text:
    Group Insurance.

      Insurance — Group insurance — Bates — Automobile insurance — Act of May 17, 1921.

    The writing of various classes of automobile insurance, including lire, theft, liability, collision and property damage, to all the members of a group at rates less than those charged individuals not members of the group, is illegal under the Act of May 17, 1921, P. L. 682.
    Department of Justice. Opinion to Hon. Matthew H. Taggart, Insurance Commissioner. x

    May 8, 1928.
   Wagner, Dep. Att’y-Gen.,

We have your request for our opinion relative to the legality of what is known as “group insurance” as applied to the various classes of automobile insurance, including fire, theft, liability, collision and property damage lines.

We understand that certain insurance companies and agents and brokers are now writing, or contemplate writing, automobile insurance for all of the members of a group who desire to secure the same at rates which are less than those charged individuals, not members of the group, for the same kind of insurance. This insurance is written either by the issuance of a series of policies to the members of the group or by issuance of a master policy covering the entire group, with the issuance of certificates under the master policy to each member. The issuance of such group policies to the members of a designated automobile club or to the employees of a designated corporation are two examples of this method of writing insurance.

We are of the opinion that the writing of automobile insurance in this method is illegal, being in violation of the provisions of section 626 of the Insurance Company Law of 1921 (Act of May 17, 1921, P. L. 682), which is as follows: “Discrimination between individuals of the same class in the amount of premiums or rates charged for any policy of insurance covered by this act, or in the benefits payable thereon, or in any of the terms or conditions of such policy, or in any other manner ¡whatsoever, is prohibited.”

We are unable to understand how a method of writing insurance which will permit a member of an automobile club to obtain automobile insurance at a rate less than that required to be paid by an owner of another automobile resident in the same locality and subject to the same risks, who is not a member of the club, can be free from discrimination. The decrease in rate is dependent solely upon membership in a designated organization, and, in our opinion, a determination of rates upon this basis alone constitutes discrimination.

We are not to be understood as holding that discrimination prohibits reasonable and proper classification. Classification of rates according to the nature of the risk is well known in other lines of insurance. If, however, a classification is to be recognized, the rate applicable to the class must be applied to individuals as well as to members of a designated organization or group who are able to qualify and come within the classification. The basis for such classification will, of necessity, be established according to principles well known in the insurance world and applied in other classes of insurance, with such modifications as may be necessary to fit them to automobile insurance.

We are, therefore, of the opinion that the practice of writing automobile insurance to members of a group at rates less than those charged to individuals not members of the group is discriminatory and illegal.

Nothing contained in this opinion is to be construed as an expression of opinion legalizing what is termed “group insurance” as applied to any form of casualty insurance. From C. P. Addams, Harrisburg, Pa.


source: Caselaw Access Project

author: Stewart, P. J.,

license: Public Domain

text:
    Schwartz v. Continental Insurance Company.

      Practice, C. P. — Motion to strike off pleading — Time—Act of May 23,1923.

    1. The provision of the Act of May 23, 1923, P. L. 325, that a motion to strike from the record a pleading must be made within fifteen days after a copy of the pleading shall have been served upon the opposite party or his attorney, is mandatory and must be strictly complied with.
    2. Where plaintiffs reply is filed without leave of court and a motion is made to strike it off on the eve of the trial on the ground that it is really an amendment to the statement and that if allowed to stand it will change the cause of action, such question can be disposed of on the trial.
    Rule to strike plaintiff’s reply from record. C. P. Northampton Co., June T., 1925, No. 127.

      Rtcssell C. Mauch and Kent & Rockwell, for plaintiff.

      Kirkpatrick, Maxwell & Chidsey and Horace M. Schell, of the Philadelphia ’ Bar, for defendant. /
    Oct. 10, 1927.
   Stewart, P. J.,

This is a motion to strike plaintiff’s reply from the record. The grounds of the motion are that the reply, in its aver-ments, does not conform to the Practice Act, that the defense set out in the affidavit of defense was not new matter, and, therefore, no reply was necessary; and that the reply itself is an amendment to the plaintiff's statement of claim, which seeks to change the cause of action after the limitation of time for bringing suit set forth in the policy. The statement of claim was filed on May 25, 1925. It avers that the fire occurred on Nov. 25, 1924, and that notice of the destruction of the building was given ’to the defendant on Jan. 20, 1925. Defendant filed its affidavit of defense on June 10, 1925, and in it defendant admitted that it received notice of plaintiff’s loss on Jan. 20, 1925, but defendant averred that notice received fifty-six days after the fire was not the “immediate notice” contemplated by the terms of the policy. The case then rested almost two years, until May 7, 1927, on the eve of the day the case was listed for trial, when plaintiff filed this reply. The record does not show that the reply was served on the defendant or its attorneys of record, but they knew its contents when they asked for a continuance. Defendant asked for a continuance on the ground of surprise, and, quoting from their brief, “on the ground that we would ask for a rule to strike off plaintiff’s replication.” The rule to strike off was not moved for until Sept. 20, 1927. The learned counsel for the defendant, realizing that they were too late under the provisions of the Act of May 23, 1923, P. L. 325, referred in the brief as an excuse for their delay to “the attitude of counsel for both sides and the understanding with Your Honorable Court.” So far as the court is concerned, there was no understanding. The matter before the court was the continuance of the case, and it was granted on the ground of surprise, and, in our judgment, the present rule should have been asked for immediately and disposed of before the summer vacation. We held in Wimmer v. Kendall, 20 Northamp. Co. Repr. 220, that a motion to strike from the record a pleading must be made within fifteen days after a copy of the pleading shall have been served upon the opposite party or his attorney, and we think the delay in the present case has been too great. This case is on the trial list for next week. The present matter was argued last Monday, and this decision will be handed down upon the day that the case, in all probability, will be called for trial. So far as the preparation of the case is concerned, it must have been made without any reference to this decision. The argument of the learned counsel for the defendant that the reply should be stricken off on account of plaintiff’s gross laches in filing the same would have had greater force if made at the May Term of court and if the defendant had signified its willingness to go to trial at once if the reply had then been stricken off.. Speaking generally, there should be a court rule limiting the time in which plaintiff’s reply could be filed. In the present case, plaintiff’s reply was, no doubt, filed because of the Act of March 30, 1925, P. L. 84, with the thought that the affidavit of defense set up “new matter.” This latter act has been discussed in the cases of Oak Lane Country Day School v. Fidelity-Phenix Fire Ins. Co., 8 D. & C. 35; Oak Lane Country Day School v. Virginia Fire and Marine Ins. Co., 8 D. & C. 194, and Reichard v. Insurance Co. of the State of Penna., 8 D. & C. 275. All of these cases were actions against fire insurance companies, and we think that the considerations advanced by President Judge Niles in the last case cited should govern in this case. If the paper labeled “replication” was filed simply to avoid admitting the truth of defendant’s “new matter,” defendant will not be prejudiced on the trial. If the “replication” on the trial is sought to be considered by the plaintiff as an amended statement and the defendant then considers that it changes the cause of action, that matter can be disposed of on the trial. In the leading case of Grier Bros. v. Northern Assurance Co., 183 Pa. 334, which is by far the best discussion of the general subject and should be studied, on page 342, Mr. Justice Green says: “The important question arises, can such an amendment be made or, if allowed, can it be enforced against the objection of the defendant after the expiration of the time for commencing an action on the policy? The learned court below refused the first point of the defendant on this subject because the amendment had been allowed and was, therefore, res adjudicate. It is very clear that if the amendment was improperly allowed, it gained no strength because of its allowance, and, therefore, the question was still an open one whether there could be any recovery notwithstanding the amendment had been granted.” In the present case, no amendment was ever asked for or allowed, and the question whether the plaintiff is attempting to shift his ground or whether he must be confined to the position presented by the statement of claim and the affidavit of defense is one to be determined on the trial.

And now, Oct. 10, 1927, rule to strike off plaintiff’s reply is discharged.

Prom Henry D. Maxwell, Easton, Pa.


author: Gordon, Jr., J.,

text:
    Klauder et al. v. Cox et al.

      Municipalities — Taxpayer’s suit — Parties—Demand on proper officers to bring suit — Duplicity—Parties.
    1. A taxpayer, whose right is common with all taxpayers, has no standing at law to prosecute an action of (fssumpsit for the benefit of the city, even if it be assumed that the defendants in the suit are personally liable for the alleged wrongful appropriations of public moneys.
    2. Even in cases where a taxpayer may bring a suit which the municipal authorities should in the first instance prosecute, he must make a demand upon such municipal officers as can lawfully authorize and direct such a suit to be brought; the city solicitor is not such an officer.
    3. A suit brought by a taxpayer for alleged misappropriations of public moneys is void for duplicity where the defendants were members of two distinct and separate councils and the alleged misappropriations made in two different years by such distinct councils.

      Municipalities — Public officers — Personal responsibility — When officers are not liable for their public acts.

    4. The mayor and members of a city council cannot be held personally liable for moneys appropriated and paid over to a private corporation producing opera in the city where no fraud is shown, but, on the contrary, the utmost good faith was established and conceded in relation to the appropriation.
    5. Officers of government who act in a legislative or judicial capacity are not personally responsible for ultra vires or wrongful acts which are the result of a mistaken understanding of their rights and duties and not of deliberate fraud or corruption.

      Assumpsit. Statutory demurrer to statement of claim. C. P. No. 2, Phila. Co., Dec. T., 1927, No. 14100.

      Elton J. Buckley, for plaintiffs.

      Augustus Trask Ashton,. City Solicitor, and James Francis Ryan and Ernest Lowengrund, Assistant City Solicitors, for defendants.
    May 31, 1928.
   Gordon, Jr., J.,

This is an action in assumpsit brought by the plaintiff, as a taxpayer, against the City of Philadelphia, W. Freeland Kendrick as Mayor of said city, and two groups of defendants, who constituted the councils of said city in the months of December, 1924, and December, 1925. The number of defendants joined as members of said councils are 29, of whom 10 are common to each of said councils, and, of the remaining 19, 10 were members of the council in 1924 and 9 in 1925. The suit is to recover from the defendants a total principal sum of $40,000, appropriated by two ordinances, one passed in December, 1924, and the other in December, 1925, to the Philadelphia Civic Opera Company, a private corporation organized under the laws of the Commonwealth, and subsequently paid to said company in pursuance of the said ordinances. Of the $40,000 thus appropriated, $15,000 were appropriated in December, 1924, and $25,000 in December, 1925. The statement of claim sets forth, in addition to the facts just recited, that-the ordinances referred to were ultra vires and void, being gifts of public money to a private person; that the appropriations in question were, therefore, illegal; that the plaintiff made demand upon the City Solicitor, shortly before the institution of the suit, to begin proceedings against the defendants for the recovery of said illegally appropriated moneys; and that the City Solicitor has neglected and refused to comply with said demand. The City Solicitor has filed an affidavit of defense, executed by the present Mayor of the city, raising questions of law under section 20 of the Practice Act of May 14, 1915, P. L. 483, and the case is before us upon that statutory demurrer.

We have carefully considered the arguments of counsel upon the questions of law raised by the statutory demurrer, and are of opinion that the affidavit of defense is sufficient, as the suit is fatally defective in at least four glaring particulars. The first relates to the standing of the plaintiff to maintain this action in assumpsit for the benefit of the city. It is fundamental that a taxpayer whose right is common with all taxpayers has no standing at law to prosecute an action for the public benefit. He cannot, therefore, maintain this action of assumpsit for the benefit of the city, even if it be assumed that the defendants ate personally liable for the alleged wrongful appropriations of public moneys. The right which he is asserting is the product of equitable principles and considerations, and he must resort for its enforcement to the jurisdiction which created and recognizes it.

The second particular in which the suit is defective relates to the allegation in the statement that the City Solicitor has refused to bring suit against the defendants, as demanded by the plaintiff. Even if this action were otherwise maintainable, the requirement of law that, to enable a taxpayer to bring a suit which the municipal authorities should, in the first instance, prosecute, he must show a demand upon them and their refusal to do so, is not met by showing that the demand, as in this ease, was made upon-the City Solicitor alone. That officer is only the attorney of the city, and he cannot institute such a suit without proper municipal authority. To meet this requirement and ground the right of action, the demand should have been made upon such municipal officers as could lawfully authorize and direct such a suit to be brought.

With respect to the third particular in which the suit is defective, it will be noted that the illegal appropriations sought to be recovered by the plaintiff were made in two different years by distinct and separate councils, the membership of which was entirely different, but ten of the defendants being common to each of the councils. The suit is, therefore, bad for duplicity or misjoinder of actions and defendants. In 23 Cyc., 401, the law is thus clearly stated: “In order that causes of action against several defendants be joined, they must each affect all defendants; so distinct causes of action against different defendants cannot be joined, although in favor of the same plaintiff. For example, a joint action will not lie against two for their several debts upon separate obligations, or for breach of distinct covenants. Nor can a joint action be maintained against a principal debtor and a guarantor, or against principals and sureties where they are liable in different amounts. Upon the same principle, independent tortfeasors, neither of whom has control over the acts of the others, cannot be sued jointly.” Any personal liability that might arise against these defendants in connection with the two appropriations would be upon distinct and separate acts, committed by entirely different groups of persons. Each council was independent of the other. Their acts had no common connection, and, within the respective groups, the responsibility of their members is personal and independent, the wrongs, if any, which were committed being unrelated, both in the personnel of the actors and in the subject-matter of their acts. Thus, there is a clear misjoinder, in the one suit, of the two actions and of the two groups of defendants, and the statutory demurrer on this ground is good.

The three questions of law just discussed relate to matters of form and procedure. The fourth and last goes to the very substance of the suit, and is conclusive against the plaintiff’s right of recovery in whatever form of action it may be sought. It is fundamental in our law that officers of government who act in a legislative or judicial capacity, are not personally responsible for ultra vires or wrongful acts, which are the result of a mistaken understanding of their rights and duties and not of deliberate fraud or corruption. This principle rests upon the soundest public policy. To hold otherwise would be destructive of that freedom of action and judgment in public officers which is so essential to a full, adequate and disinterested performance of their duties. No officer performing discretionary functions can discharge them with an eye single to the public good, who is trammeled by threats of personal responsibility for honest mistakes of judgment. To establish such a doctrine of responsibility might, in a few instances, result in reimbursement of the public treasury. In the long run, however, the benefits that would follow such a doctrine would be far outweighed by the harm that would result from the consequent weak and timid performance of official duty. The public advantages to be derived from the activities of a free and personally disinterested official, who may act without fear of being mulcted in damages for honest mistakes, are obvious, and justify the restriction of personal responsibility to cases involving corrupt and fraudulent official conduct.

The diligence of counsel has disclosed no case in this State in which the question now before us has been definitely raised and decided, so far as concerns the personal responsibility of a member of a municipal council. The authorities outside of this jurisdiction are not entirely in accord, but an examination of them will disclose that many of the decisions cited by the plaintiff as supporting his position are clearly distinguishable upon their facts and that the great weight of authority is in favor of exempting public officials who act in a discretionary or legislative capacity from personal responsibility for their mistakes.

Thus, in Sebring v. Starner, 197 N. Y. Supp. 201, the suit was against the official who had illegally paid out public money and the person who received it, and, while the court restrained further payments, it dismissed the suit for restitution of the money already paid in the following language: “It was conceded on the trial that there was no collusion on the part of the defendants in making the payments to Drake for the use of his automobile. When an action for the restitution of public moneys is brought jointly against the officials who paid or authorized the payment and the official who received it, if there were no intentional wrongdoing or collusion, restitution cannot be enforced, even though there were a technical illegality in making the payment. ... In Stetler v. McParlane, the action was instituted against only the officer who received the money, but the rule as to joint suits is reiterated. After holding that, when ‘the transaction has been executed without fraud or wilful wrong,’ the officials who made the payment are not liable, the court says: ‘The result will not be changed, it seems, though the one who profits is a joint defendant, if joint relief is claimed.’ ”

Again, in Baker et al. v. The State, 27 Ind. Reps. 485, in which a conviction of the members of a common council for maintaining a nuisance upon the theory that the nuisance was created by an ultra vires ordinance was reversed, the court said: “The appellants, as members of the common council, were in the exercise of a discretion given them by law. In subh case, there is no individual liability, either civilly or criminally, unless they acted corruptly.” The case of Incorporated Village of Hicksville v. Blakeslee et al., 184 N. E. Repr. 445, illustrates the same principle: “The demurrer then presents the square question whether a councilman acting in good faith who votes for an unauthorized, and, therefore, void and illegal, resolution or ordinance thereby becomes liable to the village for such sum as may thereafter be paid under the supposed authority of such void resolution or ordinance. That legislative officers are not liable personally for their legislative acts is so elementary, so fundamentally sound, and has been so universally accepted, that but few cases can be found where the doctrine has been questioned and judicially declared. . . . We see no reason for applying a different rule to a municipal legislator, who, in good faith, exercises his discretion in voting for a resolution void because of legislative limitations upon his power, than is applied to a state legislator exercising, his discretion in voting for a statute void by reason of a constitutional limitation upon his power.” See, also, Lough v. City of Estherville, 122 Ia. 479; Jones v. Loving, 55 Miss. 109; Com. v. Kennedy, 118 Ky. 618.

The foregoing cases indicate the weight of authority in this country to be against holding the members of a municipal council liable for their ultra, vires acts where they have acted honestly but mistakenly. Indeed, in only two of the cases brought to our attention from American jurisdictions has a contrary rule been adopted: Wilcox v. Porth, 154 Wis. 422, and Brown v. Railroad et al., 188 N. C. 52. In all the other cases cited by counsel for the plaintiff, the facts clearly distinguish them from the case before us, and they are not, therefore, in conflict with the well-settled trend of authority already indicated. Thus, in Neacy v. Drew, City Treasurer, et al., 187 N. W. Repr. 218, the bill of complaint, to which a demurrer had been filed, was held good because the suit was against a city official and fraud and bad faith were charged. So, also, in City of East St. Louis v. Flannigen et al., 34 Ill. App. 596, the suit was against a treasurer and his bondsman and was based upon allegations of misappropriation of funds. And, again, in Russell v. Tate, 52 Ark. 541, while the aldermen of an incorporated town were held liable for the illegal appropriation to themselves of a sum of money to aid them in building a court-house, which they had personally bound themselves to present to the county, the court distinguished the ease from one calling for an application of the ordinary rule upon the ground that the illegally appropriated moneys were received by the councilmen themselves: “As against the liability of these defendants, it is contended that a city council being in some sort a legislative body, its ihembers are not liable for the erroneous exercise of their discretion in yoting upon measures before them. This is true: Jones v. Loving, 55 Miss. 109; Freeport v. Marks, 59 Pa. 253. But where, after exercising their discretion in voting $1000 of the money of the town to pay an obligation which they and a few others had bound themselves to discharge, they or their building committee took the money, it was a conversion of trust funds, for which each of them, as also the mayor who ordered, and the treasurer who made, the payment, are liable.”

A contrary doctrine appears to be well established in Canada, where it has been frequently held that municipal officers, such as aldermen, who, by their official action, have illegally spent the city’s money, can be held personally responsible for such expenditures: Trudel et al. v. Thibault et al., 26 Rapports Judiciaries cour superieure de Quebec, 542; Patchell v. Raikes, 7 Ontario Law Rep. 470. In these cases, the members of a municipal council are considered as trustees, who are bound to know their rights and duties, and the law applicable to trusteeships, at least in so far as the expenditure of public moneys is concerned, is applied to them. This seems to us to overlook the fundamental conception of the functions and duties of governmental officers, and to take too narrow a view of the capacity in which such officers act in the expenditure of public moneys. There would seem to be no justification in reason for holding that the passage of ordinances appropriating public moneys is any less a legislative act than the passage of any other form of law or ordinance. The raising and expenditure of the public revenues have always been among the., most important forms of governmental activities, and occupy, of necessity, a large part of the legislative attention. In performing this function, municipal legislators undoubtedly act in a legislative capacity, and, as already pointed out, the benefits to be derived from the free and unthreatened exercise of it are not to be frittered away by considerations of the small temporary advantages that might result from an abandonment of the sound public policy which exempts them from personal responsibility for their honest mistakes. The remedy for such mistakes by governmental officials lies in the electorate, who can rebuke a careless or incompetent servant by refusing him a continuance of its confidence at the polls. Beyond this the public officer cannot be called to account, except for wilful and corrupt practices.

There is no contention in the case before us that the defendants acted corruptly or with a deliberate intention to exceed their powers. The appropriations were made in 1924 and 1925, when, it may be assumed, there was no thought that they did not have the power to pass the ordinances in question. It has been only recently that a decision of our highest court has held a later ordinance of a similar kind to be ultra vires and void, and this probably brought about the present suit. Indeed, counsel for the plaintiff has candidly admitted that, in passing the ordinances, the defendants acted in the utmost good faith and under an honestly mistaken belief that they possessed the power to enact them. To hold legislative officers personally liable under such circumstances would halt the arm of government in one of its most important functions and would impair that prompt, efficient and disinterested administration of the public business which is so desirable for the public welfare. It would tend to paralyze the judgment of ah honest official by putting him in terror lest, by an innocent mistake, he.might jeopardize his entire private fortune. The considerations which remove this menace to disinterested official action are grounded in the wisest statesmanship and the most farsighted public policy.

We, therefore, hold that the statement of claim shows no cause of action against the defendants; that the affidavit of defense raising questions of law is sufficient; and, accordingly, enter judgment in favor of the defendants.


author: Brown, Jr., J.,

text:
    Koons et al. v. Koons et al.

      Will — Gift of contents of box — Deed for ground rents.

    1. A gift of the contents of a box in a bank does not include deeds for ground rents contained in the box.
    2. A deed is not property in itself, but merely evidence of title; the property itself is situated elsewhere, and, therefore, cannot be included amongst the "contents” of a safe deposit-box merely because a deed therefor is contained therein.
    Bill in equity. C. P. No. 4, Phila. Co., Sept. T., 1927, No. 17265.

      Jay B. Grier, for all parties in interest.
    April 25, 1928.
   Brown, Jr., J.,

The question in this case is whether certain ground rents owned by Charles B. Koons at the time of his death pass under the following clause of his will: “Item. I give and bequeath the contents of Box in Germantown National Bank, Key No. 1433, to go to my brother, Francis B. Koons.” Among the “contents” of this box were the deeds for the ground rents.

As in most cases where the construction of a will is involved, the controlling principle is the intention of the testator as it may be gathered from the language which he used. Thus, if he makes a gift of a deed in express terms, or if his intent is otherwise clearly expressed that “contents” of a safe deposit-box include a deed to land or ground rent, as the case may be, then title would pass, providing, of course, that he makes it clear that by the gift of the deed he intends to devise such real property. The mere use of the word “contents,” without more, is not- sufficient.

A deed is not property in itself, but merely evidence of title. The property itself is situated elsewhere, and, therefore, cannot be deemed to be included amongst the “contents” of a safe deposit-box merely because a deed therefor is contained therein. It has been so held, even though an undelivered deed was executed by the testator in favor of one to whom the “contents” of a box were given: Parrott v. Avery, 159 Mass. 594; 1 Page on Wills, § 855; 40 Cyc., 1552.

Deeds have been said to be but “the accessories to the title to the land.” They do not pass by such a gift, but go as part of the real property to the persons entitled thereto: Re Robson (1891), 2 Ch. 559; Re Craven, 90 L. T. 390, 100 L. T. 284; 2 Jarmon on Wills, 1087.

In our opinion, therefore, the ground rents do not pass under the clause of the will first quoted above to the complainants, but under the residuary clause to the defendants. A decree nisi will be entered dismissing the bill.


author: Bonniwell, J.,

text:
    Commonwealth v. McDermott.

      Constitutional law — Regulation of solicitation for charities — Exemptions— Equality of opportunity — Act of May IS, 1925 — State Constitution, art. i, sect. 1.

    1. The Act of May 13, 1925, P. L. 644, regulating the solicitation of money or property for charitable, religious or other benevolent purposes, is in conflict with the equality of opportunity in acquiring property guaranteed by article i, section 1, of the State Constitution, in that, by reason of the exemptions contained in section 11, it creates a discrimination between citizens without any just or reasonable ground to sustain the classification and amounts to an arbitrary denial to one person of rights which are given to another.
    2. The whole act falls, as the exemption makes the act itself so uncertain in its application that it 'cannot be presumed that the legislature would have passed it without the exemptions.
    Motions to quash indictments for unlawful sales, &c., of articles for charitable purposes without having obtained a license. M. C. Phila. Co. (Criminal Division), May Sess., 1927, No. 1186.

      T. M. Daly, Jr:, for plaintiff; William Berkowitz, for defendants.
    June 18, 1928.
   Bonniwell, J.,

Defendants were indicted for the sale of articles for charitable purposes without having obtained a license in compliance with the Act of May 13, 1925, P. L. 644, regulating the solicitation of money and property for charitable, religious or other benevolent purposes. Pleas of nolle contendere were entered, but these were subsequently withdrawn with leave of court, and motions to quash the indictments were substituted. Under these motions, the question of the constitutionality of the Act of 1925 was argued. It is conceded that McDermott, one of the defendants, had formed two organizations; one known as the Blue Ribbon Company, and the other as Babies’ Milk Fund. The former handled grocery products and made all the sales to the latter, which, in turn, sold them to the public by solicitation, in which it was stated that the profits derived therefrom would be devoted to the purchase of free milk for poor families. The milk fund paid the Blue Ribbon Company 50 per cent, of the gross receipts from sales, and, after deducting all expenses from the remaining 50 per cent., devoted the balance to charities. It appears that during a period of twenty-seven months the sum of $22,000 was collected from sales and only $862 of this amount used for the purchase of 'free milk.

The other defendants formed similar organizations, known respectively as the Philadelphia Standard Products Company and the Children’s Welfare Society. The former supplied the products which were sold through the latter in the same manner as the Blue Ribbon Company sold to the Babies’ Milk Fund. It is undisputed that between Jan. 1, 1927, and Feb. 26, 1927, the sum of $6575.07 was collected from proceeds of sales, of which amount only $343.62 was used for the purchase of free milk.

Defendants had made application for a certificate of registration under the Act of 1915, but the applications, after hearing, were refused by the Department of Welfare.

The principal objection to the constitutionality of the act is based on the exemption in section 11, in which it is provided: “This act shall not apply to fraternal organizations incorporated under the laws of the Commonwealth, religious organizations, colleges, schools, universities, labor unions, municipalities, or sub-divisions thereof, community organizations within the Commonwealth, nor to charitable institutions or agencies required by the provisions of existing law to file reports with the Department of Welfare or with any other department or office of the Commonwealth.”

It is argued, first, that the act is unconstitutional, because the title does not refer to the exceptions mentioned in section 11, whereby certain organizations and institutions are exempt from its provision. The effect of this argument is not that the title is insufficient to cover the purpose of the act, but that it is broader than the terms of the act itself. The title purports to regulate the solicitation of money and property “for charitable, religious, benevolent, humane and patriotic purposes.”

This brings within the scope of the act all individuals and organizations of every kind which attempt to raise money for the purposes stated. It is only when the body of the act itself is examined that it is discovered certain organizations are exempt. That this is not a fatal defect has been decided by our appellate courts in Snyder County v. Wagenseller, 262 Pa. 269; Cleary v. Quaker City Cab Co., 285 Pa. 241, and Com. v. Pflaum, 50 Pa. Superior Ct. 55.

A far more serious question arises when the exemptions provided in the act are considered with reference to the general purpose and object intended to be accomplished. The act is necessarily a police regulation passed for the protection of the general public from solicitation by unauthorized persons or by those who have in view the promotion of some object for private or personal gain, rather than the interests of the particular charity or object for which the money is ostensibly solicited. But in carrying out this purpose, it is necessary for the legislature to do so within certain rules prescribed by both the State and Federal Constitutions. The act, when carried out, must not deny to any person within its jurisdiction the equal protection of the laws, nor must it grant to any individual or body a special or exclusive privilege or immunity. Classification is proper, but even in the acts passed under the police power it must be controlled by the principle that the classification is unconstitutional unless a necessity therefor exists, and that this necessity must be one springing from the manifest peculiarities of the case, clearly distinguishing those of one class from the other, and imperatively demanding legislation for each class separately that would be useless and detrimental to the others: Ayar’s Appeal, 122 Pa. 266, 281; Com. v. Puder, 67 Pa. Superior Ct. 11, 16. Where proper subjects for classification exist, legislation for a class as distinguished from the general subject is not special, but general, and classification is a legislative question, subject, however, to judicial review, so far as to see that it is founded on real distinctions, not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition: Seabolt v. County Commissioners, 187 Pa. 318, 323; Com. v. Puder, 67 Pa. Superior Ct. 11, 18.

The act here involved purports to be a general one, applying to all individuals, associations or organizations who undertake by any means to solicit donations or subscriptions for any charitable or benevolent purpose. It is not until we come to section 11 that a doubt arises as to its constitutionality. This section limits the act by exempting from its provisions various organizations which would otherwise be within its express provisions. Some of the exemptions mentioned are definitely designated, such as colleges, universities, labor unions, etc., but this is not true of others. For instance, religious organizations are exempt, thus contradicting the provision of the title which makes the act apply to solicitations for religious purposes. Community organizations are also exempt without any definition to indicate just what is meant by community organization. The terms “religious” and “community” organization are broad enough to cover a multitude of organizations. Thus, in Craig v. First Presbyterian Church, 88 Pa. 42, it was held that Sunday school rooms and lecture-rooms were included within the definition of “religious purposes,” notwithstanding they were frequently used for fairs and social gatherings, the Supreme Court saying (page 49) : “Nor do we think it detracts from the character of the occupancy of the building, that it is proposed to use the lecture-room occasionally for social gatherings incident to the church, for societies for benevolent objects, and for fairs held by the ladies to raise funds for missionary work; nor that it is proposed to sometimes furnish a ‘plain tea’ to those members who attend evening service from a distance. The body needs food as well as the soul. If the church requires the building for its Sabbath schools and for. a lecture-room, and such purposes are religious in their nature, as we have endeavored to show, of what possible matter can it be should the church utilize said building by applying it to other collateral objects, not in themselves technically religious, yet germane to the general purpose.”

In Knight’s Estate, 159 Pa. 500, a corporation formed for the purpose of “uniting persons so as to be incorporated socially for the improvement of their intellectual and moral condition, by the dissemination of scientific truths by means of literature, music, lecture and debate,” was for a religious purpose. The Supreme Court said, by Mr. Justice Williams (page 502): “In its broadest sense, religion comprehends all systems of belief in the existence of beings superior to, ánd capable of exercising an influence for good or evil upon, the human race; and all forms of worship or service intended to influence or give honor to such superior powers. It is in this sense of the word that we speak of the religion of the North American Indians, the religion of the fire worshipers, or the ancient Egyptians. A bequest in aid of any such system would, therefore, be a bequest for a religious use within the meaning of the act.”

In Hebrew Free School Ass’n v. New York, 4 Hun (N. Y.), 446, 449, it was held that a religious society was not limited to societies organized as incorporated churches, but includes those whose objects are of a benevolent, charitable or missionary character, as distinguished from private and sectarian institutions. These decisions are referred to here merely for the purpose of pointing out the difficulty of defining and carrying into effect the provisions of the Act of 1925, and of determining to what particular organization it should or should not apply. While it may be contended that this question is practically one to be decided in each case by the Department of Welfare, to which department the act delegates a certain discretion in the granting or refusal of certificates, it has a far more important''bearing on the question of the constitutionality of the act, which cannot be overlooked by the courts.

The act can be sustained, if at all, only on the ground that it is an exercise of the police power of the State. Assuming that the subject for the exercise of the power was a proper one, it must be exercised in such manner as not to amount to a discrimination between persons equally qualified to come within its provisions, giving exemption to one and not to another. In other words, whether or not there is a real distinction between a religious organization, for example, and another organization not purporting to be a religious one, but interested in the same general subjects.

The basis of the act in question is protection to the public from fraudulent solicitation for funds under the guise of aiding a charity. The purpose is a laudable one and should be encouraged. But that purpose must be accomplished, if at all, in a proper manner consistent with constitutional rights. The operation of the act, as drawn, may be illustrated by assuming the existence of two bodies of reputable citizens undertaking to aid some worthy benevolent or charitable purpose. The one body claims no religious affiliation in connection with the enterprise, .while the other decides to operate under the auspices of some existing or newly-created religious organization. The act would apply to the one and not to the other, though the need for protection to the public, and, therefore, the excuse for interference by the legislature, will be the same in each case. Let us assume, further, that one of the bodies above referred to happened to be composed of individuals whose real purpose was to create personal profits under the guise of a worthy charitable object. Would it not be possible to evade the law by operating under the guise of religion in any of its many forms?

The same result would appear in applying the exception of “community organizations.” One body of citizens, in their endeavor to promote a worthy object, would be subjected to the penalties of the act, while another body would be exempt therefrom merely because they took the precaution to first form a “community” club or organization. Whether they did or did not do so would not have the slightest bearing on the proportion of the fund raised which would ultimately go to the beneficiary thereof. Likewise, evilly-disposed persons would readily evade the law by operating as a community enterprise, while those most able and willing to give aid would be excluded until they had duly procured a license under the act. We think the result is clearly a discrimination between citizens without any just and reasonable grounds to sustain the classification.

In the ease of Com. v. Zacharias, 181 Pa. 126, it was held that while the general provisions of the Act of June 16, 1891, P. L. 313, relating to the conduct of retail drug business, was within the proper exercise of the police power, an exception in the act discriminating in favor of the administrator or widow of a deceased pharmacist would make the act unconstitutional. This question was not necessary to the decision of the case, but in the course of the opinion by Mr. Justice Williams it was said (page 130): “The requirement that one conducting such a trade should have such chemical and pharmaceutical knowledge as to qualify him to handle intelligently the dangerous commodities in which he deals is reasonable. It can be supported without regard to the exception, which is a repeal pro tanto of the prohibition which it was the purpose of the statute to make. The exception makes a discrimination between equally unqualified parties, giving to one exemption from the operation of a rule enforced against the other. This is not protection to the public, but rank injustice to individuals. There is no more reason why the administrator or widow of a pharmacist should be permitted to manage a business of which he or she knows nothing than why any other administrator or widow should be allowed to do so. If the reason of the exception is sympathy for a widow, then all widows are prima facie equally entitled to sympathy and have the same reason to claim exemption from the operation of the law. The exception would seem to fall squarely under the rule laid down in Sayre Borough v. Phillips, 148 Pa. 482. It is a discrimination made between those who are equal under the law. It is an arbitrary gift to one, and an arbitrary denial to another, which cannot be upheld.”

In the opinion of the same case in the Superior Court will be found the following relevant language (3 Pa. Superior Ct. 264, 271): “Could it be successfully contended that the Act of 1891 would be constitutional if this provision were a little broader in its scope, and should except from its provisions all persons who were widows in the Commonwealth of Pennsylvania? Is it any less unconstitutional because it exempts from its provisions the widows of a certain class of people? Or would it not be clearly unconstitutional if the act provided that all legal representatives of deceased persons should have the right to carry on such business and should be exempted from the provisions of the Act of 1891? Is it not just as unconstitutional to say that such business may be carried on indefinitely by the legal representatives of a certain class of individuals in the Commonwealth of Pennsylvania, even though such deceased persons may have been, during their lifetime, competent pharmacists? We fail to see the distinction, and regard the act as being as unconstitutional in the one instance as it would be in the other.”

In Sayre Borough v. Phillips, 148 Pa. 482, a local ordinance, in regulating the business of peddling, but exempting residents of the borough from its provision, was held invalid. The Supreme Court said (page 489):

“So long, however, as it bears upon all persons impartially, it may fairly claim to be a police regulation intended to destroy a business that was regarded as injurious; but at the end of the prohibiting section of the ordinance a proviso may be found which exempts all residents of the Borough of Sayre from its operation. The proviso converts the police regulation into a trade regulation. The ordinance, taken as a whole, does not prohibit an injurious business, but injurious competition.
“That the resident dealer and peddler may enjoy a larger trade, the nonresident peddler is shut out. If the borough authorities may lawfully regulate the business of peddling for the benefit of residents, we see no reason why they may not lay their hands in like manner on every department of trade and of professional labor, and protect the village lawyer and doctor as well as the village grocer and peddler.”

In Chalmers v. Philadelphia, 250 Pa. 251, a classification which distinguished between engineers who operated boilers of more than ten-horse power and those who operated smaller ones was held improper on the ground that no greater skill or judgment was required in one case than the other, and the classification was not based on any real distinction. In Com. v. Casey, 231 Pa. 170, an act regulating the hours of mechanics and distinguishing between those employed by municipal corporations engaged in public work and those employed in other similar work for private employers was improper because there was no real distinction between the number of hours employed in the work of the same character, whether for an individual or a public corporation, and it was, therefore, not a police but a trade regulation. In the opinion of the court (page 256) it was said: “Even though the subject of the legislation is such that separate laws for separate classes are demanded, if the class to which it applies is unnecessarily restricted or improperly selected, still the law is special, since a more enlarged class or other objects similar in character should also have had the benefit of its remedial force.” See, also, Com. v. Clark, 14 Pa. Superior Ct. 435, where similar legislation distinguishing between one who worked for an individual and one who worked for a corporation was condemned.

In Com. v. Humphrey, 288 Pa. 280, it was held that the Act of May 25, 1921, P. L. 1131, was unconstitutional because it exempted from its operation officers and directors of a corporation engaged in interstate commerce, the Supreme Court saying, by Chief Justice Moschzisker (page 289): “What reasonable grounds can there be for permitting officers' and employees of corporations engaged in interstate commerce to practice the profession of engineering in Pennsylvania without registration, while requiring all officers and engineers of corporations not engaged in interstate commerce to be registered?”

We are of the opinion that, while the act in question contains a proper subject-matter of police regulation, the exemptions provided in section 11 make it operate to discriminate unequally between those who are equal under the law. It amounts to an arbitrary denial to one person of rights which are given to another, thus interfering with the personal rights and liberties of the individual, as guaranteed by the State and Federal Constitutions, without such justification for the classification adopted for the protection and welfare of the public. We can think of no protection which the public might require from solicitation in the name of charity which it would not equally require if the same solicitation and for the same purpose be made in the name of religion. It is a matter of history that frauds have been perpetrated from earliest times by evilly-disposed persons in the name of religion. This may be accounted for by the fact that it affords a ready cloak for hypocrisy. “Fraud, in its nature, eludes the light and walks in ambushes and deceits:” By Coulter, J., in Kinzer v. Mitchell, 8 Pa. 64, 80. As a subject-matter of police regulation, therefore, we are unable to see how a class line can be drawn on religious grounds.

The question remains as to whether the whole act must fall, or whether a part of it can be eliminated and the rest enforced. The difficulty with the latter course is that the exemption makes the act itself so uncertain in its application that we cannot presume the legislature would have passed the act without the exemption. It is useless to speculate as to what the legislature might have done. This question was discussed in Com. v. Humphrey, supra, and we cannot do better than quote the following extract from the opinion of the Chief Justice (page 290): “The law is that, wherever part of an act found to be unconstitutional can be severed from the rest of the statute without destroying its entirety of thought, such severance may be made and the act sustained, but where the severance would destroy the unity of thought, the whole act necessarily falls. This rule is expressed in Rothermel v. Meyerle, 136 Pa. 250, 265, as follows: ‘If the part which is unconstitutional in its operation is independent of, and readily separable from, that which is constitutional, so the latter may stand by itself, as the reasonable and proper expression of the legislative will, it may be sustained as such; but if the part which is void is vital to the whole, or the other provisions are so dependent upon it and so connected with it that it may be presumed the legislature would not have passed one without the other, the whole statute is void.’ See, also, Booth & Flinn v. Miller, 237 Pa. 297, 309. We cannot presume that the legislature would have passed the present act without the exemption contained in paragraph (g) of section 24, any more than we are waranted in thinking it would have passed the act, even though all the numerous exemptions inserted therein had been omitted; hence, we must assume these exemptions to be inseparable expressions of the legislative will, and as one, at least, of them is unconstitutional, the whole act falls.”

In the present case the act was aimed against those organizations, individuals and groups of individuals who do not come within the exemptions, and it is in the application of the act to them that the discrimination heretofore discussed results. If this discrimination results in arbitrarily denying to one citizen or group of citizens rights which are given to another, the whole act is necessarily void.

The motions to quash the indictments are sustained.


author: CLARK, P. J.,

text:
    Vorse’s Estate.

      Guardian and wardr^-Choice of guardian by ward — Ward over fourteen years of age — Conclusimeness of appointment — Act of June 7, 1917, P. L. kV7.

    The right of a minor over the age of fourteen years to choose his own guardian is not an absolute one, but is subject to the control of the court, resting in its sound discretion, the best interest of the child being the essential thing to be kept in mind.
    Petitions for appointment of guardian of a minor over fourteen years of age. O. C. Erie Co.
    J. O. Hertzler, for petitioner, Martin L. English.

      George M. Mason, for petitioner, Ida English.
    Nov. 4, 1927.
   CLARK, P. J.,

On the same day there came before the court for consideration two petitions for appointment of a guardian for Blanche Luella Vorse, a minor over fourteen years of age.

One of these petitions was signed Martin L. English, as next friend, who is the grandfather of the minor, and it asks for the appointment of First National Bank of Girard as guardian. Counsel modified the request by stating that the appointment of 'any trust company would be satisfactory to the petitioner.

The other petition was signed by Ida English, an aunt of the minor and as her next friend, and requested the appointment of F. A. Lloyd as guardian.

As we understand the situation, neither of the attorneys knew the other was presenting a petition until their appearance in court. Counsel advised the court that habeas corpus proceedings were pending in the Court of Common Pleas for the custody of this minor. The contest being between the grandfather, the aforesaid Martin L. English, and the aunt, the said Ida English, we awaited the outcome of this controversy before deciding the petitions before us.

The custody of the child was awarded to the aunt, Ida English. It was contended before us that the child being over fourteen years of age, her selection was final, and especially in the absence of some disqualifying prohibitions and that the court’s supervision and discretion ended.

The contrary was argued to the effect that the court’s discretion did not cease because a minor over fourteen years of age had made choice of a guardian.

We are inclined to the belief that the latter’s contention is correct. The following is an extract from the laws governing the appointment of guardians : “The Orphans’ Court of each county shall have the care of the persons of minors resident within said county and of their estates and shall have power to admit such minors over the age of fourteen when and as often as there shall be occasion to make choice of guardians and to appoint guardians for such as are under the age of fourteen or otherwise incompetent to make choice for themselves:” Section 59 (at), Act of June 7, 1917, P. L. 447-529.

This is section 2 of the Act of March 29, 1832, 1 Purd. 1083, altered by inserting in the fourth line the words “over the age of fourteen,” by substituting in line six and seven the words “are under the age of fourteen” for “they shall judge too young” and by omitting the first part of the proviso which is covered by the clause (b). For further tracing of prior legislation, see the notes of the commissioners appointed to codify and revise the law of decedents’ estates, set forth in the Report of the Commissioners of 1917, page 252.

The Supreme Court has held that a legal discretion is vested in the Orphans’ Court and when once exercised is not the subject of review by a court of errors: McCann’s Appeal, 49 Pa. 304, and followed in Gray’s Appeal, 96 Pa. 243. Bearing upon this subject, see Filer’s Estate, 7 Lacka. Leg. News, 318, and, also, a more recent decision, Schell’s Estate, 7 D. & C. 11 (decided in 1925).

There is not any doubt that when a minor attains the age of fourteen years he may appear in the Orphans’ Court and make the choice of a guardian, and can even do so when the change of a guardian is desired, but that choice is not conclusive; it may not be accepted; it does not terminate the discretion of the court.

“These minors are wards of the court and whether under or over fourteen years the matter of a choice of a guardian is not an absolute one, but rests in the sound discretion of the court, keeping in mind the best interest of the child. If the choice of a guardian by a minor over fourteen years of age was an absolute one beyond the discretion and supervision of 'the court, then, indeed, the minor well could name his own guardian, and the petition to the court for permission to choose would be a vain and useless thing:” Schell’s Estate, supra.

Several authorities are cited in this decision and it may be profitably examined by those who are interested in the subject.

In view of existing conditions, among them the fact that the aunt, Ida English, has been awarded the custody of the child, and also that she is the petitioner for appointment of F. A. Lloyd for guardian, and there being no objections to him as not being a proper person, he is appointed guardian by the court, filing a bond in the sum of $2600, to be approved by the court.

From Otto Herbst, Erie, Pa.


author: Taulane, J.,

text:
    Teblum v. Gaier et al.

      Equityi — Service of process — Principal defendant — Act of April 6, 1859.

    1. The principal defendant within the meaning of the Equity Service Act of April 6, 185í>, P. L. 387, is the one without whom the plaintiff’s right against the non-resident defendant could not be adjudicated.
    2. Where a stockholder of a corporation who has fraudulently acquired his stock and transferred it to his wife, is made a defendant in a bill in equity with his wife, he is the principal defendant, and his wife, on being served with the bill in another state, cannot successfully allege the contrary.
    Rule to set aside service of bill in equity. C. P, No. 1, Phila. Co., March T., 1926, No. 5139.

      Thomas F. Gain (Maurice G. Weinberg with him), for plaintiff.

      Bertram K. Wolfe, for defendants.
    Dec. 31, 1927.
   Taulane, J.,

Tillie Gaier, one of the defendants, was served with .the bill in equity in New York City, where she resides, under the provisions of the Act of April 6, 1859, P. L. 387, which authorizes such service, if the principal defendant is served. She now moves to set aside the service on the ground that Paul Gaier, the other defendant, is not a principal defendant.

The amended bill charges that Paul Gaier, the husband of Tillie Gaier, is the owner of all the capital stock of the Metropolitan Hygrade Clothing Manufacturing Company; that Paul Gaier and the plaintiff entered into an agreement, whereby they each agreed to acquire by purchase one-half of all the capital stock of the Universal Sportwear Company, and, when acquired, to cancel it and turn over all the assets of said company to the Metropolitan Hygrade Clothing Manufacturing Company, whereupon Paul Gaier was to transfer and deliver to the plaintiff one-half of the capital stock of the Metropolitan Hygrade Clothing Manufacturing Company.

The bill further charges that the plaintiff and Gaier acquired all the capital stock of the Universal Sportwear Company and turned over all its assets to the Metropolitan Hygrade Clothing Manufacturing- Company; that the plaintiff has performed his part of the agreement, • but Gaier has excluded him from participating in the business of the Metropolitan Hygrade Clothing Manufacturing Company and refuses to transfer- to him one-half of its capital stock; that Gaier, to defraud the plaintiff, has put all the stock of the Metropolitan Hygrade Clothing Manufacturing Company in the name of Tillie Gaier, his wife.

The amended bill prays for an accounting and an order for the transfer to the plaintiff of one-half of the capital stock of the Metropolitan Hygrade Clothing Manufacturing Company.

The Act of April 6, 1859, provides that “where the court have acquired jurisdiction of the subject-matter in controversy, by the service of its process on one or more of the principal defendants, to order and direct that any subpoena, subpoenas, or other process to be had in such suit, be served upon any defendant or defendants therein, then residing or being out of the jurisdiction of such court, wherever he, she or they may reside or be found.”

Who is a principal defendant within the meaning of the Act of 1859 is now well, settled, and he is one without whom the plaintiff’s right against the nonresident defendant could not be adjudicated: Coleman’s Appeal, 75 Pa. 441; Vandersloot v. Pennsylvania Water and Power Co., 259 Pa. 99; Bird v. Sleppy, 265 Pa. 295; and Clark v. Elkin, 283 Pa. 339.

Before the ownership of the stock of the Metropolitan Hygrade Clothing Manufacturing Company becomes material, the plaintiff must first establish (a) that he entered into the agreement with Paul Gaier; (b) that he has performed his terms of the agreement; and (c) that he is entitled to one-half of the stock of the Metropolitan Hygrade Clothing Manufacturing Company.

The basis of the plaintiff’s case is his agreement with Paul Gaier. If he fails to establish his rights against him his whole case falls, and it would then be immaterial whether Gaier or his wife owns the stock.

Surely, Paul Gaier is the principal defendant. On a rule to set aside service under the Act of 1859, a non-resident defendant may raise preliminarily the question whether the other defendant, who has been served, is a principal defendant: Bird v. Sleppy, 265 Pa. 295.

Tillie Gaier alleges that Paul Gaier is not the principal defendant, because she, and not her husband, is the lawful owner of the stock. Whoever is the owner of the stock, Paul Gaier is still the principal defendant, and Tillie Gaier, under the allegations of the bill, is a necessary party. There is no need of a preliminary decision as to the ownership of the stock.

And now, to wit, Dec. 31, 1927, the rule of Tillie Gaier to set aside service of the bill under the Act of April 6, 1859, P. L. 387, is discharged.


author: Potter, P. J.,

text:
    Benfer v. Benfer.

      Equity — Jurisdiction—Ownership of personal property — Remedy at law.

    1. Equity has no jurisdiction to restrain the sale of articles of personal property, consisting of farming implements and stock which can be readily procured in the market, at the instance of one who claims ownership therein, where the contest is as to who is the rightful owner.
    2. Plaintiff has an adequate remedy at law in replevin to establish his title.

      Preliminary injunction — Affidavit as to irreparable damage — Equity rules —Practice.

    3. A bill for a preliminary injunction is defective if not supported by affidavit that irreparable loss will result to plaintiff before a hearing can be had on notice to defendant, as required by Rule 38.
    4. Under Equity Rule 48, relating to preliminary objections to a bill, such objections may be properly raised by petition and motion, instead of demurrer, so long as the question to be raised is brought before the court.
    Bill for injunction to restrain sale of personal property. C. P. Snyder Co., Feb. T., 1927, No. 2, in Equity.

      E. E. Pawling and Charles P. Ulrich, for plaintiff.

      A. F. Gilbert and Jay G. Weiser, for defendant.
    June 21, 1927.
   Potter, P. J.,

A bill in equity, asking for an injunction, was filed, setting out that the plaintiff is the owner and possessor of certain articles of personal property, consisting of horses, cattle, chickens, farming implements, harnesses and other articles used in farming; that the defendant has advertised the said chattels for public sale as his property, and asking for an injunction restraining him from selling the said articles of personal property.

It seems both these parties claim to own these articles of personal property. Just who is the rightful owner we cannot say, and from the files before us, we have no means of ascertaining. It seems to us that, before equity can entertain jurisdiction, the rightful owner should be first established by a suit at law. A court of chancery is not for the establishment of legal rights, but, in proper cases, of giving protection to their enjoyment after they are first established, if disputed, in a court of law: Electric Light Co. v. Electric Light Co., 200 Pa. 366.

The subject-matter of this contention is personalty, farming stock, which can be fully compensated by a money value. For this reason, we are again of the opinion that equity will not lie. Should the defendant interfere with the ownership or possession of the said chattels, alleged by the plaintiff to be his, he has a full and adequate remedy by a suit in replevin: Harlan v. Harlan, 15 Pa. 507. Or a suit in trespass will lie. But a bill in equity will not lie to recover chattels in specie unless there has been a breach of trust or a remedy at law is inadequate: Bucks County Ry. Co. v. Guarantors Finance Co., 23 Pa. C. C. Reps. 101. And the mere insolvency of a party does not affect the remedy.

It is a well-settled doctrine that equity will not, in general, decree specific performance of contracts concerning chattels. Their money value, recovered as damages, will enable the party to purchase others in the market of like kind and quality: Goodwin Co.’s Appeal, 117 Pa. 514.

The goods in contention here are farming stock and implements, which can be purchased in the market at any time, and have no special or peculiar value attaching to them. And if they belong to the plaintiff, he can replevy them or sue for their value.

There are exceptions to this general rule, as where the article in question has a peculiar intrinsic exclusive value in itself which cannot be compensated by money, as, for example, an exclusive quality of timber that cannot be replaced (Strause v. Berger, 220 Pa. 367), or the maps and plots and drawings of a surveyor (McGowin v. Remington, 12 Pa. 56), or a family heirloom, or valuable paintings, or the like. But where the articles are of common every-day use, as farm stock or farming implements, which have no peculiar monetary value in themselves, we do not think equity has jurisdiction.

Equity Rule 38 provides that the bill shall be supported by the affidavit of the plaintiff or some one cognizant of the facts, stating that immediate and irreparable loss or damage will result to the plaintiff before the matter can be heard on notice. We find the affidavit to the bill defective in this respect, and if all else in these proceedings was correct, we would need to have this omission corrected before proceeding.

There appeared to be somewhat of a contention between opposing counsel at the argument, in that a demurrer should have been filed by the defendant, instead of the petition and motion as filed by him. Equity Rule 48 provides that “on or before the date fixed for filing an answer on the merits, and thereafter by leave of court upon cause shown, the defendant may, by answer filed, accompanied by an affidavit that it is not interposed for the purpose of delay, preliminarily object to the bill for one or more of the following reasons: . . .” Then follow the reasons which do not concern this contention. The defendant filed the objection to the bill in proper form, as we think, which may be taken as a demurrer, or as a rule or as an objection, as is provided by the rule. It makes no difference by what name it may be called. It brings before the court the objection to the bill and calls upon us to pass upon it.

We think the plaintiff has mistaken his remedy in this instance, which should be in a court of law.

The objections to the bill, as filed by the defendant, are sustained, the preliminary injunction heretofore granted by us is dissolved and the bill is dismissed, at the costs of the plaintiff.


author: Stock, J.

text:
    Spring Garden Township’s Annexation.

      Municipalities — Cities of the third class — Townships — Annexation— Signers of petition for annexation — Amendment of the petition.

    1. The Act of July 11, 1923, P. L. 1047, providing for the annexation of parts of townships, etc., to cities of the third class, requires that the petition praying for annexation shall be subscribed within three months immediately preceding its presentation to court; but it does not require that the petition shall contain an averment that it was so subscribed.
    2. Where a petition praying for the annexation of a part of a township to a city of the third class does not contain an averment that the petition was subscribed within three months immediately preceding its presentation to court and has thereto attached a plot showing the part of the township desired to be annexed, with the metes and bounds indicated by courses and distances noted in Arabic figures and surveyors’ symbols, and having abbreviations for "street” and “avenue,” without giving the metes and bounds in letters and words, an amendment showing that the petition was signed within three months prior to its presentation, and giving, in letters and figures, the metes and bounds of the portion of the township intended to be annexed, will be allowed.
    3. The Act of July 11, 1923, P. L. 1047, requires that the petition for annexation shall be signed by 25 per centum of the persons residing in the territory desired to be annexed who are both taxable inhabitants and freeholders; and it does not require the petition to be signed by 25 per centum of the taxable inhabitants, or of the total number of taxable inhabitants residing within the whole ward of the township of which a part is intended to be annexed.
    Objections to petition for annexation of part of vSpring Garden Township to the City of York, and motion to amend said petition. Q. S. York Co.

      Jacob E. Weaver, for petition and motion to amend; Michael S. Niles, contra.
   Stock, J.

Certain taxable inhabitants who are freeholders residing within a certain part of the Township of Spring Garden presented their petition to this court on Aug. 1, 1927, expressing their desire for the annexation of that part of said township to the City of York. On the same day, an order was made providing for the publication and service of notice of the filing of said petition.

The petition set forth the following averments:

“1. That they are bona fide residents, taxable inhabitants and freeholders of that part of the third district of Spring Garden Township, York County, Pa., as designated upon a draft hereto attached and made part hereof.
“2. That your petitioners are in excess of twenty-five per centum of the taxable inhabitants and resident freeholders of the territory, as set forth in the draft hereto attached and made part hereof, being a portion of the third district of said Spring Garden Township, York County, Pa.
“3. That said portion of the third district of said Spring Garden Township is adjacent to and contiguous to the City of York, a city of the third class in the State of Pennsylvania.
“4. That your petitioners desire annexation of that portion of the third district of said Spring Garden Township as lies within the confines of the draft hereto attached, with the City of York, Pa.”

It is verified by three of the petitioners, who made affidavit that the facts set forth in said petition are true and correct, and “that the signatures to said petition represent at least twenty-five per centum of the bona fide residents and taxable inhabitants who are freeholders in that part of Spring Garden Township, York County, Pa., as shown by the draft hereto attached.” Attached to the petition is a draft of the part of the township of Spring Garden proposed to be annexed, describing its boundaries by metes and bounds.

The Township of Spring Garden, through its solicitor, presented its motion on Aug. 15, 1927, asking for the revocation of the order made Aug. 1st on said petition and assigning as reasons therefor (1) that the petition does not show that it had been signed by the subscribers thereto within three months immediately preceding ■ its presentation; (2) that a description by metes and bounds of the part of the township proposed to be annexed was not attached to the petition; (3) “that it was not signed by at least twenty-five per centum of the taxable inhabitants, as shown by the assessor’s list for the last preceding assessment;” and (4) that the advertisement made under said order is not sufficient. At the time of the argument it was conceded that the fourth objection could not be raised at this time.

At the argument, petitioners presented an amended affidavit, executed by three of their number, containing two additional averments, (1) a description by metes and bounds, in words, of the part of the township proposed to be annexed, and (2) an averment that the “petition was subscribed by the persons whose names are appended thereto within three months immediately preceding its presentation to said court.” Petitioners moved to file this amendment. This was objected to by the solicitor for the township. The allowance of this amendment would cure the defects in the petition, if such existed, as are complained of in the first two objections raised by the township.

This procedure is under the Act of July 11, 1923, P. L. 1047. This act does not require an averment in the petition that the subscribers had signed within three months immediately preceding its presentation. It is not contended by the township that the signatures were not so procured within that time limit. The objection is only that the petition does not contain an averment to that effect. The allowance of the amendment averring signing within three months would, in the absence of a denial of this fact, establish it as a fact for the purpose of this proceeding.

In the petition for the annexation of the Borough of Sheraden to the City of Pittsburgh, there was no distinct averment as to the time of the signing except that the signatures were affixed “since the first day of June, 1906.” It does not appear in the opinion when the petition was filed, but it is to be presumed that this date was within the period of three months required by the act, and it is held that this was a sufficient averment of the time of signing. The Superior Court, however, indicated in this case that this act should be liberally construed, and where the petition lacked an averment of contiguity of the borough to the city and an averment that both municipalities were located in the same county, which averments were required by the statute, the lower court was permitted to supply these facts by taking judicial notice of them: Sheraden Borough, 34 Superior Ct. 639:645. The Sheraden Borough case arose under the Act of April 28, 1903, P. L. 332, which is a general act regulating annexation to any city, and has been repealed by the Act of 1923 in so far as it relates to annexation to cities of the third class. The language of the two acts and the provisions relative to averments in the petition are similar.

The second objection raised is based upon the provision in the last clause of section 1 of the Act of 1923: “There shall be attached a plot showing such portion, with a description by metes and bounds,”

The plot attached to the petition describes graphically the part of the township proposed to be annexed. The courses and distances are noted in Arabic figures and surveyors’ symbols. The boundaries are noted in printed words. “St.” and “Ave.” are used as abbreviations of “street” and “avenue,” respectively. The description on the plot is as complete as any that could be given in words, and contains all the information set forth in the proposed amendment, except that the name Edgecombe does not appear on the plot to identify the avenue by that name. The proposed amendment gives the description by words. It supplies no new information, but would clarify that already given and meets the objection of the township that one untutored in reading surveyors’ drafts might be unable to understand the description contained on the plot.

These first two objections are merely as to matters of form. It would seem proper to allow the amendment.

The third objection is made to a matter of substance. At the argument, counsel agreed to the following facts:

There were approximately 93 freeholders who were taxable inhabitants of the part of the township proposed to be annexed, as shown by the assessor’s list for the last preceding assessment made in the year 1927; that 45 of these signed the petition for annexation.

There were 314 taxable inhabitants resident within the part of the township proposed to be annexed who were on the registry list of voters for the last preceding general election of the township, to wit, the general election held November, 1926; that 70 of these signed the petition.

That in the 3rd Ward of Spring Garden Township, in which ward the part of the township proposed to be annexed lies and is included, there were 553 taxable inhabitants, according to the registry list of voters for the last preceding general election of the township, held November, 1926.

The township maintains, first, that while the signers to the petition must possess both qualifications, (a) that of a freeholder, (b) that of a taxable inhabitant, the percentage is fixed by the number of those possessing the one qualification, that of taxable inhabitant. Carrying this construction to its logical conclusion, where the number of resident freeholders are less than 25 per centum of the number of taxable inhabitants, no annexation could be had under this act. The provision of the Act of 1923 regulating the number of signers is in the following language: “A petition, signed by at least twenty-five per centum of the taxable inhabitants, who shall be freeholders of the territory desiring annexation, shall be presented,” etc.

It is clear that the number of petitioners is based upon the total number of those who possess both qualifications, to wit, that of freeholder and that of taxable inhabitant. It would, therefore, appear that the percentage is to be reckoned in the instant case on 93, and that the petition must be signed by at least 24 such persons. As the petition is signed by 45 who possess both qualifications, it bears sufficient signatures to give the court jurisdiction.

The township, however, makes the further argument that the percentage must be based upon the total number of taxable inhabitants residing within the whole 3rd Ward of Spring Garden Township, for the reason that this ward comprises but one election district; that since the Act of 1923, § 4, provides that the question of annexation shall be submitted to the voters of the part of the township seeking annexation by printing upon the ballot to be used at such election the question on annexation, this ballot is the official ballot for the entire voting district, and, hence, voting on the question of annexation cannot be restricted to those voters who reside within the part seeking annexation; that since all the voters in the 3rd Ward will have the opportunity to vote on the question of annexation, the percentage necessary to initiate the proceedings must be based upon the total number of taxable inhabitants resident in the entire ward.

This argument, although it brings up a practical difficulty which is not provided against in the act, may be answered by quoting the first clause of the second paragraph of section 1 of the Act of 1923, which fixes the number of petitioners at twenty-five per centum of the taxable inhabitants “who shall be freeholders of the territory desiring annexation.” The whole ward does not desire annexation, but only a part; hence, this argument falls.

And now, to wit, Aug. 22, 1927, the amendment presented Aug. 17, 1927, is allowed, and the motion to revoke the order made Aug. 1, 1927, is overruled.

From Richard E. Cochran, York, Pa.


author: Iobst, J.,

text:
    Neagley v. Cassone.

      Negligence — Fire in hotel — Fire-escapes—Failure of guest to try to use fire-escape — Proximate cause — Acts of May 8, 1909, July 18, 1917, June 7, 1919, and April 20, 1921 — Province of court and jury.

    1. Where a guest of a hotel is injured by a fire, he cannot recover damages from the owner on the ground that fire-escapes and other appliances as required by the Acts of May 3, 1909, P. L. 417, July 18, 1917, P. L. 1074, June 7, 1919, P. L. 406, and April 20, 1921, P. L. 190, had not been properly installed or maintained, where it appears from the uncontradicted evidence that he locked himself in his room and made no attempt whatever to avail himself of such escapes or appliances, although he had knowledge of them.
    2. In such case, the negligence of defendant was not the proximate cause of the injury.
    3. As there were no disputed facts, a non-suit was properly entered.
    4. Civil liability does not attach for breach of the statute alone; it must affirmatively appear that the injury sustained resulted approximately from such breach.
    Motion to strike off compulsory non-suit. C. P. Lehigh Co., Sept. T., 1926, No. 51.

      Dallas Dillinger, Jr., for plaintiff and motion; Butz & Rupp, for defendant.
    Sept. 6, 1927.
   Iobst, J.,

This suit is brought for the recovery of damages arising out of a fire which destroyed the Lafayette Hotel, in the City of Allentown, on Jan. 23, 1926. The plaintiff occupied room No. 38, which was located opposite the elevator on the fourth floor of the building. He was not a transient guest at the hotel, but had occupied a room therein for about seven years, latterly for a period of three years. There were two hallways on the fourth floor, one running from the north end to the south end of the hotel; the other connecting with this hall, running east and west. There was also an open stairway and an elevator giving access from the main floor to the fourth floor. The entrance to room No. 38 was from the hallway running north and south. There was a fire-escape at the southern end of this hall and another fire-escape at the eastern end of the hall leading from west to east, access to this escape being had through a bath-room. An electric call bell was installed in the room. There were no fire-extinguishers on the fourth floor. At the south end of the hallway, at the window leading to that fire-escape, stood a small table about two to two and one-half feet square, upon which stood some flower-pots. The building was a frame structure, the Seventh Street side being five stories in height, while the rest of the building was of three and four stories. The plaintiff was familiar with the premises, and had knowledge of the location of the stairway, elevator and fire-escapes.

On the night before the fire, plaintiff retired to his room at about the hour of eleven o’clock. Sometime after one o’clock in the morning he was awakened by the smoke from the fire. He heard the upstairs maid cry “fire.” He saw a light in the hall, caused by the flames. He did not attempt to enter into the hall, but, on the contrary, closed the transom above the door and kept the door of his room locked. There were no flames coming into the room at that time. Partly dressed, he ran to the window facing Seventh Street and opened it. He saw the fire companies below trying to get a ladder to him. For some reason, the city fire apparatus failed to function properly. After considerable delay, a ladder reached the plaintiff, and thus his life was saved, but, in the meantime, he was severely and painfully burned about his body. For these injuries and the loss of his personal belongings this suit was brought.

At the close of plaintiff’s case, counsel for defendant moved to strike out some of the testimony, for the reason that it was at variance with the pleadings. This motion was allowed. Defendant then moved for a compulsory non-suit, and, after argument heard, the court granted the motion. The case now comes before the court upon plaintiff’s motion to strike off the compulsory non-suit.

In disposing of this matter, we will consider all of the evidence, including that which was stricken out upon motion.

The plaintiff bases his cause of action against the defendant, owner and operator of the hotel, in that he negligently and carelessly failed to provide a proper, safe and protected building for the entertainment of guests for hire, and that he failed to keep clear from obstruction access to exits from the building; that he failed to install proper signals at the point of access to the exits; that he failed to install an alarm system; that he failed to maintain the building in such a manner as to make it reasonably safe for the entertainment of guests. In the seventh and eighth paragraphs of plaintiff’s statement he alleges that he, the plaintiff, was unable to leave said premises, either by inside stairway, elevator or fire-escapes, by reason of his approach to either of said exits being prevented by fire and smoke. There was no testimony offered that the building was an unsafe structure, the plaintiff relying in the trial of his case upon the allegations that the fire-escapes were obstructed, the non-installation of fire-extinguishers, fire-alarms and proper signals at the point of access to the exits.

The legislature of this State in 1909 passed legislation for the safety of persons from panic and fire in hotel buildings: Act of May 3, 1909, P. L. 417. This act was amended by the Act of July 18, 1917, P. L. 1074, Act of June 7, 1919, P. L. 406, and the Act of April 20, 1921, P. L. 190. Regarding the matter now before us, these acts, read together, provide as follows: That any building in this Commonwealth, other than buildings situate in cities of the first and second class, having more than two stories, . . . now used or hereafter to be used, in whole or in part, as (a) ... hotel, . . . shall be provided with proper ways of egress or means of escape from fire, sufficient for the use of all persons accommodated, assembled, employed, lodged or residing therein, and such ways of egress and means of escape shall be kept free from obstruction, in good repair, properly lighted and ready for use at all times; and all rooms above the second story in said buildings shall be provided with more than one way of egress or escape from fire, which shall be placed as near as practical at opposite ends or sides of the building and leading to stairways on the inside or to stair-towers or fire-escapes on the outside of the building. The legislation further provides for a civil remedy in case of death or personal injury as a result of fire or panic in such building when there is a breach of the statute.

This latter provision regarding civil liability for failure of compliance with the act does not raise an absolute liability for all injuries on the happening of a fire. The failure to comply with the act was made an act of negligence for which a liability attached to the owner, but, as in other cases of the same class, a liability only to those injured in consequence of such negligence: Sewell v. Moore, 166 Pa. 570, 576. The trouble with plaintiff’s case is this, that he failed to make any effort to leave his room. Any number of fire-escapes would have availed him nothing, for he made no attempt to get to them. The obstruction of one of the ways of exit by the small table at the window leading to one of the fire-escapes did not hinder him, because he never was near it. He made no effort to get to the elevator or to the stairway. All that he did after he was awakened by the smoke, and saw the flames and heard the cries of fire, was to remain in his room, close the transom, keep his door locked and await a rescue by means of such apparatus as was available to the firemen. The question for our consideration is whether the negligence of the defendant -was the proximate cause of the injury complained of, and when is the determination of that question for the court or the jury. While it is undoubtedly true as a general proposition that the question of proximate cause is for the jury, yet it has been repeatedly held that Where there are no disputed facts, the court may determine it: West Mahanoy Township v. Watson, 112 Pa. 574; s. c., 116 Pa. 344; Bunting v. Hogsett, 139 Pa. 363; Gudfelder v. Railway Co., 207 Pa. 629. “In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act:” West Mahanoy Township v. Watson, 112 Pa. 574; Pittsburgh So. Ry. Co. v. Taylor, 104 Pa. 306, 315.

The hotel-keeper must provide a reasonably safe structure to secure the safety of the guests. He is not to be regarded as an insurer of.their safety. His liability for the condition and operation of his hotel is limited to the failure to exercise ordinary care, because his is an ordinary occupation, fraught with no extraordinary danger: Lyttle v. Denny, 222 Pa. 395. In that case the court says: “It may be assumed, then, that the duty imposed by law upon an innkeeper requires him to furnish safe premises to his guests and to provide necessary articles of furniture which may be used by them in the ordinary and reasonable way without danger.”

In the instant case, we must assume that the hotel was a reasonably safe structure, for there was no evidence to the contrary. The acts of assembly referred to do not compel the hotel-keeper to install fire-extinguishers or an electric fire-alarm system.

It is a well-established principle of the law that civil liability does not attach for breach of the statute alone, but it must affirmatively appear that the injury sustained resulted proximately from said breach.

In these cases negligence is never assumed but must be proven, and the mere fact of negligence or violation of the provisions of a statute is not enough unless it is further shown that such negligence or violation proximately caused the injury.

This latter doctrine is laid down by our Supreme Court in the case of Sewell v. Moore, 166 Pa. 570, 576, wherein the court says: “The failure to build a fire-escape was made an act of negligence for which a liability attached to the owner, but as in other cases of the same class a liability to only those injured in consequence of such negligence. There could be no better illustration of the wisdom and justice of this view than the present case. The undisputed testimony is that the fire-escape was safe, sufficient and effective when it was once reached. All the people on the fourth floor escaped by it uninjured. The difficulty was in the locking of the door that led to it on the third floor. The plaintiff got to this door in time, and had it been open as it should have been, he could have escaped-without injury as did the others who came to it, some of them after he did. The only proximate and effective cause of the injury was the locking of the door, and that, according to the testimony of Taylor, the boss weaver, was done by him at the order of his employers, the tenants. It was not the act of the defendant or of any one over whom he had control or for whose actions he was responsible. The statute does not make him liable except for the consequences of his own act, and there was no evidence on which the jury should have been permitted to find that plaintiff’s injuries were the result of anything defendant did or omitted.”

In the case of Acton v. Reed, 93 N. Y. Supp. 911, the hotel proprietor failed to provide the structure with stand-pipes, as required by the building code of the City of New York. The deceased had .been a guest at the hotel, occupying a room on the sixth floor. His death was due to suffocation by smoke while endeavoring to escape from the burning building. The principal acts of negligence claimed to have been established at the trial and by reason of which the recovery was sought to be sustained were that a door upon the sixth floor leading to an interior stairway was locked at the time of the fire; that there was no diagram in the room occupied by the deceased, indicating how to get out of the building, as provided by the charter of Greater New York, and that there were no stand-pipes in the building, as required by statute and the city building code. The Supreme Court said: “The building did not have the stand-pipes required. The defendants, therefore, had failed to comply with the statute and were prima facie negligent if the omission to supply them contributed in any way to the decedent’s death. The statute, by reason of the height of the building, imposed a duty on the defendants to erect the standpipes, and their omission to do so gave a cause of action in favor of any one entitled to its observance and injured by the breach. The trouble, however, with the plaintiff’s case in this respect is that the proof is overwhelming that if there had been stand-pipes they could not and would not have been used, and, therefore, the omission to have them in no way contributed to the decedent’s death. . . . The fact that after he came out of his room he proceeded by way of the stairs to the fifth floor indicates that he knew how to get out of the building, so that the absence of a diagram in his room in no way could be said to have been the cause of his death. . . . Much testimony was offered on the part of the defendants to the effect that the door [which led from the sixth floor to the floors below] was not locked. . . .” The court said: “It was of no importance, however, whether it was locked or not, inasmuch as testimony had been offered, which was uncontradicted, to the effect that the deceased came out of his room, locked the door and proceeded by another stairway to the floor below; that he never tried to descend by the interior stairway, and, therefore, even if it be conceded that it was locked, it in no way impeded the deceased’s exit from the building.”

“Failure of an innkeeper to put fire-escapes on the building, as? required by an ordinance, does not render him liable for death of a guest who perished in a fire therein, it not being shown that he was at a window or in any position where a fire-escape would have afforded him any benefit; there being evidence that he had locked himself in his room and was heard beating on his door, trying to make his escape, and one of the windows of his room having overlooked another building onto the roof of which' he could have safely leaped and thereby have escaped, as others similarly situated did:” Syl., Weeks v. McNulty et al., 48 S. W. Repr. 809. Similar cases are Radley et al. v. Knepfly, 135 S. W. Repr. 111; Louisville Trust Co. v. Morgan, 203 S. W. Repr. 555; Pauley v. Steam Gauge and Lantern Co., 29 N. E. Repr. 999 (New York Court of Appeals).

In the instant case, plaintiff locked himself in his room. He made no attempt to use the means of escape at hand. If there had been fire-extinguishers in the hall they might have been of some use to him, but none being there did not affect his situation, because, locked in his room, he could not have used any of them. Whether the halls were lighted or not begs the question, for he never came out of the room. The table in the hall at the window did not impede his progress to the fire-escape, because he never tried to get to it. We regret the unfortunate injury and the loss of the lives of others in the building at the time of this catastrophe, but we have failed to discover any causal connection between the defendant’s negligence and plaintiff’s complaint.

We are, therefore, of the opinion that plaintiff’s motion to strike off the compulsory non-suit be dismissed.

Now, Sept. 6, 1927, after due consideration of the record in this cause, plaintiff’s motion to strike off the compulsory non-suit is refused.

From Edwin L. Kohler, Allentown, Pa.