have been filed, in their respective answers, claim a common right to discharge said polluted water into the channel of Indian Creek, and that the injury thus resulting to your orators from the said combined wrongful acts of all of the defendants is a single injury, and that all of the defendants have been, and still are, contributing to such injury. That the defendants herein, as your orators believe, are all the persons within the jurisdiction of this court who are now engaged, or threaten to engage, in the commission of the wrongful acts hereinabove complained of.”

Alleging that all of the said several defendants began to drain, and still continue to drain, the polluted waters from their respective -mines into the otherwise pure waters of Indian Creek, each of them well knowing that said polluted water flowing from said mines would, and did, commingle with the otherwise pure waters of Indian Creek at a point above said masonry storage dam, and each of them, with knowledge of such wrongful acts being committed by the others, continued in such wrongful acts with knowledge of the superior rights of the plaintiffs in and to the waters of Indian Creek; that should the defendants be permitted to persist in their unlawful acts, resulting in the pollution and destruction of the waters of Indian Creek, the investment, not only of the Mountain Water Supply Company and the Dunbar Water Supply Company, but that of the Pennsylvania Railroad Company, in dams, pipes, reservoirs and other equipment, will be practically destroyed and rendered of no value except as scrap, thereby entailing a loss in equipment amounting to more than $3,500,000 to the Mountain Water Supply Company, a loss of more than $7,500,000 to the Pennsylvania Railroad Company, and a loss of $80,000 and upwards to the Dunbar Water Supply Company; that, in addition to said loss, the operations of the Pennsylvania Railroad Company as a common carrier of passengers and freight would be necessarily and seriously interfered with, impaired and restricted; that the supply of water received by the plaintiffs from Indian Creek cannot be duplicated within any economic distance from the place where the Pennsylvania Railroad Company must receive its water for its corporate purposes; that the destruction of the waters of Indian Creek by pollution thereof with mine water would not only unlawfully deprive the plaintiffs of the natural and reasonable use of their property, but would greatly injure and hamper the public service of the Pennsylvania Railroad Company as a common carrier and deprive the inhabitants of the Commonwealth of the use of its large supply of pure water for domestic, commercial and manufacturing purposes; that the plaintiffs are not seeking relief in damages for past injuries, but only equitable relief, by restraining the commission of said wrongful acts by the several defendants in the future, to the end that in time to come each of the said defendants shall cease to contribute to the single injury to the plaintiffs, to wit, the alleged wrongful pollution of the waters of Indian Creek; that the plaintiffs, and each of them, need equitable relief, having no adequate remedy at law; that the continued and combined acts of the defendants complained of, if continued, will work irreparable injury to the plaintiffs and to the public and to the Commonwealth of Pennsylvania, and will interfere with interstate and intrastate commerce; that the maintenance of this bill against all of the defendants will avoid the prosecution of a multiplicity of suits; that the injury complained of is a single one to the plaintiffs, caused by the combined wrongful acts of all the defendants; and that adequate relief cannot be awarded to the plaintiffs by means of the prosecution of the said separate bills filed against the defendants; the plaintiffs pray that an injunction be granted restraining the defendants, and each of them, from discharging, pumping, or causing, or permitting to flow, or to be discharged, any drainage of mine water from the said mines, and from the mine or mines of each, into the waters of Indian Creek, or its tributaries, in Fayette County.

Three of the defendants, the Melcroft Coal Company, the Oneida Coal Mining Company and the Indian Creek Coal and Coke Company, have filed a joint and several demurrer to the bill, in which it is stated:

“(1) It appears by the twenty-ninth paragraph of the bill of complaint that the same plaintiffs have heretofore filed bills in equity in this court against these defendants, wherein the same alleged wrongs and causes of action are set forth and the same relief sought; and it further appears by said paragraph of the bill of complaint that said actions are pending and undetermined in this court, and these defendants respectfully insist that they cannot.lawfully be compelled to defend this suit while said other suits are pending.

“(2) It appearing by the bill of complaint that there is no combination, conspiracy, agreement or joint action between and among the defendants, the bill is multifarious.

“(3) As the bill does not allege that the circumstances under which each defendant is mining coal are the same, the bill is multifarious.”

1. Counsel for the demurring defendants, in their brief, urge upon the court that when “a prior suit is pending in the same court by the same plaintiffs against the same defendant, asking the same relief on the same state of facts in regard to the same property,” judgment should be given for the defendant upon his demurrer. But that is not this case. Here, the parties are not the same, there being thirty corporations, partnerships and individuals named as defendants, while in each of the separate bills filed against these demurring defendants respectively but one defendant was named. Nor is the relief sought in this bill based on the same state of facts as in each of the separate bills filed. True, in the separate bills it was sought to restrain each of the respective defendants from committing in the future the wrongful, unlawful acts alleged already to have been committed by them respectively, and it was denied in answer by each of the defendants named in the separate bills that the waters of Indian Creek had been, or shortly would be, through any act of theirs, polluted to such an extent as to render them useless to the Pennsylvania Railroad Company, or unfit for domestic use or for commercial or manufacturing purposes, and was contended by each of the defendants in the cases of the separate bills, as alleged in this bill, that the plaintiffs were not entitled to the relief sought unless the alleged wrongful act of each defendant would alone pollute the waters of Indian Creek to such an extent as to render them unfit for use by plaintiffs, in consequence whereof, in this bill, it is the averment that it is “the joint effect of the said wrongful acts of the (thirty) defendants, which said wrongful acts were and are originally several, but are combined before the said polluted mine water reaches the said masonry dam from whence your orators obtain their supply of water,” and the allegation that “the injury thus resulting to your orators from the said combined wrongful acts of all of the (thirty) defendants is a single injury, and that all of the (thirty) defendants have been, and still are, contributing to such injury,” upon which the prayer for the relief sought is based.

Counsel for the demurring defendants say in their brief: “The rule in Pennsylvania is no different from the general rule obtaining in the Federal courts and throughout the United States,” citing 1 Corpus Juris, 45-47, where it is said: “(1) It is a well-settled general principle of the law that the pendency of a prior action or suit for the same cause between the same parties in a court of competent jurisdiction will abate a later action or suit either in the same court or in another court of the same jurisdiction. The principle on which pleas of another action pending are sustained is that the law, which abhors a multiplicity of suits, will not permit a defendant to be harassed and oppressed by two actions for the same cause where plaintiff has a complete remedy by one of them. (2) As a general rule, the pendency of a prior suit in equity may be pleaded in abatement to the prosecution of a subsequent suit in equity in the same jurisdiction, between the same parties and upon the same equity; and the rules governing this ground of abatement are substantially the same in equity as at law, although they are applied in equity with some modification and with a more liberal discretion.” But in Massachusetts Mutual Life Ins. Co. v. Chicago & Alton R. R. Co., in the Circuit Court of the United States for the Northern District of Illinois, 13 Fed. Repr. 857, in an opinion written by Mr. Justice Harlan, of the Supreme Court of the United States, sitting as Circuit Justice, it was held, as stated in the second paragraph of the syllabus: “The pendency of a prior suit will not be a bar to a subsequent suit if the latter embraces more, as to parties and subject-matter, than such prior suit.” On appeal to the Supreme Court of the United States, under the title of Chicago & Alton R. R. Co. v. Union Rolling Mill Co., 109 U. S. 702, upon various assignments of error, the judgment of the Circuit Court was affirmed. And in Chicago, Burlington & Quincy R. R. Co. v. Weil et al., in the United States Circuit Court of Appeals, Eighth Circuit, 183 Fed. Repr. 956, Mr. Justice Van Devanter, of the Supreme Court of the United States, then sitting as Circuit Judge, after quoting what was said by Mr. Justice Harlan in the case last cited on the subject now under consideration, said: “We conclude that in equity the rule in respect of such pleas, although analogous to the rule at law, is not absolute or inflexible, but is a rule of justice, which is designed to be so administered as to prevent the oppression and unnecessary vexation of defendants, and yet to accord to complainants the right to pursue any remedy which is reasonably essential to their complete and adequate protection. And, applying this conclusion to the circumstances of the present case, we think the plea was not well taken and should have been overruled. Not only was the scope of the suit in the Circuit Court more extensive in its subject-matter and parties, but there was obvious propriety in directing it against all who were engaged in the concerted and combined violation of the complainants’ rights.”

Therefore, in the present case, because the scope of the bill now before us is broader and more extensive in its subject-matter and parties than any of the separate bills filed against the demurring defendants respectively, inasmuch as it is but justice to accord to the complainants the right to pursue the remedy which they believe to be essential to their adequate protection, yet not imposing oppression or unnecessary vexation on the defendants, but rather preventing a multiplicity of suits, and believing that there is very great propriety under the circumstances in directing the bill against all of the defendants named therein, especially in view of the answers to the separate bills heretofore filed, respectively, we are of opinion that the pendency of the separate bills against the demurring defendants does not constitute a legal bar to the maintenance of the present bill.

2. It is not necessary that there shall be a “combination, conspiracy, agreement or joint action between and among the defendants” in order to free the bill of multifariousness. “In order to authorize the joinder of defendants in equity there must be some community of interest between them with respect to the subject-matter of the controversy, otherwise the bill will be bad for multifariousness. But it is sufficient if all have a common interest centered in the point in issue, or are interested in the general subject of the litigation:” 21 Corpus Juris, 314. “There appears to be no positive or inflexible rule reconcilable with all the authorities as to what shall constitute multifariousness in a bill, but each case must in a great measure be governed by its own circumstances and much must be left to the discretion of the court. As the term multifariousness is understood to-day, it may be briefly defined as the improper joinder of distinct and independent matters in one bill. This definition contains the essence of the offence, but it embraces two distinct classes of multifariousness: (1) The simple joinder of distinct subject-matters in one bill, strictly known as misjoinder of causes; and (2) the joinder of distinct subject-matters in one bill against several defendants, some of whom have no interest whatever in one or more of the causes thus joined:” 1 Whitehouse’s Equity Practice, § 109. “The general rule is that all persons are to be made parties who are either legally or equitably interested in the subject-matter and result of the suit, however numerous they may be, if they are within the jurisdiction and it is in a general sense practicable so to do:” 3 Story’s Equity Jurisprudence (14th ed.), § 1981. “It may be said to be a general rule, and perhaps a sufficient test, that if all of the matters and causes of action alleged in the bill of complaint can be covered and completely settled by one decree, the bill is not multifarious, for in such a case it would have but one object which is satisfied by a decree:” Van Zile’s Equity Pleading and Practice, § 39. “The best authorities concur in the test, that the reason a bill is multifarious is in consequence of the joinder of distinct, independent and separate causes of complaint, requiring different defences and different decrees:” Cumberland Valley R. R. Co.’s Appeal, 62 Pa. 218.

The case which covers the present one probably the most completely of any of the decisions in the books is Woodruff v. North Bloomfield Gravel Mining Co. et al., in the Circuit Court of the United States for the District of California, commonly known as The Debris Case, 16 Fed. Repr. 25. The substance .of the decision is stated in the syllabus as follows: “(1) Several parties owning extensive mines at various points on the affluents of the Yuba River work them independently of each other by the hydraulic process, discharging their waste earth and other débris into the stream, whence it flows down into the main river, where the débris becomes mingled into one indistinguishable mass, passes on, and is deposited along the course of the river in the valley below, burying valuable lands and creating a public and private nuisance. A bill in equity by a party injured against all the parties thus contributing to the nuisance to enjoin it is not demurrable as being multifarious or for a misjoinder of parties defendant. (2) The parties thus creating the nuisance may be joined in equity, both on the ground that they co-operate in fact and actually contribute to the nuisance, the injury being the single result of the action of the débris combined, and operating together long before it reaches the place where the injury is effected; also, on the ground of avoiding a multiplicity of suits.” The defendants demurred to the bill on the ground that each defendant was pursuing its business, severally, without any connection with the others, and without any joint intent or joint action; that the cause of action was distinct and several as against each defendant, and neither the defendants nor the several causes of action could be joined in the same suit. In disposing of the case, Circuit Judge Sawyer said, inter alia: “It is true that each defendant is, independently, working its own mines without any conspiracy or preconcert of understanding or action with the others; but they all pour their mining débris into the several streams, which they know must, by the force of the currents, be carried down into the main river, where they must commingle into one indistinguishable mass long before they reach the point where the nuisances complained of are committed and the damages are created. This commingling of the débris discharged into the various streams by the several defendants, and passing on to work the destruction alleged — this aggregation of waste material, which, after aggregation, is precipitated upon the plains below and creates the nuisance — is the necessary and natural consequence of the action of the several defendants, and they must, respectively, be presumed to know and to contemplate these natural and known physically necessary results. The nuisance is created by the joint action of the débris from the various mines, which is combined, and afterwards flows on together long before it reaches the lands injured and threatened, and after such combination creates the nuisance complained of. There is, therefore, a co-operation in fact, if not in intent, of these several defendants in the production of the nuisance. The injury is the joint effect of acts originally several, but combined before the débris is precipitated upon the lands below and the injury is effected, and in contemplation, of equity it constitutes a single cause of action. There is a common interest in the right claimed to discharge débris into the stream. The defendants, each and all, claim a common though not a joint right. The final injury is a single one — a single result of the combined operation of this débris — and all the defendants co-operate in fact in producing it. No damages are sought. Only equitable relief is demanded by restraining future action — a future contribution by each to the nuisance.” And after citing authorities in support of the rule that “an equitable action will lie to restrain parties who severally contribute to a nuisance, while it holds that they cannot be joined in an aetion at law,” Judge Sawyer continued: “No inconvenience or additional costs can result to the several defendants in this suit from being joined with others, who also contribute to the same nuisance by originally independent action — action in its inception and first stages several, but ultimately co-operating to produce the nuisance. On the contrary, it is convenient to dispose of it in one ease, and the costs are diminished to each individual rather than increased by a single suit. The costs can be apportioned in equity, if proper, and the administration of justice is thus facilitated. In fact, it is the only adequate mode of proceeding in cases like this. ... I also think this bill maintainable against all the defendants on the jurisdictional ground of avoiding a multiplicity of suits. There is a common interest, a common though not joint right claimed, and the action on the part of all the defendants is the same in contributing to the common nuisance. The rights of all involve and depend upon identically the same questions, both of law and fact. It is one of the class of cases, like bills of peace and bills founded on analogous principles, where a single individual may bring a suit against numerous defendants; where there is no joint interest or title, but where the questions at issue and the evidence to establish the rights of the parties and the relief demanded are identical.” The case was before the court again on its merits, and is reported in 18 Fed. Repr. 753, and again on a proceeding for contempt for violation of an injunction granted, reported in 45 Fed. Repr. 129, but at no time were the principles above enunciated in any way modified.

In Norton et al. v. Colusa Parrot Mining and Smelting Co. et al., in the Circuit Court of the United States for the District of Montana, 167 Fed. Repr. 202, complainants, who were owners of farm lands, together with water rights belonging thereto, sought to enjoin the defendants, engaged in the operation of smelting plants for the treatment and reduction of ores, from impregnating, polluting and poisoning the waters of certain tributaries of the Deer Lodge River, from which stream the complainants obtained water for the irrigation of their farms and for domestic purposes. A separate demurrer to the bill was interposed by each of the three defendant companies, on grounds, inter alia, that there was a misjoinder of parties defendant, in that the acts alleged to have been committed by the defendants were not committed, or claimed to have been committed, in common or jointly by the defendants, but were separate and independent acts committed by each defendant. In disposing of the case on that point, District Judge Hunt said: “It is an established rule of equity that where several persons are alleged to have contributed, and are continuing to contribute, to the same general nuisance, on account of which complainants suffer, all such contributing persons may be joined as defendants.” In Morris v. Bean et al., in the Circuit Court of the United States for the District of Montana, 123 Fed. Repr. 618, there was a bill to restrain the diversion by defendants of the waters of a stream, preventing them from reaching complainant’s irrigating ditch, and it was claimed by the defendants that their diversions were separate and wholly independent diversions, that they were not joint, concerted diversions, and that, therefore, the action could not be maintained against them jointly, but that contention was overruled by District Judge Knowles, and an injunction was granted. In Ladew v. Tennessee Copper Co. et al., in the Circuit Court of the United States for the Southern District of Tennessee, 179 Fed. Repr. 245, where it was sought to restrain an alleged nuisance created by defendants by means of furnaces, smelters and ovens, which generated vast quantities of smoke and fumes, which inextricably mingled a short distance from their works and together were discharged upon complainants’ lands and forests, it was held, in an opinion by District Judge Sanford, that: “In a suit to abate or restrain a nuisance, as distinguished from an action for damages, all persons maintaining structures or carrying on operations whose effect mingles and combines in contributing to the injury to the plaintiff’s property may properly be joined as defendants, although each transacts his own business separately and independently from the others.” In Blaisdell v. Stephens, 14 Nev. 17, cited in The Debris Case, 16 Fed. Repr. 25, where the two defendants, Sessions and Stephens, each separately and independently of the other, allowed water to run from his lands upon the lands of the plaintiff, the combined action of which injured plaintiff’s ditch and constituted the nuisance complained of, it was held to be a proper case for an injunction, although there could be no joint recovery at law for the damages. In Lockwood v. Lawrence, 77 Me. 297, where several respondents, though acting independently of each other, deposited the refuse material and débris arising from the operations of their saw-mills into the same stream, whence, by the natural current of the water, it was carried down the river and commingled into one indistinguishable mass before reaching the complainant’s premises, it was held that this commingling of the waste thus thrown into the stream and which, after thus uniting and commingling, was precipitated by the current upon the premises of the complainant, creating the nuisance and inflicting the injuries of which he complained, was the natural and necessary consequence of the several and independent acts of the respondents; that whatever may have been the acts of the different respondents, either in the operation of their several mills or in the depositing of the waste and débris arising from such operations into the stream, there was a co-operation in fact in the production of the nuisance; that the claim thus to discharge the waste and débris from their mills into the stream constituted one common interest, though not a joint right; and that though the acts of the respondents may have been independent and several, the result of those several acts combined to produce whatever damage or injury the complainant suffered, and in equity constituted but one cause of action, and that all the respondents might be joined in the same bill to restrain the nuisance. “A riparian proprietor may maintain a suit in equity against several upper proprietors to restrain them, acting independently, from polluting the stream by depositing therein tanning refuse and filth, where the acts of all united and concurred in creating the nuisance and producing the injurious result:” Warren v. Parkhurst, 186 N. Y. 45, 78 N. E. Repr. 579. “A suit to abate a nuisance caused by the pollution of a stream by the operation of mills used in mining, owned and operated independently by several persons acting separately, is properly brought against all:” State ex rel. Federal Lead Co. v. Dearing (Mo.), 148 S. W. Repr. 618. To the same effect see, also, Draper v. Brown, 115 Wis. 361, 91 N. W. Repr. 1001; Merritt Township v. Harp et al. (Mich.), 91 N. W. Repr. 156; Graver v. Dodson Coal Co. et al., 20 Pa. C. C. Reps. 529; Anderson v. Lehigh Coal and Nav. Co. et al., 23 Pa. C. C. Reps. 343.

3. “The objection of multifariousness does not go to the merits and call upon the court to decide whether plaintiff has a case against any of defendants, but merely raises a question of convenience as to which the court is called upon to exercise its discretion:” 21 Corpus Juris, 411. “If the matter in litigation is entire in itself and does not consist of separate things having no connection with one another, it is not necessary that each defendant should have an interest in the suit coextensive with the claim set up in the bill. He may have an interest in a part of the matter in litigation instead of the whole:” Van Zile’s Equity Pleading and Practice, § 39. Indian Creek is the drainage stream of the valley or basin in which the coal properties of the defendants lie. Each of the defendants discharges mine water from his or its mine on the surface of the land in the water-shed tributary to the stream. The water is impregnated with sulphur, commingles with the pure waters of the stream, and these commingled waters finally reach the reservoir from which plaintiffs draw their water supply, and it is impossible to separate the waters or to ascertain from an analysis from which mine any given part or quantity of the sulphur comes. The injury to plaintiffs is complete when the waters reach the impounding reservoir. Each of the defendants contributes to what becomes a single injury.

And now, Jan. 24, 1922, for the reasons stated in the opinion herewith filed, the joint and several demurrer of the defendants, Melcroft Coal Company, Oneida Coal Mining Company and Indian Creek Coal and Coke Company, is overruled and dismissed. Prom Luke H. Prasher, Uniontown, Pa.