author: Per Curiam,

text:
    Miller v. Tice et al.

      Smith & Paff and John D. Hoffman, for plaintiff.

      B. C. Maueh, for defendants.
    Jan. 21, 1929.
   Per Curiam,

The trial judge directed a verdict for the plaintiff. The defendants filed a motion for judgment n. o. v. without assigning any reasons at all, and at the same time filed a motion for a new trial, assigning merely the formal reasons. Upon the argument additional reasons for a new trial were filed by the defendants. No objection was made to the filing of these additional reasons by plaintiff, but the practice is not to be commended, and is in direct violation of sections 192 and 193 of the Court Rules. As, however, the briefs in this ease, with one exception, seem to cover what was developed upon the argument, we shall treat the reasons as if they had been filed in time. The learned counsel for the defendants states his position in his brief as follows:

“Defendants contend that judgment non obstante veredicto should bé entered because:
“(a) The allegata and probata do not agree; and,
“(b) The claimant has not established a separate estate.
“That if the reasons for judgment n. o. v. should not prevail, a new trial should be granted because of the court’s errors in ruling out the testimony of plaintiff.”

The question as to the allegata and probata was first brought to the attention of the trial judge by an objection made after a number of witnesses had testified on page 98, and again on page 168, and the objections were overruled by the court. No plea of surprise was made. Thirdly: By a motion for a non-suit, assigning the variance as a reason therefor. We are unable to find that the question was raised in defendants’ points as asserted in the brief, but under the rule laid down by Mr. Justice Schaffer in Kehres v. Stuempfle et al., 288 Pa. 334, the defendants are not to be considered in default because they did not assign the variance specifically in their motion for judgment. What is the alleged variance? It seems to be that plaintiff declared that the date of her loan to her husband was May 31, 1925. The pleader, no doubt, had in mind the date when it appeared from the evidence that the bookkeeper had made an entry in the decedent’s book-account of May 31, 1925, Sallie E. Miller, $40,000, opposite to which are the letters “O K C. F. M.” It appeared that the actual date of the loan was in April, 1922, when Sallie Miller received a chgck for $40,000 from the State in the condemnation proceedings, which check was endorsed to her 'husband. That the date is immaterial appears from many authorities. We examined them all in Cardinal Dougherty v. Sulkin, 18 Northamp. Co. Repr. 376. That action was trespass, but in our opinion we referred to the authorities in criminal cases and also those in assumpsit. It is not necessary to repeat them here. They show that the date is immaterial. Plaintiff did not amend her statement, but preferred to stand upon it, and defendants, as we said above, did not plead surprise, probably for the reason that they could not have done so in good faith. Exhibit No. 10 shows specifically they knew the existence of this claim, and it could scarcely be asserted that they did not know that the $40,000 were the proceeds of the condemnation of the Pacific House, especially where they made an offer to prove by one of the executors why the Pacific House property was originally placed in Mrs. Miller’s name. We have examined the many authorities cited by the learned counsel for the defendants, and, in our judgment, they have no application to the present case. The reason for the rule is well stated in the syllabus of National Bank v. Lake Erie Asphalt Block Co., 233 Pa. 421, as follows: “The purpose of pleading is to form a clear and distinct issue for the trial of the cause between the parties. The statement should be sufficiently explicit to enable the defendant to prepare his defense. A plaintiff cannot file a statement which avers one cause of action and be permitted on the trial to prove a different cause of action. He must state the claim on which he will rely to recover so clearly and concisely that the defendant may be fully advised as to what he is called upon to meet.” There was no change in this cause of action, and the testimony which was admitted with respect to the entry referred to above was specifically eliminated from the case in the charge of the learned trial judge, together with other testimony. The trial judge relied entirely on the legal presumption that there was a loan of $40,000 by the plaintiff to her husband, and that that presumption was not rebutted by the defendants.

The second reason is that the plaintiff did not show that she had a separate estate. The position of the learned counsel for the defendants is that, before the plaintiff is permitted to recover, she must show that she had a separate estate independently of her husband; for illustration, an estate that she got by descent from her father or mother, or an estate that she had accumulated out of her separate business. His argument entirely overlooks the fact that a woman can acquire property by gift from her husband, and overlooks the presumption that when property is in her name it is presumed to be a gift from her husband. It was conceded on the argument that no rights of creditors were involved. The decedent possessed at the time of his death an estate worth $300,000, which will all go to his widow and heirs,. although at one time, the exact date not being given, he went into bankruptcy and received his discharge. Yet, when Mrs. Miller bought this property from the Marstellars on Sept. 29, 1902, he had no creditors. The consideration for her deed was $20,000. The agreement of sale showed two receipts from Sallie Miller, amounting to $1000. The balance was to be paid for in cash, and a mortgage for $5000. This mortgage was specifically paid off by the sale of a portion of the property to the Lehigh Valley Railroad Company. In 1921 the remaining property was condemned by the State, and Mrs. Miller was paid $40,000. In the condemnation proceedings Mrs. Miller employed Mr. Rupp and General Doster. The property was insured in the name of Mrs. Miller, and, according to the testimony of a daughter of Mr. and Mrs. Miller, Mary Meune, she was present when Mrs. Miller received the cheek for $40,000, and Mr. Miller asked his wife to loan it to him, as he needed it for business enterprises (page 98). Mrs. Miller agreed to do that if Mr. Miller would return it whenever she wanted it. Mr. Miller said, “All right” (page 99). In May, 1925, she testified that her mother said she would like to have the money back, as she was getting no interest on it, and her father asked her to let him have it longer, and he agreed to pay 6 per cent, interest. The exact words were: “I would like to have the money a little longer, as I need it and I will pay you 6 per cent, interest.” The testimony of the daughter was objected to, for the reason above given. The effect of this testimony showed that, as between Mr. and Mrs. Miller, Mrs. Miller had always been regarded as the owner of the property, and that the proceeds of the property took the place of the property itself. No one of the authorities cited by the learned counsel for the defendant is, on its facts, like the present one. As we said above, no rights of creditors were involved and Mr. and Mrs. Miller lived together in peace and harmony from 1902, when she bought this property, until the time of his death on Sept. 1, 1925. The first of his authorities (Moore v. Moore, 165 Pa. 464) was a controversy between a man and his wife. It appeared from the undisputed testimony, that the wife contributed a certain sum for the purchase of real estate and her husband the balance. The reason why the husband put the title in his wife’s name was undisputably shown by independent testimony. The wife also testified, and her testimony established the same fact, that the purchase of the real estate was a “joint enterprise.” The husband and wife had difficulties and separated. After the real estate was sold the proceeds were invested in the husband’s name with the wife’s consent. The master reported in favor of dismissing the bill for want of sufficient proof. The lower court overruled the master and held that the testimony was not sufficient to rebut the presumption that a gift was intended. The Supreme Court, after weighing the testimony, held that the lower court was wrong and entered a deeree giving the plaintiff the exact amount of money, with interest, that she had put in the enterprise. This case may have some bearing upon the question whether a new trial should be granted, but it does not support the proposition that the plaintiff must show that she had a separate estate. McConville v. Ingham et al., 268 Pa. 507, was a bill in equity. The plaintiff was a widow, ninety-two years of age. She sought to recover certain property in the defendant’s granddaughter’s possession. The granddaughter set up that it was a gift, and admitted that her grandmother was physically and mentally weak at the time of the transaction. The lower court overlooked that testimony and decided the case as if it was a gift between persons of sound minds and bodies. The sole question involved was as to where the burden of proof was, and the case has no analogy to the present case. Topley v. Topley’s Admin’rs, 31 Pa. 328, was a case where the wife did not claim as a gift from her husband, but claimed that the money was her separate estate, which she could not prove, and, as appears from the end of the opinion, her husband died leaving creditors. Johnston v. Johnston’s Admin’r, 31 Pa. 450, was an action by a wife against her husband’s estate. It appeared that she had received money from her father’s estate, part of which was paid before the Act of April 11, 1848, P. L. 536, and part was received after the act. The trial judge fell into error in answering a question of the jury. Mr. Justice Thompson, after the most sympathetic remarks as to the difficulty of a trial judge when suddenly called upon to answer a question propounded by a jury, proceeded to explain the difference between the two classes referred to. The case has no bearing on the present proposition. Winter and Hartman v. Walter, 37 Pa. 155, was an action of ejectment. The plaintiffs sought to recover property standing in the name of Mrs. Hartman, on the ground that it was not her property but her husband’s. The facts were very much involved, but it is very much manifest that whatever was said by Mr. Justice Strong in his opinion had reference to the fact that the rights of creditors were involved. The same may be said of Walker v. Reamy, 36 Pa. 410; Rhoads v. Gordon, 38 Pa. 277; Aurand v. Schaffer, 43 Pa. 363; Tripner et al. v. Abrahams et al., 47 Pa. 220; and Baringer v. Stiver, 49 Pa. 129; Hause v. Gilger, Admin’r, &c., of Hause, 52 Pa. 412. These eases were all decided under the old Act of April, 1848. Jack v. Kintz et al., 177 Pa. 571, was decided in 1896, after the passage of the Acts of June 3, 1887, P. L. 332, and June 8, 1893, P. L. 344. The Supreme Court held that these acts did not change the rules laid down in above cited cases, where the contest was between the wife and her husband’s creditors. In the case of a gift an entirely different situation is presented. The subject-matter, admittedly, comes directly from a husband, and goes to the wife, and the term “separate estate,” as discussed in above authorities, has no reference to the present case. It has been held in Thompson v. Allen, 103 Pa. 44, that “A conveyance of real estate by a husband directly to his wife by way of gift, if not in fraud of the husband’s creditors, will be sustained on equitable principles. In such ease it is immaterial that the property so conveyed is all or the greater portion of the husband’s property.” See, also, Westmoreland Guarantee Building & Loan Ass’n v. Thomas, 207 Pa. 513. It follows, therefore, that the motion for judgment n. o. v. by defendants must be denied.

Should a new trial be granted? Óf course, the trial judge could not be accused of error in not granting a non-suit. When he refused that, the case was open for the defendants to make their defense, which they proceeded to do, and it was incumbent on them to rebut the presumption that Mr. Miller was indebted to his wife. In Wormley’s Estate, 137 Pa. 101, the syllabus is: “The rule of law applicable in a case where a husband has received money which belonged to his wife is that the mere fact of such reception makes him her debtor, and no affirmative proof by the wife that he received it as a loan, and not as a gift, is required. The law presumes a loan from such a receipt of money, and, therefore, if it be alleged afterwards, whether by the husband’s heirs or by his creditors, that the money was received as a gift and not as a loan, the burden is upon those who make such allegation to maintain it by proof.” See, also, Hawley v. Griffith, 187 Pa. 306, and Loeffler’s Estate, 277 Pa. 317. The learned counsel for the defendants contends that “a new trial should be granted because of the court’s error in ruling out the testimony of plaintiff.” In other words, he contends that if the plaintiff had been permitted to testify, she would have given evidence that would have rebutted the presumption above referred to. It is not patent how that result would be reached, especially in view of the fact that the learned counsel for the plaintiff sought to have plaintiff’s testimony admitted in the case. The record with respect to this witness is so exceptional that it would almost seem as if counsel were bluffing with their various offers. The only consistent position was that taken by the learned trial judge, who held throughout that she could not testify on the ground of “public policy.” First, she was called (page 168) as a witness in her own behalf. Defendants’ counsel objected to her as incompetent to testify. That objection was sustained, and the exception was noted for the plaintiff. She was then called by the defendants on cross-examination. Plaintiff’s counsel asked for an offer of proof. The defendants’ counsel replied that as she was called on cross-examination, no offer of proof was required (page 261). Plaintiff’s counsel then objected to her testifying as to matters of a confidential nature which happened between her and her husband. The court sustained that objection and gave the defendants an exception. Defendants’ counsel called the plaintiff as his witness, and plaintiff’s counsel asked for an offer of proof. Then follows the offer (pages 262, 263, 264, 265, 266). Then, on page 267, plaintiff’s counsel’s objection is found.

The second reason is: “It is objected to that it pertains to a confidential communication between the husband and wife concerning what she alleges is her separate property and estate.” The court sustained that objection and gave the defendants a bill. Defendants’ counsel then offered to examine the plaintiff as to matters which occurred after her husband’s death between her and the executors, and no objection was made to that, and she was examined at considerable length about matters connected with this $40,000 claim after her husband’s death. No very satisfactory definition as to what communications are and what aire not privileged between husband and wife is to be found in the Pennsylvania decisions. In Wigmore on Evidence, § 2285, there is a discussion under the title “General Principle of Privileged Communications.” He said: “Looking back at the principle of privilege as an exception to the general liability of every person to give testimony to all facts inquired of in a court of justice, and having in view that preponderance of extrinsic policy which alone can justify the recognition of any such exception (ante, sections 2192, 2197), four fundamental conditions may be predicated as necessary to the establishment of a privilege against the disclosure of communications between persons standing in a given relation. (1) The communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.” On the next page, the author said: “In the privilege of communications between husband and wife, all four conditions are again present; and the chief variance of judicial opinion in defining the privilege (i. e., in holding, as some do, that the protection extends to all communications, or, as others do, to confidential communications only) is due to a question as to the fulfillment of the first condition.” That is to say, the test as between husband and wife must be that what was said between them will not be disclosed. Having that in mind, taking up the offer (page 262), what is meant by the following extracts: “Mr. Miller was at that time in the wholesale and retail business of huckstering green groceries and fish; that having prudent business reasons, he did not wish to take the title in his own name, but instead took title in the name of his wife, Sallie E. Miller; . . . that he continued in business, putting more property in his wfie’s name, became indebted, went into bankruptcy; that after his discharge some of this property was transferred by his wife to her husband,” and that with respect to the Pacific House property in suit, “the title still remained in the name of Sallie E. Miller, and the said Charles F. Miller permitted it to remain in her name, for the reason, as expressed by him to her and agreed upon orally between them, that the title should continue to remain in her so that if at any time the railroad company might need the balance of the property or the so-called hill-to-hill bridge was built, the biiilding of which at that time was already agitated, a jury of award would probably give a woman more money than it would give a man” (pages 264 and 265). Does not this show conclusively that these were privileged communications? If Mrs. Miller were permitted to testify to such things, it would show that she and her husband conspired to defraud his creditors; that she held his property when he went into bankruptcy and afterwards transferred it over to him instead of transferring it to his creditors, and that they were keeping the property because of the well-known fact that a woman could get more damages than a man in condemnation proceedings. Public policy imperatively demands that such a condition, even if it did exist, should never be disclosed to the public, and we think the authorities in Pennsylvania support this view. In Taylor’s Estate, 4 Dist. R. 691, Judge Penrose said: “The calling of the accountant for cross-examination by the exceptants had the effect, both under the decisions and the express provisions of the statute (Seip v. Storch, 52 Pa. 210; Act of May 23, 1887, P. L. 158) of removing all objections to her competency on the ground of interest. It did not, however, remove her disqualification, under section 5 of the act, with regard to confidential communications, and such, it would seem, was the character of the declarations as to the notes alleged to have been given for the accommodation of her husband — the decedent.” In Cornell v. Vanartsdalen, 4 Barr, 364, on page 374, Mr. Justice Rogers said: “But it is said to be against the policy of the law to permit a wife to testify for or against the estate of her deceased husband; that parties are excluded from being witnesses for themselves, and that the same rule applies to husband and wife, neither of them being admissible as a witness in a cause, civil or criminal, in which the other is a party. The exclusion is founded partly upon the identity of their legal rights and interests and partly on the principles of public policy. And neither is it material, in some cases, that this relation no longer exists. The great object of these rules being to secure domestic happiness by prohibiting confidential communications from being divulged, the rule is the same to that extent, even though the other party “is no longer in being or has even been divorced and married to another person. The rule is the same in its spirit and extent as that which excludes confidential communications made by a client to an attorney. And in analogy to this rule, it is held that the wife, after the death of the husband, is competent to prove facts coming to her knowledge from other sources, not by means of her situation as wife, notwithstanding they relate to the transactions of her husband. The prohibition, where she is a competent witness, being divested of all interest, extends to confidential communications alone, or such as come' to her knowledge from her domestic relation.” In Hitner’s Appeal, 54 Pa. 110, the syllabus is: “Husbands and wives cannot give evidence for or against each other of anything that has come to their knowledge through the confidence of the marriage relation, though the other party were not living. The wife was, therefore, incompetent to prove cohabitation after the separation.” On page 117, Mr. Justice Read cites many of the authorities on this subject, both in England and in other states, and approves what we have quoted above from 4 Barr, 374. See, also, Robb’s Appeal, 98 Pa. 501. In Brock & Co. v. Brock, 116 Pa. 109, the plaintiff was the wife of Martin Brock, a partner in the firm of M. Brock and Company. She was called to prove that she loaned money to the firm, and that her husband promised to repay it with interest. After the loan, the parties were divorced. The lower court, against the objection that this was a privileged communication, permitted her to testify, Mr. Justice Mereur saying: “The plaintiff below was not competent to testify to a matter of a confidential nature which occurred between her and her husband during the existence of their marriage relation, although she was divorced before she testified.” It is further contended that the right of objecting to the wife on the ground that the communications were privileged was personal to the decedent, and that the defendant’s executors have the same right to waive the privilege that the decedent would'have had, and that when they called her, it was a waiver. No case has been cited in support of that position, and it is doubtful whether any such authority exists. As the cases above cited show, the basis of the decision rests upon public policy, and the objection could not be waived. In fact, Mr. Justice Stewart, in a case that we have in mind (the volume and page cannot now be given), expressly said that, even if counsel did not object to the witness testifying as to privileged communications, it was the business of the court to object. In our judgment, the whole offer was properly excluded on the ground of being a privileged communication. If, however, some of it was proper and some not, it was not the business of the court to separate that which was admissible from the inadmissible: Evans v. Evans, 155 Pa. 572; Jacoby v. Insurance Co., 10 Pa. Superior Ct. 171; Com. v. Auerbach, 71 Pa. Superior Ct. 54; Electric Storage Battery Co. v. Sechrist, 86 Pa. Superior Ct. 477; Ickes v. Ickes, 237 Pa. 582. In Hunter v. Bremer, 256 Pa. 257, Mr. Justice Moschzisker said: “When evidence offered is relevant in part only, the court is hot bound to separate the good from the bad, but may reject it as a whole: Smith v. Arsenal Bank, 104 Pa. 518, 521; Evans v. Evans, 155 Pa. 572, 577; Mease v. United Traction Co., 208 Pa. 434, 436.” That case was followed in Justice v. Watkins et al., 276 Pa. 138. If, therefore, the entire offer of proof was incompetent on the ground of privileged communication, or if any part of it was incompetent on that ground, and as to that part, the quotations above from the offer conclusively show that part to be privileged, what is there in this case to rebut the presumptions of law and to require the submission of the case to a jury? A presumption of law, until it is overthrown, is equivalent to evidence offered on one side and a failure of the other side to put in any evidence at all. In Mahon’s Estate, 202 Pa. 201, which was affirmed by the Supreme Court on the opinion of President Judge John Stewart, a case not like the present one on its facts, but where a husband had collected income from his wife’s real estate, and where, as the judge said, an auditor had not found the facts, except a few, the judge said the case was to be decided on presumption. He said, on page 203: “Limited to these meager facts, it is easy to see how a strictly legal determination of the case may not accord with the actual merits; for, as the case is thus presented, it resolves itself into a question of what the law will presume from the transaction, whether a gift of this income to the husband, or a relation of debtor and creditor, with respect thereto. Neither side has offered any evidence to overcome a presumption adverse to its own claim, and it follows necessarily that to lead in the start is to win in the race. We take the case as it is presented.” On page 205 he said: “By the course of the evidence on both sides, the case is made to turn on presumptions which the law raises from the transaction, and we are of opinion that these presumptions leave Mr. Mahon a debtor to his wife’s estate to the amount of income he is shown to have received.” In Richards v. Walp, 221 Pa. 412, a case as to the presumption of payment of a debt, Mr.- Justice Fell said: “The debt sought to be recovered was due and demandable twenty-six years before suit was brought. The presumption of payment arose at the end of twenty years, and it had increased in strength each succeeding year afterwards. The burden of overcoming it was upon the plaintiff, and the sufficiency of the evidence offered was for the court: Reed v. Reed, 46 Pa. 239; Beale’s Exec’rs v. Kirk’s Admin’r, 84 Pa. 415. ‘In a case like this, the defendant stands upon a presumption of law, which is binding alike upon the court and jury until invalidated by proof, and the plaintiff in rebuttal upon a presumption of fact only, which he claims to arise out of the evidence; whether or not the matters sought to be established' are true is a question for the jury, but whether the facts and circumstances relied on, if true, would legitimately give rise to the presumption of fact referred to is necessarily a question of law for the court:’ Gregory’s Exec’rs v. Com., 121 Pa. 611. This presumption is equal to direct proof of payment (Sellers v. Holman, 20 Pa. 321), and it will prevail until overcome by direct proof of non-payment or the proof of facts and circumstances from which non-payment may be clearly inferred.”

After carefully reading the testimony in this case, we are satisfied that the verdict as directed by the court was a proper one. While executors, especially where creditors’ rights are involved, should protect the estate by defending the claims made against a dead man’s estate, such as claims which are made by servants and nurses, who are presumed to be paid at stated intervals, yet where the estate is a very large one and the exact sum received by the wife can be traced with the certainty that it was traced in this case, and the real estate, which was the source of the fund, has remained so long in the wife’s name, when she did get the money from the State and gave it to her husband, it was the strongest kind of a presumption that she was handing it to him as a loan, and we should think that the executors would be satisfied with the protection of a directed verdict by the court. Under these circumstances, there is no equity in asking that a new trial should be granted on the facts of the case. If it should be granted, it would have to be solely because there was error in the trial, and we have not been able to find any.

And now, Jan. 21, 1929, motion for a new trial is refused, and rule discharged. Motion for judgment non obstante veredicto by the defendants is refused, and rule discharged, and judgment is directed to be entered on the verdict in favor of the plaintiff upon payment of the jury fee, and the evidence taken upon the trial is certified and filed and made part of the record.

From Henry D. Maxwell, Easton, Pa.


source: Caselaw Access Project

author: Shanaman, J.,

license: Public Domain

text:
    Rhoads v. Central Taxicab and Transfer Company.

      E. H. Deysher, for plaintiff and rule; P. H. Beigner, contra.
    Feb. 4, 1929.
   Shanaman, J.,

Plaintiff sued defendant for damages for death of plaintiff’s husband. In the City of Reading, Fifth Street and Washington Street intersect, Washington Street running east and west, and Fifth Street north and south. The intersection is a busy and contral one, with single trolley traffic straight on both streets, and trolley traffic also from Washington Street turning south into Fifth Street. There are traffic lights with a police officer in charge.

At about 5 P. M. a trolley car was standing on Washington Street west of Fifth Street, at the intersection, taking on and discharging passengers. The conductor had given the signal to proceed, and the motorman was waiting for the traffic lights, which were against him, to change, so that he could proceed east on Washington Street across Fifth Street. At the same time there was a line of automobiles at the intersection on the south side of Washington Street west of Fifth Street, between the trolley car and the south curb of Washington Street. They were standing parallel with and headed in the same direction as the trolley car, and were likewise awaiting the change of lights to permit them to move ahead. Defendant’s automobile was the first in the line. The trolley was eight or nine feet west of the crossing for pedestrians, which runs north and south on the west side of Fifth Street, across Washington Street. Defendant’s automobile was standing at the traffic line, somewhat back of the front of the trolley car. Behind it in the line was another automobile along the side of the trolley car, and behind that automobile was a third automobile, which stood about five feet back of the trolley car. The police officer changed the signal to green, which was the “Go ahead” signal for the trolley car and the automobiles alongside it. After the signal changed, plaintiff’s decedent stepped off the northwest corner curb of Fifth and Washington Streets down into the street, and started to walk south across Washington Street along the foot-crossing, behind which the trolley car and the three automobiles had been waiting. This fact, which was submitted to the jury for determination, appears, however, to have been absolutely established by the testimony of the motorman and the traffic officer, plaintiff’s witnesses, and is uncontradicted. Just after the signal changed, the plaintiff’s decedent stepped off the curb. As he did so, the motorman gave two taps of his bell and started the car. The three automobiles also started, all four vehicles rolling forward toward the crossing at the rate of three to five miles an hour. Decedent, without looking right or left, and without looking at the trolley car, but looking straight ahead, kept walking on, and the trolley car had gone about six feet, and was about two feet from the crossing, when the motorman, seeing that the decedent was stepping on to the track in front of the moving trolley car, and still without looking at it, tapped his bell again and stopped his car. Then, for the first time, decedent appeared to notice the trolley car; he glanced at it, quickened his step, hurried across the track, stepped into the portion of the street south of the track and started to cross it. This all happened very quickly, and in the same space of time the line of automobiles had been moving with the trolley car toward the crossing. Defendant’s automobile was about even with the front of the trolley car, or a little behind it, and' when the trolley car suddenly stopped, and decedent took several steps in front of defendant’s automobile, it struck him. Defendant’s automobile, after striking decedent, halted within about its own length and stopped upon the crossing, with its front end about at the western curb-line of Fifth Street. The trolley car was still motionless. Defendant’s automobile was running at the time about a foot south of the trolley car. There was no traffic moving west on Washington Street at the time. The facts above set forth were the plaintiff’s ease. Defendant moved for a compulsory non-suit, which the court refused. The case was submitted to the jury, who found for the defendant. Plaintiff has taken a rule for a new trial.

“From the mere happening of an accident, no presumption of negligence arises, and drivers are not to be held liable where their only proven fault is inability to avoid a collision, under circumstances which are unusual and not likely to be anticipated. Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to apprehend the situation and act according to the exigency:” Bloom v. Bailey, 292 Pa. 348, 353.

In the present case the motorman, it is true, stopped in time to avoid the decedent, but he saw the pedestrian approaching at a walk across Washington Street. Defendant’s driver could not, and did not, see the pedestrian till he, with hurried steps, appeared in his path, and did stop within the car’s length. “While a chauffeur at public crossings must have his car under such control as to be able to stop on the shortest possible notice, he is not required to drive so he can stop instantly:” Twinn v. Noble, 270 Pa. 500, 503. In the case of McAteer v. Highland Coffee Co., 291 Pa. 32, there was a parked automobile to defendant’s right, against the curb, and extending ten feet into the roadway. Defendant drove along on the right side of the street as plaintiff started to cross the street from defendant’s right to defendant’s left, over a paved foot-way. The decedent in that case ran out from the back of the standing automobile, at the same time adjusting his coat with his right hand and, without stopping, stepped into the track of the approaching automobile, which hit him. The driver of the defendant company saw him first when he appeared from in back of the parked automobile. There was no evidence as to whether the decedent in that case looked, or did not look, for traffic. The driver stopped within a few feet. The Supreme Court sustained a refusal to take off a non-suit. The only difference between that case and the present case is that in the present case the decedent may have taken a step or two more than in that case before being hit. The present case, however, is not one in which the defendant was 100 or more feet away at a time when he could have seen the decedent. The testimony is, in fact, that he was only a few feet back of the front of the trolley car when he started. If, however closely decided, the present case was for the jury on the question of defendant’s negligence, and this is not free from grave doubt, we are, nevertheless, of opinion that the defendant was entitled to a compulsory non-suit on the ground of decedent’s contributory negligence.

It will be'observed that decedent stepped into a street (Washington Street). which had just been thrown open by the traffic officer in charge thereof for east and west traffic, and in the face of a contrary signal started to cross from north to south, entirely ignoring the two taps of the motorman’s bell, which constitute a loud and easily audible warning; ignoring, also, the very forward movement of the car itself, and looking neither to the right nor to the left, he continued across, and actually thrust his body into the path of contrary-moving traffic, to wit, the trolley car, at a time when the moving car, still in motion, was within two feet of his path. No vehicle meanwhile was coming west on the north side of Washington Street, and he could readily have halted or could have retraced his steps to the north curb. As he set foot upon the trolley track, the motorman again tapped his bell and suddenly stopped the car. Decedent then, for the first time, appeared to notice the car, and, quickening his step, hurried across the track. He could certainly have stayed in front of the car till the signal again changed. He could have stepped at least partly off the track and, we think, in all probability, entirely off it and allowed the automobiles, which were all in motion and almost upon him, to pass before he completed his journey. Instead, he hurriedly stepped from in front of the trolley car. and thrust his body in front of a stream of moving traffic which was almost upon him. The evidence is clear that he did not look prior to the time when he was nearly run down by the trolley car, and recklessly had thrust himself into that manifest imminent danger. The evidence is indisputable that he was saved then, not even by the motorman’s last signal, or by any care exercised by the decedent himself, but by the motorman’s being able to stop his car. The case is not one wherein the pedestrian, walking in obedience to signal on a foot-crossing, observes a car approaching the foot-crossing on the near side to it and continues his journey in the face of the closely approaching vehicle. In such case, the pedestrian, having the signal, knows that cars approaching without the signal commonly draw close to the foot-crossing and there halt, and he is not bound to expect that he is in any danger from such approaching car: Wack v. P. R. T. Co., 93 Pa. Superior Ct. 206, 208.

In the case of Anderson v. Wood, 264 Pa. 98, the court said, at page 101: “It was not necessary for the appellee to show that Anderson, who is now dead, looked from right to left after he left the sidewalk. She is entitled to the presumption that deceased did that which a prudent man would do under the circumstances, and that he continued to do so until the accident took place. Having, without fault on his part, committed himself to the act of crossing, it became the duty of appellant to so control his car as to do no injury to the pedestrian, who was on the cartway a sufficient length of time to be seen, the driver of the car being far enough away to bring his machine under control. This the driver did not do, and his neglect caused the accident.” But in that case, “when Anderson, the man who was injured, was seen in the cartway, the appellant’s automobile was more than 100 feet away from him, approaching on the side of the street Anderson was then crossing. No machine or vehicle was between the driver of the car and the pedestrian; each had an unobstructed view:” Id., 100. Thus, too, in the case of Fish v. Stulb, 274 Pa. 87, where the court held the question of contributory negligence to be for the jury, defendant’s car was 115 feet away when plaintiff started to cross ten or eleven feet of roadway.

In the present case, the view of defendant’s automobile and of the pedestrian was obstructed by the trolley car. Defendant’s automobile was not more than fifteen feet from the crossing before it started, and was almost even with the trolley car when the trolley car stopped. Nor is there room here for the presumption that decedent was “without fault on his part,” in the face of plaintiff’s evidence that he was at fault. While there is no positive testimony that he looked, or did not look, after leaving the car tracks, there can be no favorable presumption in his case such as existed in the case of Anderson v. Wood, supra,, because of the established fact that he negligently walked into the path of the approaching trolley car, and then quickened his step and hurried across. Decedent, therefore, is not within the rule of Twinn v. Noble, supra, 503, that “where ... a pedestrian, without negligence on his part, has committed himself to the crossing, he has the superior right of way as against a vehicle thereafter approaching.” Decedent is rather in the position of the plaintiff in the case of Weaver v. Pickering, 279 Pa. 214, who “seemed oblivious to danger, and chose to walk by faith across a busy city street; in so doing, he assumed the risk:” Id., 216. “People are not entitled to walk the streets with closed eyes and inattentive minds. Even on a city street a man must heed what he is doing and where he is going, or he cannot complain of the consequences. This is the rule even on the sidewalk (Robb v. Connellsville Borough, 137 Pa. 42), and when he steps into the cartway, he is equally bound to remember that horses and vehicles have also a right of way there, to which he must give due attention, or he will be barred of complaint as to the consequences:” Id., 216. “The rights of pedestrians and vehicles at public crossings are equal; each must exercise care according to the circumstances. True, more care is required of pedestrians between crossings and of automobiles at crossings; yet each must observe ordinary care at all times:” Twinn v. Noble, supra, 503.

If it could be assumed that decedent did look before leaving the car tracks, he tested a known and imminent danger by hurrying across a stream of moving traffic within a few feet of him, when he could with entire safety have stood in front of the trolley car. “Where a person assumes a position of danger when there is another safe place to which he may go, and by reason of this position is injured, ordinarily there can be no recovery against another who may be negligent,” the injured person’s position in itself being a contributing cause: Robinson v. American Ice Co., 292 Pa. 366, 369.

Though we are of ’ opinion that defendant was entitled to a compulsory judgment of non-suit, we have considered plaintiff’s reasons for a new trial. Plaintiff presses but one point, namely, that the court erred in charging: “You will understand that, even though the plaintiff’s decedent was lawfully on that crossing, he was bound to use his eyes and senses and keep a sharp lookout for danger and traffic when crossing a busy city street intersection such as Fifth and Washington Streets, in the City of Reading.” This portion of the charge must be read in connection with its immediate context (Cornelius v. Central Acc. Ins. Co., 218 Pa. 532; Ludwig Piano Co. v. Browne, 33 Pa. Superior Ct. 81), and the whole charge in a trial by jury must be considered with reference to the issuable facts given in evidence at that trial: 38 Cyc., 1621. The court immediately followed that portion of the charge with the following language: “If you find that he went across the crossing in a careless and negligent way, not having a proper regard for traffic conditions about him, and that such negligence on his part contributed to the happening of this accident, then you would be entitled to find him guilty of contributory negligence, and he could not recover damages.” The court also had already said that “negligence is defined in the law as the absence or want of due care under the circumstances; it is the doing of something which a reasonably prudent man would not have done under the circumstances, or it is the failure to do something which a reasonably prudent and careful man would have done under the circumstances,” and had also said: “And if, while he has that signal to go, the pedestrian steps down on to that crossing, he is then out in the street where the vehicles travel, and he is lawfully there, he is lawfully on that crossing, and he has a right to proceed with due care under the circumstances to cross that street and get out of the danger which one is in when one is on a street. If the signal changes while he is crossing the street, he is still lawfully on the crossing; he still has the right, using due care under the circumstances, to proceed to get off that street by crossing, if he can with due care accomplish the crossing.” The charge, however, even the objected portion thereof, appears to us to have been a proper statement of the duties of the pedestrian under the circumstances of this case. In Mooney v. Kinder, 271 Pa. 485, the court said that “in making the crossing, she had to be observant, not only of traffic on Graeme Street, but, in addition, of that coming into Graeme Street from three other directions:” Id., 487; and also said: “Plaintiff’s observation could not be confined alone to the street on which defendant was approaching — she was bound to take account of traffic coming three other ways:” Id., 488. In Mantia v. Pearlman, 91 Pa. Superior Ct. 478, the court said, at page 482: “They (two pedestrians) had to be on the lookout for traffic in six directions . . . and also had to be observant of traffic from Liberty Avenue. . . . The plaintiff could not, therefore, devote her attention exclusively to the traffic in any one direction; she was required to be watchful of the traffic moving in other directions as well.” If a pedestrian “has to be observant,” if he “is required to be watchful,” if he “has to be on the lookout,” these phrases necessarily imply “the use of his eyes and senses.” A jury is in fact more likely to comprehend the concrete than the abstract terms, and it should be observed that the Supreme Court, in the case of Weaver v. Pickering, supra, spoke of “closed eyes and inattentive minds,” and used the phrase “must heed what he is doing and where he is going,” and also spoke of “due attention.” The use of the word “sharp” by the court was in no way the equivalent of saying “a high degree of care,” much less of saying “a very high degree of care,” and in no way departed from the standard of “reasonable care under the circumstances,” as previously charged by the court. The word “sharp” was at least legitimate under the circumstances of the case, as hereinabove at length described. “Regard must be had to the locus of the accident and to the condition of traffic at that point:” Mantia v. Pearlman, supra, 481. “It was his duty to look for approaching vehicles and otherwise exercise such care for his personal safety as the situation demanded:” Fish v. Stulb, supra, 90. “We believe, however, for the reasons hereinbefore suggested — though the matter is wholly foreign to the present case — that justice would be better administered, and incidentally a better citizenship result, if juries were specifically told what were the duties and liabilities of the parties, without laying stress on the words ‘great,’ ‘ordinary’ or ‘slight,’ at the same time telling them why the law is so:” Cody v. Venzie, 263 Pa. 541, 546.

Nor does a consultation of the dictionary lead to any other conclusion. The New Century Dictionary (1927) defines “watchful” as “vigilant, or alert; closely observant.” It defines “look-out” as “the act of looking out, a watch kept, as for something that may come.” It defines “sharp” as “vigilant or attentive.” There is no difference between saying that a pedestrian must be “closely observant,” or “alert,” or “watchful,” and saying that he must keep an “attentive” or a “sharp” look-out. These phrases are all synonymous, substantially identical in meaning. While each possesses, from a literary point of view, its own subtle flavor, which may recommend it to the stylist for preference in a particular passage, no one of them more than any other, and none of them at all, would convey to a jury that there was a legal requirement of very great care, over and beyond the reasonable care demanded in fact by the circumstances of the case. “Nor do we understand or believe that the jury” so understood it: Com. v. Fink, 93 Pa. Superior Ct. 57, 60. The verdict was for defendant, and we have no motion for judgment n. o. v. Ruling, therefore, simply upon the motion before us, we are of opinion that neither the weight of the evidence nor the charge of the court warrants a retrial.

And now, to wit, Feb. 4, 1929, plaintiff’s rule for a new trial is discharged.

Prom Charles' K. Derr, Reading*, Pa.


author: Wickersham, J.,

text:
    King v. City of Harrisburg et al.

      Carl B. Shelley and William S. Middleton, for plaintiff.

      John R. Geyer and Paul G. Smith, for defendants.
    Jan. 14, 1929.
   Wickersham, J.,

Chancellor,

This case came on to be heard on a motion for a preliminary injunction. After hearing the evidence, we filed an opinion refusing to award a preliminary induction, whereupon an appeal was taken to the Supreme Court. Thereafter it was agreed by counsel that the appeal should be dismissed and that the action should proceed to final hearing, and, upon consideration of this stipulation of counsel, the appeal was dismissed by the Supreme Court and the record remitted to this court for final action.

The case then proceeded to final hearing. After the testimony was taken, it was argued at great length by counsel for the plaintiff and by the City Solicitor. 'Requests for findings of fact and conclusions of law were presented to the chancellor, which we have answered and directed to be filed.

After careful consideration, we present the following

Findings of fact.

1. Horace B. King, the plaintiff, is a resident and taxpayer of the City of Harrisburg, County of Dauphin and State of Pennsylvania.

2. Prior to Dec. 8, 1919, the McKee Graham estate owned approximately 100 acres of undeveloped land lying in the City of Harrisburg north of Division Street and between Front and Sixth Streets.

3. Prior to 1875, certain highways had been regularly plotted on the official plan of the City of Harrisburg over and upon this tract pursuant to the Act of Jan. 2,1871, P. L. 1556, ratifying and confirming the streets laid out within the city and one mile northwardly thereof by virtue of the authority conferred by the Act of April 9, 1869, P. L. 771.

4. The public highways thus plotted on the City Official Plan over and upon the McKee Graham tract prior to 1875 were as follows: Juniata Street, running from the intersection of Front and Division Streets northeastwardly in a diagonal line, and also certain streets, to wit, Second Street, Green Street, Third Street, Fourth Street, Fifth Street and Sixth Street, projecting northwardly into said tract. At the western end of said tract the streets last mentioned were plotted about one-fifth of the distance northwardly across the said tract, and at Sixth Street about four-fifths of the distance northwardly across the said tract, because that line marked the limit of one mile from the city limits. On this same plan, Hoffman Street, or New Sixth Street, as it was known, was laid out at approximately the same location as the Hoffman Street now in controversy, the only difference being that at the northern end the old Hoffman Street was only about 100 feet west of the Sixth Street road, while on the present plans new Hoffman Street is swung westwardly at the northern end 100 feet further. In addition, across the southeastern corner of the McKee Graham tract, prior to 1875, there was located on the City Official Plan a street known as Shamokin Street.

5. North of the McKee Graham tract there were certain tracts of land plotted by others, with dedicated streets which did not fit in with the streets projected into the McKee Graham tract on the City Official Plan.

6. The executors and trustees of the McKee Graham estate were opposed to the opening of the streets as shown prior to 1919 on the City Official Plan and plotted over and upon its tract.

7. During 1918 and 1919, conferences were had between the City Planning Commission and the representatives of the McKee Graham estate, looking towards the realignment and readjustment of the public streets thus plotted over and upon the said tract on the City Official Plan. These conferences were finally consummated in an agreement between the City and the McKee Graham estate, approved by the Planning Commission on Oct. 16, 1919, by which the city obligated itself to strike from the City Official Plan certain streets as thereon plotted over the McKee Graham tract and to locate therein certain other streets in lieu thereof, including the relocation of Third Street and Sixth Street (now Hoffman Street). As consideration for this agreement, the McKee Graham estate agreed to deed the tract now known as Italian Park to the city, and, further, to release all damages for the opening of the streets which the city thus agreed to place on the official plan, which agreement was approved by the city and an official plan thereof was prepared by the city engineer.

8. While these negotiations between the McKee Graham estate and the Planning Commission were in progress, the Planning Commission suggested to the Board of School Directors of the School District of the City of Harrisburg, in letter dated July 1, 1919, that the site between Third Street and Sixth Street (Hoffman Street), as relocated, would be an ideal location for a senior high school building. Thereupon the agreement was finally reached between the McKee Graham estate, the said school district and the city that the school district should buy this plot; that the city should vacate or strike off the streets plotted over and upon the said tract; that the new layout, including new Hoffman Street, would be put on the City Official Plan, and that when the city came to open these streets, they should be opened without any claim being made for damages for any land taken. The price agreed upon for the land which the said school district desired to purchase was $2250 per acre.

9. Thereafter, on July 7, 1919, the said school district passed a resolution directing the purchase of the land described in the preceding finding of fact.

10. After the resolution of July 7, 1919, was passed, the Planning Commission suggested to the school district the desirability of purchasing the triangular plot between the old Sixth Street road and the new Hoffman Street on the west, in order to prevent it from falling into the hands of undesirable neighbors. And, after some negotiations, the Planning Commission secured an agreement on the part of the McKee Graham estate that it would sell this triangle to the said school district at the same rate per acre as the larger tract west of Hoffman Street.

11. Thereafter, on Dec. 5, 1929, the said school district passed the following resolution:

“That the officers of the board be and are hereby authorized to negotiate and purchase the Nettie McKee Graham plot at Sixth and Division Streets, taking in all the ground from the western line of the proposed Third Street and extending to the western line of the present Sixth Street, and between the northern and southern boundary lines of the Nettie McKee Graham tract, with the understanding that the ground to be included in the proposed new Third and Sixth Streets would be donated to the School District, with the further understanding that the School District donate this land to the City if the proposed new Third Street and the proposed Sixth Street are opened and maintained by the city. The purchase price is to be $2250.00 per acre.”

12. Pursuant to the resolution of Dec. 5, 1919, an agreement was entered into between the executors and trustees of the McKee Graham estate and the said school district for the purchase of the tract of land as described in the preceding finding of fact.

13. The survey contemplated by and made a part of the agreement of Dec. 5, 1919, was made by E. W. Cowden, civil engineer, acting for the said, school district. This survey showed the total area of the tract to be 46.63 acres, from which was deducted the area included in the proposed new Third Street and new Sixth Street (Hoffman Street), amounting to 4.82 acres, leaving a balance upon which the total consideration was computed of 41.81 acres.

14. On Dec. 15, 1919, a deed was executed by the executors and trustees of the McKee Graham estate for the tract of land as described in the agreement of Dec. 5, 1919, for the consideration of $94,072.50. The tract conveyed included the land covered by the proposed new Third Street and the proposed new Sixth Street (Hoffman Street), but for said land no charge was made.

15. The said deed of Dec. 15, 1919, included the following paragraph:

“The parties hereto agree that when the City of Harrisburg shall open Sixth Street eighty feet wide between Division Street and Katherine Street in the Ninninger Plan, and Third Street sixty feet wide, extending from Third Street on the Feldheim Plan to the intersection of Third and Division Streets, as approved by the City Planning Commission of Harrisburg, neither of said parties will make any claim for damages resulting from the opening of the above mentioned streets as aforesaid.”

There is a similar paragraph in the agreement of Dee. 5, 1919.

16.' In accordance with the understanding between the McKee Graham estate, the city and the said school district, the city, by proper official action, carried out its undertakings, and the older plotted streets were stricken from the City Official Plan and the location of the streets as agreed upon, including Third Street and Hoffman Street, were plotted thereon in accordance with the agreement. And Hoffman Street was further plotted northwardly as an eighty-foot street or thoroughfare through and beyond the city limits to the Linglestown Road. Since that time property owners on this thoroughfare northwardly have adjusted their improvements and properties to the line of the new eighty-foot street.

17. Also, in accordance with the said understanding and agreement, the city beautified Italian Park on the west side of Third Street as relocated, and opposite the property of the school district, and opened, graded and paved said Third Street as relocated, between Division Street and Graham Street, at the instance and with the approval of the said school district, which made no claim for damages therefor.

18. Further, pursuant to said understanding between the parties, on Nov. 18, 1919, an ordinance was duly passed by city council and signed by the mayor, authorizing and directing the city engineer to make a topographical survey of that portion of the City of Harrisburg known as the 14th Ward.

19. By communications dated Dec. 15, 1919, addressed to city council, the city engineer, as required by the Ordinance of Nov. 18, 1919, submitted to city council a topographical survey of the 14th Ward, together with map showing the existing and proposed highways within the limits of the school district tract and the streets proposed to be vacated — all in accordance with the said agreement. And the plan thus submitted, with minor changes not affecting the school district, was finally adopted by city council on April 21, 1921.

20. The said school district acquired the tract in question with full knowledge, consent and agreement that, in consideration of certain streets being stricken from the City Official Plan, Third Street and Hoffman Street, both as relocated, were dedicated as public streets and might be opened by the city without any claim for damages therefor.

21. The school district purchased said tract; its deed was prepared and its buildings were erected over a plan or survey which assumed that the agreement between the McKee Graham estate and the city had been fully carried out.

22. The proposed opening and grading of Hoffman Street will not render useless for school purposes any portion of the school district property east of Hoffman Street.

23. The use of the lands for Hoffman Street at the point in question may reasonably exist, together with the use of the adjoining lands for public school purposes. Such use aids in the accessibility of the school site to the general public and permits the orderly growth and development of the city, and was in the contemplation of both the city and the school district at the time the lands were acquired for school purposes.

24. The opening and grading of said Hoffman Street is necessary for the growth and development of the city to the north.

Discussion.

Much of the brief of counsel for the plaintiff is devoted to the question, was there a dedication of Hoffman Street for public use? This contention was brought to our attention and was argued when we had under consideration the rule to show cause why a preliminary injunction should not be granted restraining the City of Harrisburg from opening and grading Hoffman Street. At that time, we wrote an opinion discharging the rule to show cause and refusing the preliminary injunction, in which this question was considered and discussed — see page 5, et seq., of our opinion, reported in 32 Dauphin Co. Reps. 19-24. After defining “dedication” and citing many authorities, we reached the following conclusion: “We think the intent of the executors and trustees of the Graham estate to dedicate the land included within the lines of new Third Street and new Sixth Street, now Hoffman Street, in consideration that the City of Harrisburg would vacate streets theretofore projected into this tract of land, clearly appears by the evidence:” 32 Dauphin Co. Reps. 25.

What we said in that opinion need not be repeated here.

This case proceeded to final hearing and was argued at length. After carefully considering the matter, we are of the opinion that nothing has been shown which moves us to alter the opinion we heretofore expressed, and we affirm what was said in our former opinion.

We might rest our opinion without further discussion; however, at the oral argument it was contended by counsel for the plaintiff that, assuming there was no dedication of the land over which the city now proposes to open Hoffman Street, formerly called new Sixth Street, the city has no authority under its power of eminent domain to lay out a street on the land owned by the school district, for the reason that land held for one public use cannot be condemned for another public use. In order that this case may be reviewed by the court in banc, and, if an appeal is taken, by the Supreme or Superior Courts, we have given this subject very careful attention.

Is the contention that land held for one public use cannot be condemned for another public use sound? and does this contention apply to the facts in this case as we have found them to be?

Counsel for plaintiff places much reliance in the case of St. Louis v. Moore, 269 Mo. 430; 190 S. W. Repr. 867. We think this case is not controlling. We are impressed by the ruling of the Massachusetts Supreme Judicial Court in Easthampton v. Hampshire County Comm’rs, 154 Mass. 424. The question before that court in that case was whether county commissioners can take a strip of land from a school-house lot for a town way. Mr. Justice Holmes, then a member of that court, writing the opinion of the court, held: “. . . Taking the strip will injure the lot considerably for school purposes, but will not prevent its use, so far as appears. We must assume that the way is necessary, and, if it be material, we must assume that taking this strip is reasonably necessary for the way, whoever may be the final judge on the latter question when it is raised. . . .”

The learned Justice, on page 425, proceeds to state the law as follows: “We must consider the relative importance and the necessities of the two uses genetically, the extent of the harm to be done, accept any light that history may throw, and make up our minds, under all the circumstances of the particular case, as best as we can. To put cases nearer to the present, and lying between the two extremes which we have mentioned, it would be a strong thing to say that, without special circumstances, county commissioners or other like officers, acting under general powers, could lay out a highway through a public reservoir so as to ruin it (citing cases). On the other hand, if a tract of land were held for public purposes, which was so broad that it was impracticable to go round it, and which could be crossed without serious harm by the edge of a stream that flowed through it, it well might be held lawful for the way to cross it. . . . It is impossible to accept any unqualified rule that no part of such land can be taken for a way under any circumstances without an express enactment. In the only case which we have found precisely parallel to this, it was held that the strip was lawfully taken from the school lot: Rominger v. Simmons, 88 Ind. 453.”

This case is also reported in 13 L. R. A. 157. See, also, City of Boston v. Inhabitants of Brookline, 156 Mass. 172; also opinion of Lowell, District Judge, in Re Certain Land in Lawrence, 119 Fed. Repr. 454; United States v. Gettysburg Electric Ry. Co., 160 U. S. 668.

The rule is succinctly stated in 2 Lewis on Eminent Domain (3rd ed.), § 435, page 785, as follows: “Lands and buildings in actual use for public schools cannot be taken for other public uses under a general authority. But this rule will not protect schools of any and every size. It has been held that a strip of land may be taken from a school lot which might impair, but did not prevent, its continued use for school purposes,” citing Easthampton v. County Commissioners, supra; also reported in 28 N. E. Repr. 298.

The law is broadly stated in 20 Corpus Juris, § 91, page 605, as follows: “In the absence of some statutory provision expressly or by implication forbidding it, property devoted to one public use may under general statutory authority be taken for another public use, where the taking will not materially impair or interfere with or is not inconsistent with the use already existing, and is not detrimental to the public. It is not material that some inconvenience may result to the prior occupant, if the conditions are such that the two uses can stand together. The rule that power must be conferred expressly or by necessary implication applies only where the second use will destroy or injure the use to which the land was originally appropriated,” citing Independent Natural Gas Co. v. Butler Water Co., 210 Pa. 177; Philadelphia, etc., R. R. Co. v. Philadelphia, 9 Phila. 563.

In Com. ex rel. v. George, 148 Pa. 463, it was held: “It is one of the inherent powers of a city to pave, grade, sewer and otherwise improve its streets, and to pay therefor, and this power exists without any express legislative grant, and unless it has been taken away by some legislation.” See, also, Pennsylvania Hospital v. City of Philadelphia, 254 Pa. 393.

Applying the above authorities to the facts, we find that laying out Hoffman Street across the eastern end of the property of the school district is necessary in order to eliminate two dangerous curves, one at the corner of Division and Sixth Streets, and the other at the corner of Sixth and Graham Streets. We find also that the two public uses may stand together, and while the opening and use of Hoffman Street as it is now intended to be opened and used will result in some inconvenience to the property of the school district, it will not destroy its use. The opening of this street will require the removal of about sixty-three trees; some are good and some are bad.

There also was testimony that the opening and use of this street would result in great danger to the school children. The evidence shows, however, that the street will be quite some distance from the school building. Doctor Pager, Principal of the William Penn High School, testified with regard to the locos in quo (Notes of testimony, page 3): “Well, at the lower part it is uneven; I would say [for] the lower two-thirds it is uneven, with trees — at one place where there was a swamp there is a depression there, back of the school. Now, to the north, the temporary road that was there during the time the school was building, to the north of that it is level and is covered with trees; I don’t know of anything else.”

Inquiry being made of Doctor Pager as to the condition of these trees, he replied: “Well, some are good and some are bad; that is my opinion.” (Notes of testimony, page 3.)

Doctor Pager also testified that during intermission the scholars of William Penn High School circulate over the ground through which Hoffman Street will pass; at one time a pageant was held there. The doctor further testified (Notes of testimony, page 4): “The only level part of the campus back of the building is to interfere with this temporary road that I have spoken of before. That is the best part of the campus for anything. South of that it is very uneven. Now, if they would run this road through there, it would bring the road very close to, and I think the sidewalk would cut into some of this playing field that the girls use now.”

In answer to the question: “Q. Could this playing field still be utilized if the proposed street goes through? Doctor Pager replied: A. Yes; it will restrict it.” (Notes of testimony, page 4.)

On cross-examination, Doctor Pager testified that the nearest point of the proposed Hoffman Street to the football ground on the campus would be 200 feet, and that the distance to the school building would be more than 200 feet.

The principal danger in the minds of witnesses for the plaintiff was that the girls playing hockey might drive their balls into the proposed street, and running after the balls might subject them to danger. We think a wire fence or protection could at small expense be placed along the hockey field so that the balls would not fly or roll into the street when opened, and that would eliminate this element of danger.

We are of the opinion, therefore, that the power of the city to condemn this land for public use is clearly established by the weight of the authorities; that it may subject the school district to some inconvenience, but does not destroy the property for the purpose for which it is used, and that the danger to the scholars playing hockey may easily and inexpensively be eliminated.

We agree, however, with the suggestion of the learned City Solicitor that it is not necessary to determine this question in these proceedings because of the facts. It clearly appears that the school district purchased, its deed was prepared, and its buildings erected over a plan or survey which assumed that the agreement between the Graham estate and the city had been fully carried out; in fact, a survey showing Hoffman and Third Streets as plotted on the ground and certain other streets as stricken off was specifically attached as part of the agreement of sale between the Graham estate and the school district — to all of which we directed attention in our opinion filed and heretofore referred to refusing to grant a preliminary injunction.

After carefully reading and re-reading the testimony taken in this case, we are of the opinion that the facts which we have found are overwhelmingly supported by the weight of the evidence. We think, therefore, the bill of the plaintiff must be dismissed.

We submit herewith the following

Conclusions of law.

1. The councilmanic body is the sole judge as to the necessity and expediency of the exercise of the power granted to a municipality to open and grade a public highway, and its decision is not reviewed by the court.

2. So long as a street is to be opened to the use of the public, no inquiry will be made by the court into the municipality’s purpose in opening it.

3. A dedication consists in the appropriation or gift by the owner of land or an easement thereon fo.r the use of the public.

4. A dedication may be either expressed or implied. The intent to dedicate may be manifested by acts in pais or by conveyance of record. No particular form or ceremony is necessary, and it may be accomplished with or without writing or conveyance. It is only necessary that the intent be expressed by open acts and visible conduct.

5. The sale of land according to a plan which shows it to be on a street implies the grant or conveyance to the purchaser that the street shall be forever open to the public and operates as a dedication to public use.

6. The school district took title to the lot in question subject to a plan approved by the City Planning Commission, establishing the lines of Hoffman Street, which was at some time to be opened by the city, and for which, when opened, no damages could be claimed.

7. The agreement of the school district to purchase the tract in question and the titles taken by it were under and subject to an easement within the lines of said Hoffman Street as now proposed to be opened for highway purposes, and under and subject to the right of city council to open said Hoffman Street at any time without payment of any damages therefor.

8. The executors and trustees of the McKee Graham estate dedicated the land lying within the lines of Third Street and Hoffman Street as relocated on the City Official Plan.

9. The city by appropriate municipal action accepted said Hoffman Street as dedicated, and has fully carried out its part of the agreement made by it with the McKee Graham estate, with the exception of the opening of Hoffman Street, which it now proposes to do.

10. When the school district made its agreement to purchase and took title to the tract in question, it acquired the fee to the land subject to the prior public easement theretofore superimposed with its full knowledge, consent and approval for public highway purposes.

11.When the school district first entered into the agreement to purchase the tract in question, the land lying within the lines of Hoffman Street, as relocated, had already been impressed with a public use for street purposes.

12.In addition to tjie powers specifically vested in the city by the acts of assembly, it possesses the inherent right of the sovereign to open such streets and thoroughfares and across and through such property as in its discretion are deemed necessary and convenient.

13. The City of Harrisburg has the legal right to open Hoffman Street in question.

14. The injunction as prayed for should be refused.

15. The bill should be dismissed, at the cost of the plaintiff

Decree nisi.

The bill of the plaintiff is dismissed, the plaintiff to pay the costs.

Fdom Homer L. Kreider, Harrisburg, Pa.


author: Patterson, P. J.,

text:
    Frankstown Township Road.

      Robert W. Smith, for petitioners; George G. Patterson, for exceptants.
    March 30, 1929.
   Patterson, P. J.,

On Oct. 3, 1927, viewers appointed by this court filed their report recommending that a certain road in Frankstown Township, leading from White Bridge to Mentzer’s Mill, of a total length of. 2332.9 feet, be vacated. Thirteen exceptions were filed to said report. In the 1st and 2nd exceptions it is averred that the petition for the vacation of said road failed to state specifically in what manner the road was originally established and that the location and other circumstances of the road were not stated as required by law. The 3rd and 4th exceptions aver that one of the viewers was not a resident and freeholder of the County of Blair at the time of his appointment, and that the term of another of the viewers had expired more than a year before his appointment in this case. The 5th, 6th, 7th and 8th exceptions aver that the report fails, for the reason that it undertakes to vacate a portion of a cross-road and continues as a public road and part of the same a short distance into a private residence. That the point of beginning and the point of ending and the next intersecting road are not definitely fixed, as required by act of assembly. That the road, as vacated, would leave a portion of the road not vacated terminating on private lands, and would continue said portion of said public road and two township bridges for the accommodation of one person. That said road would not have its termini in other public roads or at other public places. It is averred in the 9th, 10th, 11th, 12th and 13th exceptions that the said proceedings are defective for want of proper notice; that the viewers were not organized, and that their findings of fact and law are not in accordance with the evidence and the act of assembly.

We shall first consider the 3rd and 4th exceptions, in which it is charged that the viewers were not duly qualified, and had this objection been made earlier in the proceeding, we are convinced that it would, have prevailed. However, since the exceptants permitted the viewers to proceed with the hearing of witnesses and the viewing of the premises without objection, they are now too late, after report is filed, to make this application. The Act of June 23, 1911, P. L. 1123, provides for the appointment of viewers for a term of three years, and each viewer must be qualified, in that he be a resident of the county for at least five years before his appointment, and a freeholder. The term of one of the viewers had expired several years previous to his appointment in this case, and another viewer was not a freeholder or a resident of the county for a sufficient time.

In Columbus Township Road, 57 Pa. Superior Ct. 516, it is held: “It is clear that such objection ought to be made at the earliest moment when, by the exercise of common diligence and observation, the fact might have been discovered. A man cannot reserve such an objection while he awaits £he chances of a favorable report and use it after he finds the report against him.”

In Newbecker v. Susquehanna R. R. Co., 1 Pearson, 57, it is held: “A party knowing of a legal objection to a viewer must make it before the report is made.”

If there were no other exceptions, this report should be confirmed.

The remaining exceptions, which we shall consider together, raise more serious questions. The proceeding is defective for the reason that neither the petition nor the report sets forth how the road became a public road, which is necessary, under the law, in order to give the court jurisdiction. It is not sufficient to merely aver, as in the petition in this case, “that a certain portion of the public road in the said township laid out many years ago and maintained and kept in repair by the township authorities.” The petition must go further and show how it became a public road.

In Road in York Township, 11 Dist. R. 706, it is held: “In order to give the court jurisdiction, a petition for the vacation of a public road under the Acts of June 13, 1836, P. L. 551, and April 21, 1846, P. L. 416, must either state specifically that the road was not laid out by act of assembly or negative this exception by averring that the road was laid out under one of the methods prescribed by the acts authorizing vacation.” Supporting the same principle are the following cases: Pine Hill Road, 6 D. & C. 441; Road in Salem Township, 23 Dist. R. 140.

In construing the Acts of 1836 and 1846, the court, in Road in Drumore Township, 15 Dist. R. 625, says:

“1. Having, then, only authority to vacate a road where it has been laid out by authority of law.
“2. Where it exists by prescription or lapse of time.
“3. All roads, except private roads, where their existence rests upon express grant, the evidence of which is still in existence, the court must be satisfied that the road which these proceedings propose to vacate comes within one of these three classes before it will order its vacation. The burden of showing this is on the petitioners. They are invoking the aid of the court, and they must satisfy it that what they ask is within its powers. The petition is the basis of the proceeding, and it must contain a statement of everything necessary to give the court jurisdiction to do what is asked of it. In re Church Road, 5 W. & S. 200, the Supreme Court says: ‘As the Court of Quarter Sessions has no powers but what it gets from the statute, the object ought to be specifically stated in the petition, which is the basis of the subsequent proceedings, and it should appear to be clearly within the purview.’ ”

A road may be laid out with one end at a point other than a public road, but no case has gone so far as to permit the vacating of a portion of a road which will leave another portion unvacated for the use of a private individual. And this report vacates only a part of the road designated and leaves 262 feet, upon which there are two township bridges to be maintained for the accommodation of one person.

In a very similar case, reported in 1 Chester Co. Reports, 396 [In re London Britain Road], it is held:

“It is excepted to the report of the viewers that they erred in so vacating portions of the old road, as in one place to have a public road leading to and only accommodating the residence of J. T. Burns, and in another in leaving a pfiblic road leading to and only accommodating the North Bank school-house.
“By the Act of June 13, 1836, in relation to public roads (Purdon, 1276), the Courts of Quarter Sessions ‘have authority, upon application to them by petition, to inquire of, and to change or vacate, the whole or any part of any public or private road which may have been laid out by authority of law, whenever the same shall become useless, inconvenient or burdensome.’
“The authority here given to vacate a part of a public road was never intended to be exercised in such a manner as to leave a portion of a road unvacated, leading simply to the private residence of an individual, for his accommodation, and leaving no outlet beyond, and to be maintained at the public expense, when no public necessity called for it. If a road is not needed for public travel, it should be vacated. The act of assembly makes provision for private roads from plantations or dwelling-houses when needed, to be maintained by those for whose use they are laid out. The court could not sanction the laying out of a public road to or from the dwelling-house of an individual solely for his private accommodation; and neither will they so vacate a public road as to leave a part of it open for the same purpose. A public road, as a general rule, should have its termini in other public roads or at places of public resort; and when a part thereof is vacated, the part not vacated should have such termini: Road from Matthew Miller’s, 9 S. & R. 35; Loretto Road, 29 Pa. 350; Boyer’s Road, 37 Pa. 257; Susquehanna Road, 1 Pearson, 59. In the case before us, a portion of the road not vacated was left solely that access, might be had thereby to the dwelling of J. T. Burns, and the road there ends. This cannot be sanctioned.”

It is necessary that the petition set forth the circumstances or reason for not vacating a portion of the road, which in this case was overlooked, both in the petition and in the report. In Road in Ross Township, 36 Pa. Superior Ct. 87, it is held that the act of assembly provides: “That every application to vacate any road shall set forth in a clear and distinct manner the situation and other circumstances of such road or highway or of the part thereof which the applicants may desire to have vacated.” And in the present case, neither the petition nor the report sets forth in clear and distinct manner the situation and other circumstances of the road sought to be vacated as required by law. The petition fails to mention the portion of the road which is not to be vacated, and neither does the petition show any reason why a portion of this road should be kept open at public expense for private use.

The Act of Assembly of June 20, 1919, P. L. 509, provides “that a report of viewers shall not be held invalid for the reason that one of the termini named in the petition or in the report is at a point other than at a public highway or place of public resort, where it appears in such petition or report that the other terminus is a public road and that the road is one necessary for public travel.”

This act does not apply in this case, for the reason: It relates only to the laying out of township roads, and even though it were construed to relate to the vacation of township roads, it would be necessary for the viewers to find that the portion of the road, to wit, the 262 feet left unvacated to accommodate a private individual, namely, David Ebersole (see depositions of A. G. Andrews), was necessary for public travel, which is not the case, and no such finding has been made by the viewers.

From a careful examination of the petition, report of viewers, the testimony and the law, and after due consideration of the arguments of counsel, we are satisfied that the 1st, 2nd, 5th, 6th, 7th, 8th, 11th and 13th exceptions should be sustained. The 3rd, 4th, 9th, 10th and 12th exceptions are refused.

Decree.

Now, March 30, 1929, it is hereby ordered and decreed that absolute confirmation of the report of viewers be refused and the petition, report and all other proceedings are quashed for the reasons hereinbefore set forth. Costs to be paid by the petitioners.


author: Koch, P. J.,

text:
    Ashland Borough’s Petition.

      L. E. Enterline, for petition; M. M. Burke and P. H. Burke, for exceptant.
    July 22, 1929.
   Koch, P. J.,

Section 107 of the General Borough Act, approved May 4, 1927, P. L. 519, says: “Any borough or incorporated town, incorporated or acting under any local or special act of assembly, may surrender the provisions of its special acts in their entirety, so far as they are inconsistent with this act, and be governed by the provisions of this act, by presenting a petition to the Court of Quarter Sessions of the proper county, setting forth the desire of such borough or incorporated town to accept the provisions of this act. The petition shall also set forth whether it is the desire of the petitioners to surrender all of the provisions of its special acts or to retain such provisions of its special acts as are not inconsistent with this act. Such petition shall be made by the burgess and council or by twenty-five qualified electors of the borough or incorporated town,” etc.

In this instance we have the petition of the burgess and council. John Carr, as a citizen, taxpayer and supervisor of said borough, filed exceptions to said petition, of which exceptions we need only consider the 5th, which reads as follows:

“5. Petitioners pray the court (page 5) to allow the Council of the said Borough of Ashland to surrender the provisions of section 4 of the Act of 1864, P.. L. 343, .in its entirety, and to surrender section 2 of the Act of 1859, P. L. 577, in its entirety, and portion of section 1 of the Act of 1872, P. L. 79, ‘so that said section 1 of the Act of 1872, P. L. 79, shall read as set forth in the bottom of page 5.’ This exceptant objects that petitioner cannot in any wise change or alter, by order of this court, any portion of the Act of 1872, P. L. 79, for such change would amount to legislation or be equivalent thereto, and neither petitioners nor this court have authority, under the law, to so legislate.”

We think the ground of this exception is tenable.

The prayer of the petitioner is to be allowed to surrender the provisions of section 4 of the Act of April 8, 1864, P'. L. 343, in its entirety, the provisions of section 2 of the Act of April 13, 1859', P. L. 577, in its entirety, and that portion of section 1 of the Act of Feb. 6, 1872, P. L. 79, as being inconsistent with the Act of 1927, which reads as follows: “At the next election for borough officers of said borough and annually thereafter.”

The evident purpose of the petitioners is to change in certain particulars only the law regulating the Borough of Ashland. But we have no power to do that; such power vests only in the general assembly, and the General Borough Act of 1927 vests no such power in us. The act allows a borough to surrender “the provisions of its special acts in their entirety, or so" far as they are inconsistent with” the act. If a borough surrender its special laws in their entirety, it immediately becomes subject to all the provisions of the Act of 1927, and is no longer governed by any of the provisions of its special laws. But if it surrender its special laws only “so far as they are inconsistent with this Act” of 1927, the borough is then governed by the Act of 1927 and the provisions in the special acts which are not inconsistent with said Act of 1927. The borough must “accept the provisions of this act.” It may not accept only a part of the act — it must accept the whole of it. And it is incumbent upon a petitioning burgess and council to say whether they desire to surrender all of the provisions of their special acts or retain such provisions of the special acts as are not inconsistent with the General Borough Act of 1927. The provisions in the law require the petitioners to do one thing.or the other; they do not enjoy the privilege of surrendering some inconsistent provisions and retaining other inconsistent provisions. “To retain such provisions of its special acts as are not inconsistent with this act”, does not mean to retain only some provisions as are not inconsistent; they must retain all or none of such provisions. And they are not called upon to set'forth those special provisions in their petition.

The petitioners conclude their petition by saying: “And also to surrender section 2 of said Act of 1872, P. L. 79, in its entirety, the same, however, not to be effective as to the terms of office of the present treasurer or supervisor until the expiration of their present terms.”

How could we, under the law, change the effect of such a surrender?

The petition is dismissed, the petitioners are allowed an exception and bill is sealed.


author: Gest, J.,

text:
    Vetter’s Estate.

      R- W. Archbald, Jr., for petitioner.

      Earl W. Thompson and John M. Abbott, contra.
    Oct. 24, 1929.
   Gest, J.,

The testator by his will devised a third part of his residuary estate to his executors in trust to pay the income to his daughter, Rose Van Dusen, for her life, with remainder to her children, and by codicil directed that in ease of the death of Charles Van Dusen, the husband of Rose, or in case of her divorce from him, the principal of her trust estate should be paid to her absolutely, and the limitations over should become void. The executors filed their account, which is pending before an auditor, and Rose Van Dusen at the audit produced an exemplified copy of the record of the Second Judicial District Court of the State of Nevada, from which it appears that she brought an action of divorce therein on Oct. 1, 1928, alleging that for over three months past she had been an actual bona fide resident of Washoe County, Nevada, and that her husband had failed to support her for over one year. It further appeared that the summons was served on Charles Van Dusen on Oct. 2, 1928; and that defendant appeared, in writing, admitting service of the summons and consenting that his default might be entered in the premises. The case was tried on the same day before the court without a jury, and on the same day the court entered a decree of absolute divorce. Rose Van Dusen accordingly claimed before the auditor that she was entitled to the trust estate absolutely.

It is claimed by the guardian ad litem of Casper Van Dusen and Rose Anna Van Dusen, the minor children of Rose Van Dusen, remaindermen under the will, that the residence of Rose Van Dusen in Reno, Nevada, on the faith of which she obtained the divorce, was not bona fide; that her allegation of nonsupport was not true, and that, therefore, the decree was void; and, further, that the divorce was obtained by collusion between Rose and Charles Van Dusen and was, therefore, not such a divorce as was intended by the testator in his will.

This petition is presented by the guardian ad litem for a commission to take the testimony of certain persons resident in Los Angeles, California, where it is alleged Rose Van Dusen and Charles Van Dusen lived before the divorce and now reside, tending to show the facts above mentioned; and the answer sets up that, under the Constitution of the United States, article iv, section 1, the decree of the Nevada court must be given full faith and credit in Pennsylvania, and, unappealed from, cannot be attacked collaterally in the present proceeding.

The allowance of a commission rests in the sound discretion of the court. Where the application appears to be frivolous or made for the purpose of delay, it should be refused; but when such an objection does not appear, it is much safer to grant the application, as great injury might result from refusing it; and even if it should subsequently appear that the testimony disappoints the petitioner or is for legal reasons inadmissible, the delay caused is generally immaterial, as we think it would be in this case. The amount here involved is quite considerable, the questions raised are important, and the court in disposing of them should have all the facts of the case before it. See Morse v. Grimke, 8 N. Y. Supp. 1.

We are of opinion that it is better practice to allow the commission to issue, and, upon its return, the auditor will be able to rule upon the competency and relevancy of the testimony with greater precision and accuracy. His report, having been filed, may be the subject of exceptions, and we shall then be better able to dispose of the questions of law that may appear from the record.

The commission will accordingly issue as prayed for.

Lamorelle, P. J., absent.


author: Walsh, J.,

text:
    Myanza Color and Chemical Company v. Fertex Dyeing and Finishing Company.

      Joseph L. Ehrenreich, for Harry W. Brocklehurst, petitioner.

      George S. Bussell, for Thomas W. Cunningham, Sheriff.

      J. Warren Brock, for Commonwealth of Pennsylvania.
    June 20, 1929.
   Walsh, J.,

This matter comes before the court upon a petition for a rule upon the sheriff to show cause why a fund should not be deposited in court and distribution awarded to the petitioner, and an answer duly filed on behalf of the sheriff. By agreement of the parties, the depositing of the money in court has been waived, and the court has been requested merely to direct distribution of the fund.

The fund to be distributed amounts to $330.50, being the proceeds of a sheriff’s sale of all of the assets of the defendant corporation on Aug. 30, 1928, pursuant to a levy theretofore made on July 19, 1928.

The claimants against the said fund are the Commonwealth of Pennsylvania, which has presented a claim for capital stock and corporate loans taxes for the years 1927 and 1928; Harry W. Brocklehurst, the petitioner, the defendant company’s landlord, who has presented a claim for rent, and costs due from the defendant corporation in the amount of $1792; and Charles A. Kohs, a wage claimant, who has filed a claim in the amount of $540 for wages earned during the period from Feb. 19, to May 18, 1927.

The wage claim may be dismissed at once, because said wages were not for “labor and services rendered . . . for any period not exceeding six months preceding the sale, . . as required by section 1 of the Act of May 12,1891, P. L. 54, amending section 1 of the Act of April 9, 1872, P. L. 47: 4 Purdon, 5039-45. See, also, Gergenmuller v. Groff et al., 18 Dist. R. 40; Sollenberger’s Estate, 8 Dist. R. 626.

The claim of the Commonwealth is based upon four accounts, two of which were settled and entered by the Auditor General and approved by the State Treasurer prior to the date of the levy, and two of which were similarly settled, entered and approved subsequent to the levy, but prior to the sale. On behalf of the Commonwealth, it has been contended that all of these accounts are entitled to a preference, ahead of all other claims, by virtue of section 1 of the Act of June 15, 1911, P. L. 955, as amended by the Act of April 12, 1923, P. L. 63, which provides as follows:

“From and after the passage of this act, all State taxes imposed under the authority of any law of this 'Commonwealth now existing or that may hereafter be enacted, and unpaid bonus, interest, penalties, and all public accounts settled against any corporation, company, association, joint-stock association, or limited partnership, shall be a first lien upon the franchise and property, both real and personal, of such corporation, company, association, joint-stock association, or limited partnership, from the date when they are settled by the Auditor General and approved by the State Treasurer, or in the cases where the Auditor General alone makes the settlement, from the date when they are so settled by him; and whenever the franchise or property of a corporation, company, association, joint-stock association, or limited partnership, shall be sold at a judicial sale, all taxes, interest, bonus, penalties and public accounts due the Commonwealth shall first be allowed and paid out of the proceeds of such sale, before any judgment, mortgage, or any other claim or lien against such corporation, company, association, (joint) stock association or limited partnership.”

The title of the defendant corporation to the assets, godds and chattels which were sold by the sheriff was not divested by the levy, but remained in the defendant until divested by the sale. It follows that said assets, goods and chattels were the property of the corporation, not only when the first two accounts were settled, entered and approved, but also when the last two accounts were similarly settled, entered and approved. Consequently, by the express terms* of the act, all of said accounts became a first lien upon all of the assets of the defendant corporation.

This, without more, would amply sustain the contention of the Commonwealth. But the act further expressly provides that whenever the property of a corporation is sold at a judicial sale, “all taxes, interest, bonus, penalties and public accounts due the Commonwealth shall be allowed and paid out of ‘the proceeds of such sale, before any judgment, mortgage or any other claim or lien against such corporation. . . .”

It is evident, therefore, that the claim of the Commonwealth to a preference in the fund for distribution must be allowed, particularly in view of the decision of the Supreme Court in Harper v. Consolidated Rubber Co., 284 Pa. 444, holding that, under this act, the claim of the Commonwealth for taxes settled and entered against a corporation was entitled to priority in the funds realized hy a sale of the real estate of a corporation upon a purchase-money mortgage, ahead of the said mortgage. For these reasons,

Now, to wit, June 20, 1929, the court orders and directs Thomas W. Cunningham, Sheriff, to make distribution of the fund of $380.50, being the proceeds realized from the sale of the assets of the Fertex Dyeing and Finishing Company, the defendant above named, said sale having been made by the said sheriff on Aug. 30, 1929, by virtue of a writ of fieri facias issued as of the above court, term and number. Said sheriff is hereby ordered and directed to distribute and apply the said fund of $330.50 in the manner following, to wit: First, to the payment of the said sheriff’s just costs and expenses; second, to the payment of the claim of the Commonwealth of Pennsylvania for taxes in the amount of $238.45; and, third, to the payment of the claim of Harry Brocklehurst, rent claimant, in the amount of $1792; and, fourth, the balance, if any, to be paid to the plaintiff above named.