author: Sayers, P. J.,

text:
    Cramer v. Equitable Gas Company.

      Waychoff & Waychoff, for plaintiff.

      Langfitt & Langfitt and Scott & Hood, for defendant.
    Oct. 21, 1929.
   Sayers, P. J.,

The plaintiff, Downey Cramer, suffered personal injuries and the loss of his automobile truck in an accident which a jury found to be due to the negligence of a servant of the defendant, the Equitable Gas Company, in operating an automobile belonging to defendant.

On Aug. 12, 1925, the plaintiff brought an action for personal injuries against the defendant company, claiming in his statement that the accident occurred on April 16, 1925. The case was tried and the jury rendered a verdict in favor of the plaintiff and against the defendant on June 15, 1927, in the sum of $858.34. A motion for judgment n. o. v. was filed and, subsequently, without arguing the motion, the defendant company, on Dec. 19, 1928, filed its petition in the said case, alleging that the Providence Washington Insurance Company, hereinafter designated as the insurance company, with offices at Washington, Pennsylvania, was claiming under a subrogation assignment from Downey Cramer all of the money to be recovered by him in the above action; that a part of the money was claimed by R. E. Kent, of Waynesburg, Pennsylvania, by virtue of an assignment from Downey Cramer to him; and that Challen W. Waychoff, attorney for Downey Cramer, was also claiming part of the money by virtue of an assignment from the plaintiff.

The defendant set forth in its petition that it was ready to pay the amount of the verdict, interest and costs, but that by reason of the several claims to the proceeds of the verdict and by reason of the inability of the various claimants to agree among themselves as to the proper distribution of the money, it could not safely pay out the money in its hands.

Upon this petition a rule was granted upon the insurance company, R. E. Kent, Challen W. Waychoff and Downey Cramer to show cause why the amount of said verdict, interest and costs should not be paid into court and the judgment satisfied. To this rule answers were filed by the insurance company; by Challen W. Waychoff and Roy J. Waychoff, attorneys for the plaintiff, claiming by virtue of an assignment from him of a portion of the verdict; by R. E. Kent, who claims a part of the verdict by reason of an assignment to him from Downey Cramer, the plaintiff; and by Downey Cramer, the plaintiff. The whole matter was submitted to the court on the petition and the answers filed and the brief submitted by the insurance company. No briefs were filed by any other of the parties interested.

The facts in the case must be gleaned by the court from the admissions or statements of fact in the petitions and answers filed.

1. On May 13, 1925, the Providence Washington Insurance Company issued an automobile insurance policy upon a 1924 31-ton Federal truck to Downey Cramer and the S. M. Byers Motor Car Company, as their interests may appear, insuring said truck against direct loss or damage which it claims it is entitled to under the terms of the policy, a copy of which is marked Exhibit “A” and attached to its answer.

2. The said truck was totally destroyed in an accident caused by the negligence of a servant of the Equitable Gas Company, which occurred on May 16, 1926. The testimony on the trial of the case set forth that the accident occurred on April 16, 1925, and that date was not disputed at the trial, but the records of the hospital at Waynesburg show conclusively that the accident happened on May 16, 1925, as set forth in Exhibits “B” and “C,” attached to the petition of the insurance company filed in this case.

3. The plaintiff’s truck was totally destroyed in the accident and his loss was adjusted by the agent of the insurance company and assessed at $2600, the amount thereof being paid to plaintiff and the S. M. Byers Motor Car Company on June 9, 1925.

4. The insurance policy provided as follows: “Subrogation — This company may require from the assured an assignment of all right of recovery against any party for loss or damage to the extent that payment thereof is made by this company.”

5. Pursuant to the provisions of the last recited clause in said policy of insurance, the insurance company, on June 9, 1925, having paid the insurance, took from the plaintiff and the S. M. Byers Motor Car Company a subrogation receipt and an assignment, whereby the plaintiff subrogated all of his right of recovery for damage due to the accident of May 16, 1925, to the said insurance company.

6. The insurance company, on April 8, 1926, notified the General Accident Fire and Life Assurance Corporation, Limited, of Perth, Scotland, insurance carrier of the Equitable Gas Company, and, later, on April 11, 1925, notified the Equitable Gas Company, defendant, that it had paid the claim of the plaintiff and S. M. Byers Motor Car Company to the extent of $2600 and taken from them a subrogation receipt and assignment under which they subrogated all their right of recovery due to the accident of May 16, 1925, to the said insurance company, and that it would be entitled to receive the full amount of the verdict in the case up to the sum of $2600.

7. The plaintiff, in bringing this suit, disregarded the rights of the insurance company and brought his action for the recovery of damages only for personal injury, instead of having brought his action for the recovery of damages to his person and property, and thereby the insurance company was deprived of its right of subrogation in case damages were recovered for the loss of the truck.

8. R. E. Kent claims that on or about April 23, 1925, Downey Cramer, the plaintiff, assigned to him one-half of the gross amount that the plaintiff might recover as damages for personal injuries. The alleged assignment from Cramer to Kent is lost, and while the petition sets forth that the assignment was made for a good and sufficient consideration, it is apparent that it could not have been made on April 23, 1925, which was several weeks before the accident occurred. No notice of his assignment was given by R. E. Kent either to the Equitable Gas Company, defendant, or its insurance carrier, the General Accident Fire and Life Assurance Company, Limited, of Perth, Scotland.

9. On July 1, 1925, the plaintiff, being in indigent circumstances and unable to compensate attorneys for their services, entered into an agreement with Challen W. Waychoff and Roy J. Waychoff, attorneys-at-law, whereby they were to receive for their services, contingent upon recovery, one-fourth of all moneys recovered in the action which they were to bring against the Equitable Gas Company. This assignment or contingent fee agreement is also lost and no notice of it was given to the Equitable Gas Company, the defendant, or to its insurance carrier, the General Accident Fire and Life Assurance Company, Limited, of Perth, Scotland.

10. Downey Cramer, the plaintiff, in his answer, agrees that Challen W. Waychoff and Roy J. Waychoff were entitled to recover one-fourth of the amount of the verdict to be paid by the defendant, and that one-half of the verdict should be paid by the defendant to R. E. Kent by virtue of the assignment which he holds from Cramer, and that he, the plaintiff, is entitled to the remaining one-fourth of the amount of said verdict.

Discussion.

The respondent, the Providence Washington Insurance Company, claims that it was the duty of Downey Cramer, the plaintiff, in bringing his action in this case, to sue not only for the recovery of damages for personal injuries which he suffered, but also to sue for the damages he had suffered by reason of the loss of his truck, the right to which he had transferred by subrogation assignment to the said insurance company.

It is further claimed that Downey Cramer could only bring one action for the recovery of any damages due to said accident, and he should have included in his statement of claim a count for property damage, but having failed to do so, the plaintiff put it out of the power of the insurance company to assert its rights against the defendant by virtue of the subrogation assignment which it held from the plaintiff and the S. M. Byers Motor Car Company.

The insurance company claims on the authority of Manley v. Montgomery Bus Co., Inc., et al., 82 Pa. Superior Ct. 530. Manley brought his action to recover damages for injury to his person and to his automobile, but after the bringing of his action he entered into an agreement with the defendant company, whereby he discontinued and abandoned his claim for damages as it related to his automobile and went to trial only for damages for personal injury and recovered a verdict.

There are several matters in this case which distinguish it from the Manley case. In the first place, the policy under which the insurance company in this case claims the right to be subrogated to the rights of the plaintiff does not appear to be a policy protecting the assured against damages suffered by collision, but is a policy insuring the assured against (a) fire and lightning, (b) injury to the truck while being transported in another conveyance by land or water, and (o) against theft, robbery or pilferage. The insurance company adjusted the loss caused by the collision, and paid to Downey Cramer and S. M. Byers Motor Car Company $2600 in full settlement for all claims for loss and damage by collision under the above policy, No. 13547. The policy does not insure against collision damage to the truck in use on the road, caused by the negligence of persons other than the owners.

The subrogation agreement in the policy of insurance provides for an assignment from the assured “of all right of recovery for loss or damage to the extent that payment therefor is made by this company.” The subrogation receipt itself reads as follows:

“To the Providence Washington Insurance Company,

“Having received full settlement of claim under Policy 13547 issued by The Providence Washington Insurance Company by its Washington, Pa., agent of accident of May 16th, in which car insured was destroyed by collision we hereby subrogate all right for recovery to said insurance company.

“June 9, 1925. “Downey Cramer.

“S. M. Byers, Pres.

“Witness: “S. M. Byers Motor Car Co.

“Edw. R. Patterson,

“Justice of the Peace.

“My commission expires First Monday Jan. 1926.”

Both the assured and the insurance company evidently believed that the assured, including the plaintiff, were entitled, after paying the amount of their adjusted claim of $2600, to be subrogated to the plaintiff’s right to recover all damages growing out of the accident. Consequently, it was the duty of the plaintiff in bringing the action in this case to sue not only for his personal injuries due to the negligence of the defendant, but also for the injury or damage done to his automobile truck.

When an action has been brought for property damage, due to the negligent act of another, a second suit cannot be brought for personal injuries to plaintiff sustained by the same negligent act of the defendant. If the cause of action is the wrongful act, then all of the damages sustained thereby, whether to person or property, are properly brought in one suit: Fields v. Phila. Rapid Transit Co., 273 Pa. 282; Manley v. Montgomery Bus Co., supra.

If it were not for the written subrogation assignments the insurance company would of necessity be mere volunteers in paying plaintiff’s claim, because not bound so to do by the terms of their insurance policy. Ordinarily, a mere volunteer is not entitled to be subrogated to the rights of the original creditor who is being indemnified or protected: In re Commonwealth Trust Co., Trustee, 247 Pa. 508; Webster and Goldsmith’s Appeal, 86 Pa. 409; Thompson v. Griggs, 31 Pa. Superior Ct. 608.

Here we have the case of an insured plaintiff making claim for a loss he believed due him which was paid by the insurance company under the belief that they were bound by their policy contract to pay, and actually taking from the assured, plaintiff in this case, a subrogation receipt and assignment of his claim. The insurance company here is not a mere volunteer.

It is held in Leggate v. Korn, 74 Pa. Superior Ct. 383, “that the doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or property of his own.” It may readily be seen that the insurance company, the subrogation creditor in this case, is not a mere volunteer because it believed itself to be bound by the insurance policy issued to Cramer. Moreover, it has an assignment or agreement for subrogation, and, in the opinion of this court, is in the same situation as though it had paid the insurance money to Cramer under a policy which actually bound it to make such payment.

In the case of Lackawanna T. & S. Deposit Co. v. Gomeringer, 236 Pa. 179, 188, in discussing subrogation and payment by volunteer, the Supreme Court outlines the controlling principles as follows:

“The doctrine of subrogation rests fundamentally on the equitable principle that when a party is required to pay a debt for which another is also liable and which that other in good conscience ought to pay, such payment should operate to invest the party paying with the creditor’s rights and remedies against the other debtor. And this is the mode which equity adopts to compel the ultimate payment by him who in good conscience ought to pay the debt, to the relief of him to whom none but the creditor could ask to pay. A simple statement of the principle is all that is here required; any elaboration of it would be simply a repetition of what has been said so frequently in cases where the doctrine has been discussed and applied. This much is involved in the very definition of the principle, viz., that it can be invoked only for the protection of one who has paid the debt of another because he had made himself legally liable in connection therewith. When one under no liability himself in connection with the debt voluntarily pays it, no equity can arise from the transaction calling for protection. In such case, payment extinguishes the debt, except as the creditor receives the money upon the understanding that the debt is to be assigned to the party paying. In such case, the transaction being one of purchase and not payment, the debt survives. It is manifest, however, that the transaction can take this shape only as the creditor assents. All that the debtor can demand of the creditor is a discharge of his liability upon payment. He is in no position to require a transfer of it to another. A volunteer who steps in and pays the debt has no higher rights. So it is evident that the right to subrogation can result only when the party paying was not a primary debtor, but yet a party legally liable for the debt at the suit of the creditor.”

It will be observed in this case, as suggested in the last recited case, that the assured, Cramer, received the money not only upon an understanding that his damage claim was to be assigned pro tanto to the insurance company, but the understanding was carried out and the claim assigned by the subrogation receipt and assignment hereinbefore set forth. Cramer made this assignment, and, as has already been said, it was his duty to include the claim for damages to the automobile truck in his suit against the Equitable Gas Company for the use of the insurance company, to which he had assigned so much of his claim. Having failed to do this, he is in the same situation as the plaintiff in the case of Manley v. Montgomery Bus Company, supra, and since he has voluntarily waived his claim for damages to the automobile truck covered by the insurance, the insurer is entitled to be reimbursed from the amount recovered by him for personal injuries.

How, then, is this situation affected by the claim of Challen W. Waychoff and Roy J. Waychoff, attorneys for plaintiff, whose efforts in his behalf resulted in a verdict, the right to the proceeds of which are here in dispute? The agreement between the plaintiff in this case and his attorneys that they should have one-fourth of the amount of the verdict in this action operates as an equitable assignment of one-fourth of the amount of the verdict in this case and would be good as against the plaintiff, and we hold in this case that such an assignment is good as against the legal right of the subrogated assignee of the plaintiff; in this case the insurance company. It is held in Patten v. Wilson, 34 Pa. 299, that a claim for unliquidated damages in an action sounding in tort is not capable of an assignment before a verdict so far as respects the rights of third persons; but as between attorney and client, an agreement to assign a whole or part of a future verdict is binding; and being founded on sufficient consideration, should be enforced.

In the instant case, the real plaintiff knew that he should proceed in this action to recover damages for his truck for the use of the insurance company. His attorneys also should know that it was his duty to proceed for the damages caused by the loss of the plaintiff's automobile truck. Both of them should have known that the insurance company was entitled to recoup itself for the damages it had paid to the plaintiff due to the negligence of the defendant.

“As a general rule, an attorney has a lien for his services only upon what he has in his possession: McKelvy’s and Sterrett’s Appeals, 108 Pa. 615:” Aber’s Petition, 18 Pa. Superior Ct. 110. It has been held in a number of cases that the claim of an attaching creditor is not superior to that of an attorney claiming by assignment (Smith et al. v. Keener, 270 Pa. 578, 583, and Patten v. Wilson, supra), because the attaching creditor stands in the shoes of the debtor and his equities rise no higher than those of the debtor. We are of the opinion that the insurance company, being subrogated to the rights of Cramer, the plaintiff, is in the same situation as the plaintiff and does stand in his shoes to the extent that the fund it claims is subject to an equitable lien for attorney’s fees. In so holding, we are not ignoring the general rules as to the lien of attorney’s fees laid down in Dubois’s Appeal, 38 Pa. 231; Patrick v. Smith, 2 Pa. Superior Ct. 113, and other cases holding to the same general principles.

The claim of R. E. Kent to a part of the verdict is that of a mere volunteer without lien or an equity as against the insurance company or the attorneys for plaintiff, and need not be further considered. So, also, is the claim of the plaintiff. He failed to protect his subrogation assignee by suit as he was legally bound to do, and, as we have already found, has forfeited to it his share of the verdict.

The use or subrogation plaintiff, in equity and good conscience, should pay reasonable counsel fees in this case, and one-fourth of the verdict recovered by plaintiff’s attorneys is reasonable and should be allowed as counsel fees to Challen W. and Roy J. Waychoff.

Conclusions of law.

1. It was the duty of Downey Cramer, the plaintiff, to sue not only for himself, but for the insurance company, to which he had transferred his right to recover damages for the loss of his truck by his subrogation assignment.

2. The plaintiff, Downey Cramer, could only bring one action for the recovery of any damages due to the accident, and he should have included in his claim not only his personal injuries, but a count for property damage, and having failed to do so, he put it out of the power of the insurance company to assert its rights against the defendant by virtue of the subrogation assignment which it held, and, consequently, the insurance company is entitled to receive the amount of the verdict recovered by him in this case, subject to the right of Challen W. and Roy J. Wayehoff to deduct therefrom attorney’s fees Which, by reason of an assignment to them, they were entitled to receive from the amount of the verdict.

3. Challen W. and Roy J. Wayehoff are entitled to receive, by virtue of a contingent fee agreement and an assignment to them of a part of the verdict, one-fourth of the amount of the verdict recovered in this case.

4. R. E. Kent, alleged assignee of the plaintiff, Downey Cramer, claiming by virtue of an assignment to him of one-half of the amount of the verdict recovered for personal injuries, is not entitled to any part of this verdict, his claim being postponed to the claim of Challen W. and Roy J. Wayehoff, attorneys-at-law, and to the insurance company, they having a prior right to take the funds offered to be paid into court by reason of their several assignments as hereinbefore set forth.

5. Downey Cramer, the plaintiff, is not entitled to receive any part of the verdict because of his failure to protect the insurance company by bringing suit for damages due to the loss of the truck as he had agreed to do by his subrogation assignment to the insurance company, which paid him $2600 for the loss of his truck.

Order.

And now, Oct. 21, 1929, this matter came on to be heard, and, after due consideration, it is ordered and directed that the defendant, the Equitable Gas Company, shall pay to Challen W. and Roy J. Wayehoff the sum of $214.58, together with lawful interest from June 15, 1927, the date of the verdict, being the one-fourth of the amount of the verdict in this case; and shall pay to the Providence Washington Insurance Company the sum of $643.76, with lawful interest from June 15,1927; and upon the payment by it of said sums and interest and the costs of this case, the said verdict shall be marked satisfied of record. From S. M. Williamson, Waynesburg, Pa.


source: Caselaw Access Project

author: Newcomb, P. J.,

license: Public Domain

text:
    Berg v. Langan et al.

      Welles, Mumford & Stark, for plaintiff.

      Kelly, Balentine, Fitzgerald & Kelly, for defendants.
    Feb. 14, 1930.
   Newcomb, P. J.,

This is an action of replevin at the suit of the owner to test the question whether the goods and chattels described in the writ were subject to a lien for the rent of demised premises on which they had been distrained by the landlord.

The case being regularly on the list and called for trial, the facts were put upon record and the cause submitted by agreement of parties for trial without a jury.

For the sum of $90 rent owing by her tenant, one Costello, then in arrear, the defendant, Mrs. Langan, on May 13, 1929, distrained the goods in question. The legal title was in this plaintiff subject to the rights of Costello as a buyer under the terms of a conditional sale. This contract was in writing, dated April 26th, and duly recorded the same day as provided by the statute hereinafter cited, to the terms .of which it fully conformed. Other than such notice, if any, as might be imputed to her by reason of the record, there was nothing to give notice to the landlord that the goods were not the property of the tenant who had absconded.

The fact is noted that no part of this merchandise had ever been affixed to the realty.

On May 20th, pending the seizure, the goods were delivered to plaintiff by the sheriff on this writ. Their value is $307.

The single question is whether they were immune from the landlord’s lien for the rent of the premises.

Prima, facie, the answer must be in the negative. The owner who asserts the contrary has the burden of proof: Esterly Machine Co. v. Spencer, 147 Pa. 466; Souders v. Willig, 97 Pa. Superior Ct. 197.

Unless his argument has been misapprehended, counsel takes the position that the Uniform Conditional Sales Act serves to repeal the Act of March 21, 1772, 1 Sm. Laws, 370, and thereby creates an exception to the general rule of liability in case of chattels covered by this special form of contract duly recorded. See Act of May 12, 1925, P. L. 603, and the amendment of May 12, 1927, P. L. 979.

The supposition is believed to be erroneous. The landlord’s lien is of common law origin. It is not a creature of statute. It was only the right to bring the goods to public sale which was conferred by our provincial act, as had been done in England by Act of Parliament.

But, what is more pertinent, the express purpose of the Sales Act is to protect the seller against the claims of those who could prejudice his right of property only by asserting title in the buyer. That would not include the landlord who is concerned with title only in case of such specific kinds of chattels as the legislature has been at pains to exempt unequivocally. In general, it is enough for him that the goods are present and in the tenant’s possession: Manufacturing Co. v. Scheeren et al., 75 Pitts. L. J. 842. The court there pointedly called attention to the several statutes exempting various kinds of property. In view of that history, it was well said to be significant that the Sales Act contains no express reference to the right of distress.

The exemption contended for would be in derogation of a common law right. That is a proper subject of legislation, but it must be distinctly so expressed. It is not for the court to give this act that effect by mere resort to obscure or doubtful implication or uncertain intendment.

The issue is believed to be with defendant, and judgment for the goods and chattels described in the writ is accordingly entered in her favor, to be released, however, on the payment of $90, with the accrued costs, within ten days from the date of filing hereof.

From William A. Wilcox, Scranton, Fa.


author: Fleming, P. J.,

text:
    Commonwealth v. Kimmel et al.

      John G. Love, District Attorney, for Commonwealth.

      N. B. Spangler and Ivan Walker, for defendants.
    Jan. 15, 1930.
   Fleming, P. J.,

The matters before the court are motions by the defendants in arrest of judgment and for a new trial, the defendants having been found guilty of the larceny of an antlerless deer, alleged to have been the property of John E. Bubb.

At the trial, counsel for defendants moved to quash the indictment, assigning numerous reasons therefor, which we shall discuss in this opinion. For the purposes of the motion to quásh, the Commonwealth admitted that the subject of the alleged larceny, as set forth in the indictment, to wit, one female (doe) deer, belonged to the class of ferse natures or wild animals and also that such indictment was drawn under section 103 of the Act of March 31, 1860, P. L. 382, 408.

The facts, briefly stated, are that the defendants, all of whom are residents of Schuylkill County, were in this county during the so-called “doe deer season of 1928.” All defendants had procured from the county treasurer of this county alleged licenses to kill one antlerless deer not less than fifty pounds in weight between Dec. 1, 1928, and Dec. 15,1928. John E. Bubb, who is a resident of this county, was also the holder of a similar alleged license. On Dec. 3, 1928, Mr. Bubb, hunting alone, had killed a doe deer and had brought it to an empty cabin for safe keeping until he was ready to return home. Later in the day, upon returning for his deer, he found it missing, and after investigation, caused the arrest of the defendants, who it appeared had returned to their home in Schuylkill County on the same day, taking with them several deer, which they contended, at the trial, had been killed by them.

In considering the motion in arrest of judgment, we are limited to a review of the indictment and record of the trial, no sentence having at this time been imposed: Com. v. Gurley, 45 Pa. 392. Evidence given during the trial does not become part of the record, and in passing upon the motion the court cannot consider it: Com. v. Gurley, 45 Pa. 392; Com. v. Newcomer, 49 Pa. 478; Com. v. Kammerdiner, 165 Pa. 222; Com. v. Bateman, 92 Pa. Superior Ct. 53 (66). It is proper, however, that we should consider the defendants’ exceptions to the indictment: Delaware Division Canal Co. et al. v. Com., 60 Pa. 367.

The first three exceptions to the indictment are not sound. Defendants except (1) because the act of assembly under which the indictment is drawn in the above stated case does not make the stealing of a wild deer the subject of larceny; (2) because there is no statute in Pennsylvania making a wild deer the subject of larceny; and (3) because neither under the common law, nor under any statute in Pennsylvania, is a wild deer made the subject of larceny. We might differentiate between the words “wild deer” and the “carcass of a wild deer” which has been killed and reduced to possession by one hunting within the Commonwealth under a valid license, but such is not necessary to show the error in defendants’ first three exceptions to the indictment. As long ago as 1799 it was held that the carcass of a wild deer was the subject of larceny. In Pennsylvania v. Henry Becomb, John Reading, James Eckles and Samuel Dickson, Addison’s Reports, 386, we find the defendants to have stolen deerskins, bearskins, deer tallow, bear and deer meat, etc., from the Indians, and the court said in part:

“Whether the Indians were trespassers or not, the authorities cited prove that they were not thieves. Their labor in killing the deer and bears, ferx nature, gave the Indians a property in the skins, meat, and tallow of those animals. It would be strange, if the taking could not be felony because it was in the day time, and the offenders impudently avowed it among themselves. The property was as much in the possession of these Indians, as articles of this nature usually are. And if you think the prisoners took and carried them away with an intent of converting them to their own use, without the knowledge of the owners, there is no occasion for you finding a special verdict; you may find the prisoners guilty.”

Counsel for the defendants point to Act No. 561 of the Legislature of 1929, approved May 14, 1929 (P. L. 1720), wherein section 1117 is added to the Game Code of 1923, and whereby any animal or bird, or the carcass or body or parts thereof of any animal or bird, killed or caught by any persons under the provisions of the Code, is declared to be personal property and the subject of larceny, as proof of the fact that the Legislature did not intend such to be the rule prior to such enactment. In this particular instance we have first-hand knowledge of the legislative intent moving the enactment of the Act of 1929, supra,. The defendants having raised the above objections at the trial in February, 1929, we determined it to be expedient, living in a county wherein, were such not to be the firm and established rule, great confusion and disorder might prevail during the hunting season, entailing loss of property and possibly loss of life, and we personally interested members of the Legislature to reaffirm by statutory enactment, that which had long since, both by decision and necessity, been the rule in such cases.

In defendants’ objections 4 and 5, however, we find substantial merit. We recognize the able and complete opinion of Judge Shull in Cope v. Merwine, County Treasurer, et al., 11 D. & C. 767, and fully concur therein. We quote therefrom as follows:

“Section 511 [referring to the Game Code] was intended to apply to deer without visible antlers, which is the subject of this controversy, and is the only section of this act it is necessary for us to consider. Section 511 does not confer upon this commission autocratic, arbitrary power and authority to declare an open season on deer without visible antlers. Under that section, they have power to do so only on information, not rumors or gossip, but information that would satisfy an ordinarily reasonable person of the necessity for such action through the existence of some particular reason for reducing their number; and, further, even when such reason exists, then must this Game Commission comply with the requirements of the statute in authorizing the killing of such deer. This statute is, of course, in derogation of the common law and must be strictly complied with if it is to place in operation the things contemplated in it. Section 511 provides that deer without visible antlers may be killed during ‘a special season of such length as the board may deem advisable either prior to or following the regular open season for male deer.’ The regular open season for killing male deer is a well recognized period. The meaning of that, to the mind of the court, is so clear that it is hardly subject to argument. It means, and can mean only, that period of the year during which, by the existing statutes of this Commonwealth, the season of killing of male deer is open. This would not, in the opinion of this court, be affected one iota by the fact that the Game Commission may, under certain conditions, temporarily close such season. It would still remain the regular open season in the statute. This particular period of the year was withheld by the Legislature from the authority of the Game Commission, but in this instance the period designated by the Game Commission for a special season on deer without visible antlers is the very period covered by the statute as the regular open season, and this, under the law, the Board of Game Commissioners may not do. As we have said, when the Legislature delegates authority to a commission or board, the right to exercise that authority depends upon a strict compliance with the conditions under which such authority is delegated, and the presumption relative to delegated authority is always against any grant of power other than that which is clearly expressed and shown by the act of assembly which makes such delegation of power and authority; and as we have said, such statutes must be strictly complied with and must be strictly construed.

“Has the Game Commission complied with the conditions which would legalize under the licenses which are about to be issued by the County Treasurer of the County of Monroe the killing of deer without visible antlers? They have chosen a season which the Legislature has specifically withheld from them, and, again, the statute under which they are acting provides that one desiring a special license ‘shall also apply to and obtain from the board at Harrisburg a special deer license.’ Prom the facts in this bill, we must conclude that no such application was made by any one of the persons to whom the Board of Game Commissioners are now proposing to have the County Treasurer of Monroe County issue what purport to be special licenses.

“Under the act of assembly, the county treasurer has absolutely no authority to issue special licenses. He is not by the act of assembly made an arm of the Game Commission in this instance as he is made an arm relative to the issuing of regular hunting licenses. It is contended on behalf of the Game Commission that the county treasurer is acting as its agent, but the county treasurer, like the Game Commission itself, is a mere statutory creature and has only such authority as is specifically designated to him by act of assembly, and we are not conversant with any act of assembly which would permit a county treasurer as an official to act as agent for any one or anything; and as the licenses the Game Commission proposes to issue are licenses which on their face show they are issued by the county treasurer, they are not such licenses as could be issued under the authority of the act of legislature governing the Game Commission. . . .”

With the sound reasoning of the learned Judge of Monroe County we most fully agree. The season during which the antlerless deer was killed, in the instant case, was the season specifically withheld from the discretion of the Game Commission for the permitting of killing such deer. The licenses issued to the defendants and to Mr. Bubb were wholly without authority and invalid. Of this fact we have taken judicial notice: 16 Corpus Juris, 525. The whole happening is deeply tainted with illegality and should not become the basis of any conviction. While, beyond question, Mr. Bubb was acting in absolute good faith in killing the deer which was taken from him, his killing thereof, under the invalid license, and in the period specifically excepted by the Legislature in bestowing discretion upon the Game Commission, was an illegal killing. By the very terms of the Game Code itself it is unlawful even to have possession of a deer during the closed season. It would be beyond the pale of any sound reasoning to hold that a property right, sufficient to support a conviction of larceny, could be acquired under an invalid license authorizing the killing of an antlerless deer, within a period specifically excepted by statute.

And now, Jan. 15, 1930, the motion of the defendants in arrest of judgment is allowed for reasons noted above, and the defendants, Harry Kimmel, William Minnick and Harold Wagner are discharged. Costs to be paid by the County of Centre. From S. D. Gettig, Bellefonte, Pa.


author: MacDade, J.,

text:
    In re Morris.

      A. 3. Williams, for petitioner.
    March 10, 1930.
   MacDade, J.,

This is a petition by the Board of Examiners in and for the County of Delaware for the suspension for two years from the practice of law in our courts of one Prank S. Morris, a member of the Delaware County Bar.

Before presentation of the petition and the granting of the rule thereon to show cause, the board of examiners held a number of meetings, at which respondent failed to appear and make answer to the charges preferred against him, although he was duly supplied with copies of the charges preferred and notified in writing of the time and place of the meetings held to hear the same.

The charges or complaints made to the said board of examiners acting as the Board of Censors for Delaware County, consisted of allegations that, in various divorce proceedings, he was guilty of unprofessional conduct in undertaking to obtain divorces, and particularly for Hubert Morris and Minnie Lawton, by accepting money from them and failing to render the services promised or to return the money to the said complainants. The complainants filed affidavits with the said board.

On Nov. 2, 1929, copies of the said affidavits were mailed to the said Frank S. Morris by the secretary of the said board, calling upon him to file answers on or before Nov. 16, 1929, when a hearing would be fixed, and in default of answers the matter would be proceeded with ex parte.

No answers to the said affidavits were filed by the said Frank S. Morris, and, on Dec. 30, 1929, at 2 P. M., a special meeting of the board was held to consider said complaints and after a full discussion the board of examiners determined that disciplinary action was necessary; that the respondent had accepted money from the said complainants promising to perform legal services therefor and had failed to perform such services, and also failed and refused to return the money to them, and that he had been guilty of unprofessional conduct. The board recommended to the court that he be suspended from practice before the said court for a period of two years.

The order which we must inevitably make hereinafter is based upon the testimony and the respondent’s failure to answer the serious charges preferred against him and to appear before the said board of examiners acting as a board of censors after due and timely notice.

It would serve no practical or useful purpose to elaborate further the details of the respondent’s misconduct. We have searched the evidence diligently, but without avail, to discover some mitigating circumstance to justify withholding a remedy which is always reluctantly applied. Such practices are destructive of that relation of absolute trust and confidence which should exist between the bar and the public, without which the former cannot render its full measure of public service. This respondent has more than once heretofore been reprimanded and warned. He has betrayed a client’s trust. A shamed profession can redeem and preserve its high repute and rehabilitate itself in the public confidence only by sternly expelling from its ranks one who has so grievously dishonored its traditions.

Chief Justice Sharswood, in a volume of lectures on professional ethics, delivered before the Law School of the University of Pennsylvania and published in 1854, thus solemnly cautions the young lawyer respecting his duties in the handling of client’s moneys: “Most emphatically should it be said, let nothing tempt you, not even the knowledge and consent of the client, to keep the money which may come to your hands professionally one single instant longer than is absolutely necessary. The consequence of any difficulties arising upon this head will be fatal to your professional character and prospects.”

The literary charm and edifying instruction of this work merit the careful and constant study of the bar, particularly of its younger and more inexperienced members. It is spiritually strengthening, and should be a “lamp unto the feet and a light unto the path” of the advocate seeking safe passage through the perplexing questions of professional prosperity.

It certainly is not necessary, nor would it serve any useful purpose, to write a disquisition on the standards and traditions of the law as a profession, nor to reiterate the platitude that those who minister at her altar must be above reproach. The derelictions of the respondent in the present case were not violations of any abstruse or involved rules of ethics as to which opinions might differ, but were in disregard of the elementary principles of fair dealing.

The important and honorable office which the censors render to the profession and to the community compels us to stamp with our condemnation the failure of the respondent to appear before them to answer the charges of falsehood and deception in dealing with his clients, the affiants herein. Indeed, such methods in themselves justify the application of the ultimate disciplinary measure of disbarment.

Under such circumstances, the court is reluctantly obliged to enter the following

Order.

And now, March 10, 1930, the rule of the board of censors be and is made absolute and the prothonotary is directed to strike from the roll of attorneys of the Court of Common Pleas of Delaware County the name of Frank S. Morris, the respondent, and to give notice of this action to the Orphans’ Court of said Delaware County and to the Supreme Court and Superior Court of Pennsylvania. From William R. Toal, Media, Pa.


text:
    Commonwealth v. Centre Oil and Gas Company.

      John G. Love, District Attorney, for Commonwealth.

      Ivan Walker and N. B. Spangler, for defendant.
    Jan. 27, 1930.
   Fleming, P. J.,

This matter arises from an alleged violation of section 1016 of the Motor Vehicle Code, approved May 1, 1929, P. L. 905, 981, which provides as follows:

“Section 1016. Vehicles Must Stop At Certain Through Highways — It shall be unlawful for the driver or operator of any vehicle, street car or trackless trolley omnibus, before entering a through highway, to fail to come to a full stop, within a reasonable distance before entering the intersection on such through highway, when “Thru Traffic Stop” sign has been erected in accordance with the provisions of section one thousand one hundred and twelve of this act.”

Counsel for the defendant has moved the dismissal of the case on the grounds that defendant is a corporation, owner of the vehicle alleged to have failed to stop as aforesaid, and that the act specifically makes the driver or operator solely liable for a violation of this section.

With this contention we fully agree. The statute is wholly penal in its nature and the rule of strict construction must apply. The section specifically makes the “driver or operator” liable. The defendant is a corporation- — an artificial being — incapable of becoming a “driver or operator” of a motor vehicle. That it is the owner and responsible, under some facts, for the actions of its drivers and operators is not material. Had the Legislature intended to hold the owner liable for the violations of the drivers or operators, it would have said so.

And now, Jan. 27, 1930, the motion of the defendant is allowed and the cause dismissed. County of Centre to pay the costs.

Prom S. D. Gettig, Bellefonte, Fa.


author: Alessandkoni, J.,

text:
    Prince & Whitely v. McCutcheon.

      Evans, Bayard & Frick, for plaintiff; James Hay Simms, for defendant.
    July 17, 1930.
   Alessandkoni, J.,

The statement of claim sets forth that the defendant opened a margin account with the plaintiff company, which is a brokerage firm, and from time to time gave plaintiffs orders to purchase and sell stock for his account. As a result of such transactions and depreciation in the value of the securities held for the defendant the defendant’s margin became impaired and upon his failure to produce additional security after notice the plaintiffs sold all the securities which they held for him. As a result, defendant remained indebted to them in the sum of $1064.30, which the plaintiffs seek to recover, together with interest from Jan. 1, 1930.

The affidavit of defense avers that he was induced to open the margin account by one of the plaintiffs’ employees on the representation that a profit would be made for him by trading in stocks on the basis of the difference between the buying and selling prices and that the account was opened by the defendant and accepted by the plaintiff for the purpose of having the plaintiff deal in the difference between the buying and selling prices of stocks for the account of the defendant. It further avers that there was no intention of ever transferring stock to the defendant’s name and that the plaintiffs accepted the account with this knowledge; that an agreement was entered into between the plaintiffs and the defendant to deal in the difference between the buying and selling prices of stocks for the account of the defendant and to make a profit for the defendant in that difference.

The reasons assigned in support of the rule for judgment really raise but one question, to wit: Is the affidavit of defense legally sufficient in averring that the transactions forming the basis of the plaintiffs’ claim were gambling transactions only? We are of the opinion that this question should be answered in the affirmative. The decisions in this state are quite clear in stating that where the transaction is a mere wager on the rise and fall in prices without any intention of ever making a delivery, it is a gambling transaction, but if there was a purchase in good faith with delivery to depend on some future condition, the mere fact that stock is carried on margin does not color the transaction as being gambling nor invalidate its legality: Peters v. Grim, 149 Pa. 163.

The test was stated by Mr. Justice Mitchell in Taylor’s Estate, 192 Pa. 304, as follows: “The test is, did he intend to buy, or only to settle on differences?” The affidavit of defense here avers that there was an agreement between the parties that he was only to settle on differences, and this, under the test stated above, renders the transaction a gambling transaction, and, hence, invalid. Of course, the intention to deal in differences must be conveyed to the broker in order to constitute a defense (Wagner v. Hildebrand, 187 Pa. 136), but the defendant here has averred that the plaintiffs so understood his account and agreed thereto.

In the similar case of Gaw v. Bennett, 153 Pa. 247, the court sustained a verdict for the defendant, saying: “On the contrary, we think the testimony tended to prove that the intention of both parties was merely to wager upon the prospective price of said stocks, settle the difference and pay the gain or loss; in other words, their transactions, throughout, were in fact repeated acts of gambling in the stocks referred to in said accounts, and the jury were warranted by the evidence in so finding.” The affidavit of defense sufficiently avers an agreement between the plaintiffs and the defendant to deal in the differences between the purchase and sales price of stock and to settle the account on the basis of those differences. The affidavit of defense, therefore, avers a contract between the plaintiffs and defendant to engage in gambling transactions, and this being the alleged intention of both parties, the plaintiffs are not in law entitled to recover: MacDonald v. Gessler, 208 Pa. 177.

While the affidavit sets up a legal defense to the claim, it is defective in one respect. It fails to set out with precision the identity of the employee of the plaintiff with whom the agreement was made. The plaintiff is entitled to know the person with whom the defendant contracted to gamble.

And now, to wit, July 17, 1930, leave is granted the defendant to file a supplemental affidavit of defense within fifteen days hereof; otherwise rule absolute.


author: Lewis, J.,

text:
    The Home Mutual Loan Association v. Goldstein et al.

      Joseph Blank, for plaintiff; Frank A. Simons, for garnishee.
    Aug. 4, 1930.
   Lewis, J.,

On July 30, 1929, Charles Lipzschutz was elected trustee in bankruptcy of the estate of Elias Goldstein, who, in filing his schedules, claimed as his exemption the sum of $300 in cash. Subsequently, three attachments sur judgment,- only two of which need concern us here, were served upon the trustee. The first attachment, that of the Mercantile Finance Co., Inc., was served on Aug. 30, 1929. The second, that of The Home Mutual Loan Association, was served on Sept. 16, 1929’. In the interim, namely, Sept. 13, 1929, the trustee filed with the referee in bankruptcy his report, in which the $300 in cash was formally set aside, inter alia, to the bankrupt.

The second attaching creditor having taken a rule for judgment against the trustee, as garnishee, the first attaching creditor was, on petition, permitted to intervene as a party claimant.

It is contended that until the formal setting aside of the cash exemption on Sept. 13, 1929, the $300 was in custodia legis, and that the earlier attachment of Aug. 30, 1929, was, therefore, null and void. This contention raises two related questions:

1. In whom does title to exempt property reside pending proceedings in bankruptcy?

2. What is the legal status of a trustee in bankruptcy?

By the express provisions of the Federal Bankruptcy Act, title to exempt property remains in the bankrupt. “The trustee of the estate of a bankrupt . . . and his successor or successors . . .shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt: ” Bankruptcy Act of July i, 1898, § 70, 30 Stat. at L. 544.

The question was considered by the United States Supreme Court in Lockwood v. Exchange Bank, 190 U. S. 294. The language of the court, speaking through Mr. Justice White, is unequivocal: “The fact that the Act of 1898 confers upon the court of bankruptcy authority to control exempt property in order to set it aside, and thus exclude it from the assets of the bankrupt estate to be administered, affords no just ground for holding that the court of bankruptcy must administer and distribute as included in the assets of the estate the very property which the act, in unambiguous language, declares shall not pass from the bankrupt or become part of the bankruptcy assets. The two provisions must be construed together and both be given effect. Moreover, the want of power in the court of bankruptcy to administer exempt property is, besides, shown by the context of the act; since throughout its text exempt property is contrasted with property not exempt, the latter alone constituting assets of the bankrupt estate subject to administration.”

In First National Bank v. Bartlett, 35 Pa. Superior Ct. 593, 596, the court incorporates in its opinion the language of In re Hill, 2 Am. Bank. Reps. 798: “Exempt property never becomes assets in the bankrupt court for administration. The title never passes. Only a qualified right of possession is in the trustee. As to property which is exempt, relating back to the adjudication, the title remains in the bankrupt and it is only to be set apart, and otherwise the trustee can exercise no right and owes no duty. It never comes into the court of bankruptcy.”

If the exempt property “never comes into the court of bankruptcy,” a bare “qualified right of possession” in a trustee, who is not an officer of the court but merely the nominee of the creditors, is obviously not custodia legis. The distinction between a receiver in bankruptcy and a trustee for creditors is sharply drawn in Zumpfe v. Schultz, 35 Pa. Superior Ct. 106, 109: “There is, as we view it, a manifest distinction between a receiver in bankruptcy, who is the officer of the court, and a trustee of the creditors.” As to the exempt property, the trustee’s only function is a ministerial one, i. e., the protection of his principals, the creditors, against an unfair appraisal. In the instant case, the exemption having been claimed in cash, as permitted by the Act of April 8, 1859, P. L. 425, no appraisal was required: See Larrison’s Appeal, 36 Pa. 130. In any case, the formal setting aside is merely the assent of the creditors, through their nominee, to the exemption as claimed. In no case is there a possible revesting of title or release of the property from the custody of the court, because “it never comes into the court of bankruptcy.”

The rule for judgment against the garnishee is, therefore, made absolute in favor of the claimant, Mercantile Finance Co., Inc., for the sum of $300, less $13.50, garnishee attorney’s fee.


author: Knight, J.,

text:
    Commonwealth v. Bleischwitz et ux.

      Stewart Nase, for Commonwealth; Robert Trucksess, for defendants.
    Jan. 24, 1930.
   Knight, J.,

The defendants, alleged to be unnaturalized foreign-born residents, were charged with keeping a dog in violation of the provisions of the Act of May 24, 1923, P. L. 359. They were convicted by the justice of the peace, and Elizabeth Bleischwitz appealed to this court.

At the hearing before us on Dec. 29, 1929, the following facts were developed by the uncontradicted evidence:

The defendant, Sebastian Bleischwitz, is a foreign-bom, unnaturalized resident of Pennsylvania, who has lived in Montgomery County many years.

The defendant, Elizabeth Bleischwitz, is the wife of Sebastian. She was bom in Pennsylvania, of American parents, and has lived in this state since her birth. She was married to her present husband prior to the year 1907.

Some time previous to Oct. 3, 1928, Sebastian Bleischwitz purchased a dog. This dog was bought for Mrs. Bleischwitz, at her request, and she obtained a proper license in her name for the dog.

On Oct. 3, 1928, the two defendants were arrested on the charge of possessing a dog in violation of the Act of 1923, supra.

As the uncontradicted evidence shows that Mrs. Bleischwitz was the owner of the dog and had it in her possession, there is grave doubt as to the propriety of the conviction of her husband: Com. v. Gatti (No. 2), 29 Dist. R. 539; Com. v. Toney, 9 D. & C. 631.

However, as only the wife has appealed, the conviction of Sebastian Bleischwitz must stand.

As to the defendant, Elizabeth Bleischwitz, the theory of the Commonwealth is that she lost her American citizenship when she married an unnaturalized foreign-born husband, and, therefore, has no right to possess a dog.

Section 902 of the Act of 1923, supra, provides, inter alia, that it is unlawful for any unnaturalized foreign-born resident either to own or be possessed of a shotgun or rifle or pistol or firearm of any make or kind, or a dog of any kind. This is a criminal statute and must be strictly construed. To sustain the conviction the Commonwealth must prove that the defendant is foreign bom and unnaturalized: Com. v. Fedyna, 25 Dist. R. 985. If we concede that Mrs. Bleischwitz lost her American citizenship when she married an unnaturalized foreigner, still the uncontradicted and undisputed fact remains that she is not foreign born. But did she lose her American citizenship when she married Sebastian Bleischwitz prior to 1907?

Under the common law, a wife did not lose her citizenship upon marriage with an alien. The general principle was laid down by Mr. Justice Story, in Shanks v. Dupont, 3 Pet. 242, that “marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife.”

This doctrine of the common law has been changed by legislation. Among the Acts of Congress on the subject is that of March 2, 1907, 34 Stat. at L. 1228, the third section of which provides, inter alia, that “any American woman who marries a foreigner shall take the nationality of her husband.” It has been held that this act does not apply to American women who marry aliens but remain in the United States after their marriage: Ciliberti’s Application, 20 Dist. R. 489.

The Supreme Court of the United States, however, in Mackenzie v. Hare, 239 U. S. 299, held that an American woman who has married a foreigner after the passage of the Act of 1907 loses her American citizenship, regardless of whether or not it is her intention to continue to live in the United States.

We are of the opinion that the Act of 1907 does not apply to the defendant, Elizabeth Bleischwitz, because she was married to her present husband before the act was passed. The act is not made expressly retroactive, and there is nothing in it which would indicate that Congress intended it should be retroactive in scope.

“It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen,” said the Supreme Court in Mackenzie v. Hare, supra.

Of course, the American woman who married a foreigner subsequent to the Act of 1907 voluntarily, by her act of marriage, relinquished her citizenship: Mackenzie v. Hare, supra. This cannot be said of the defendant, Elizabeth Bleischwitz, for when she married an alien the marriage carried with it as a consequence no loss of American citizenship. The exact point was decided in Doyle v. Town of Diana, 196 N. Y. Supp. 864, where the court held that the marriage of an American woman to a Canadian, prior to the Act of Congress of March 2, 1907, did not deprive her of her American citizenship.

The defendant, Elizabeth Bleischwitz, is an American citizen and entitled to own a dog.

It may be noted that the Act of Congress of Sept. 22, 1922, ch. 411, § 3, 42 Stat. at L. 1021, provides as follows: “A woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after the passage of this act unless she makes a formal renunciation of her citizenship before a court having jurisdiction over naturalization of aliens.”

This act does not apply to Mrs. Bleischwitz, because she was married previous to its passage and previous to the Act of 1907, but it is cited to show that Congress has returned to the common law rule.

The Act of 1922, supra, contains a proviso that any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen of the United States.

It appears that Sebastian Bleischwitz has been refused naturalization because he cannot produce a certificate of his arrival in the United States.

Some point was made at the hearing that Sebastian was ineligible to citizenship, and, therefore, his wife lost her citizenship under the provision of the Act of 1922 by her marriage to him. There is no merit in this contention. In the first place, as we have shown, the Act of 1922 does not apply to Elizabeth Bleischwitz. In the second place, Sebastian Bleischwitz is not ineligible to citizenship in the United States as that term is used in the Act of 1922.

From the foregoing discussion it follows that the defendant, Elizabeth Bleischwitz, must be found not guilty, (a) because the Commonwealth has failed to prove that she was foreign born, which is an essential element of the offense with which she is charged; (b) because she never lost her American citizenship, and, hence, may lawfully own and possess a dog.

And now, Jan. 24,. 1930, the defendant is found not guilty. The costs are placed on the county.

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


author: Valentine, J.,

text:
    Conrad et al. v. Hoch.

      R. F. Dilley, for plaintiffs; E. Shortz, Jr., for intervening defendant.
    Nov. 15, 1929.
   Valentine, J.,

The plaintiffs on March 6, 1929, leased to the defendant, Claude Hoch, a certain Packard automobile for the term and period of eleven months. Repairs to the automobile were made by Samuel Weinstock, to whom it had been delivered for said purpose by Hoch. After the institution of this action, Weinstock intervened as a party defendant, under the provisions of the Act of May 3,1923, P. L. 136, filed a counter-bond, and retained possession of the car, whereupon the plaintiffs procured this rale.

Notwithstanding the language of the Act of 1923, supra,, that if a person found in possession of goods files an affidavit that the said goods and chattels “belong to him,” he may file a counter-bond, or otherwise act as a defendant, we are of the opinion that Weinstock, who claims a lien on the automobile by reason of the making of repairs and the furnishing of material, was not entitled to file a counter-bond and thereby retain possession of the automobile (Hersker v. Hoffmeier, 22 Luzerne Legal Reg. 65), even though he made an affidavit that the same “belong to him.”

No statement of title has been filed by the plaintiffs, but the petition upon which this rule is based avers that the automobile was leased by the plaintiffs to Hoch, and while in his possession was placed in the garage of the intervening defendant, who claims the right to the possession of the car by virtue of the alleged lien for repairs, etc.

The car was owned by the plaintiffs but in the possession of Hoch. In order to charge it with the lien claimed by the intervening defendant, “the labor for which the lien is claimed must have been done at the request of the owner or under circumstances from which his assent can be reasonably implied. It does not extend to one not in privity with the owner:” Meyers v. Bratespiece, 174 Pa. 119; Bankers’ C. Security Co. v. Brennan, 75 Pa. Superior Ct. 199, 202. But even though the intervening defendant might not have a valid lien on the automobile or be entitled to file a counter-bond and thus retain its possession, the plaintiffs, in order to procure its delivery to them, must have had the right of immediate possession at the time of the institution of the suit: Lake Shore & M. S. Ry. Co. v. Ellsey, 85 Pa. 283; McFarland-Meade Co. v. Doak, 63 Pa. Superior Ct. 27.

Under the lease, a copy of which is attached to plaintiffs’ petition, Hoch is prima fade entitled to possession of the automobile for a period of eleven months from March 6, 1929, and there is no averment that plaintiffs became entitled to its possession by reason of the failure of Hoch to comply with any covenant therein. Therefore, we are of the opinion that, even though the intervening defendant was not entitled to file a counter-bond, no order directing the delivery of the automobile to the plaintiffs should be made.

The rule is discharged without prejudice to the plaintiffs’ right to renew the application upon averment and proof of facts constituting a breach of the covenants in the lease which entitles them to possession of said automobile.


text:
    Commonwealth v. Eckel.

      John G. Love, District Attorney, for Commonwealth.

      A. C. Dale, S. D. Gettig and John J. Bower, for defendant.
    Jan. 11, 1930.
   Fleming, P. J.,

The defendant having been indicted for the illegal possession and sale of intoxicating liquor was convicted on the illegal possession charge and acquitted on that of illegal sale. He now seeks a new-trial, assigning certain reasons therefor, which we will group, discuss and dispose of in a manner most fitting the proper determination of the questions raised.

A road house was established, in the summer of 1929, in a remote part of Union Township, this county, which became commonly known as “The 101 Ranch.” The testimony of Harry Janet, the owner of the farm house, which had been converted into such establishment, was that he first saw the defendant about June 1, 1929, when the defendant called upon him and wanted to rent the house; that subsequent to this conversation the defendant went with him to Squire Keichline’s office in Bellefonte, where a lease was prepared and signed covering the renting of the property for ten months from June 1, 1929, for a rental of $20 per month; that thereafter the house was cleaned under the direction of the defendant and furniture was installed; that “Mr.” Eckel paid the first month’s rent; that Harold Stuller and the defendant paid one month’s rent together; that after the defendant had been there about two months he saw “it was getting rough around there” and that he notified the defendant to remove, but that defendant did not do so. It subsequently appeared from the testimony of Squire Keichline, whose testimony corroborated that of Janet, the landlord, as to the leasing of the premises by the defendant, that the name used by the defendant in the written lease was “George Byrd.”

County Detective Boden testified that on Aug. 16, 1929, he conducted a raid upon “The 101 Ranch” and that certain named intoxicating liquors were found on the premises about twenty feet from the corner of the house, concealed in a hedge or undergrowth, with a well-used pathway leading from the rear door of the house to a point “very close” to where the liquor was found. It was at this juncture of the trial that the first objection now assigned arose. It appeared from the papers in the case that County Detective Boden had, on Aug. 17, 1929, in an affidavit before Squire Woodring, stated that the alleged violation had occurred on Aug. 10, 1929, and that the indictment contained such date. The district attorney having requested us to be permitted to examine the county detective further as to when Commonwealth’s Exhibits 2 and 3 (being two small bottles, one of which was later identified by the county chemist as liquor containing 34.3 per cent, alcohol by volume) had been delivered to him, we then temporarily declined to rule upon defendant’s objection and permitted the county detective to answer. His answer showed that such exhibits had been delivered to him on Aug. 13, 1929, covered by affidavits of purchase. The objection of defendant and his motion to strike from the record the entire testimony of the county detective was then refused. The county detective then testified that Commonwealth’s Exhibits 2 and 3 were delivered to him by Mrs. Walter Harpster. Mrs. Harpster later testified that she had visited “The 101 Ranch” before Aug. 1, 1929, and had purchased liquor there from a man by the name of McLaughlin. While she was quite ready to volunteer testimony that, in her opinion, the defendant was not in charge of the place, she admitted that the defendant was there and that she saw him there at the time of her purchase from McLaughlin. Later, she testified that she did not know whether or not the defendant was in charge of the place, although earlier she was quite positive that he was not.

Harold Stuller testified that he had gone to “The 101 Ranch” with the defendant. He was asked: “Q. During the time you stayed there did you see any liquor there? A. I didn’t see any money collected; I saw whiskey there, yes. Q. Where did you see it? A. 'In the house. Q. In whose possession? A. Well, really it was in both mine and Eckel’s.” This witness sought to make it appear that the defendant had left the place on Aug. 1, 1929, and that the witness had then taken over the same, with the furniture instalment contract. He admitted having made a subsequent payment on the furniture with defendant’s cheek, dated Aug. 10, 1929, explaining his possession of such check by saying that he had cashed it as an accommodation for the defendant. On cross-examination, this witness admitted that defendant was at the place after Aug. 1, 1929, “but he was just on a visit.”

Later, at the close of testimony on both sides, Commonwealth moved to amend the indictment so that the same should read “that on or about the twenty-fourth day of July, 1929, the defendant possessed intoxicating liquors for beverage purposes” instead of “that on or about the tenth day of August, 1929, the defendant possessed intoxicating liquors for beverage purposes.”

Let us bear in mind a fact which the learned counsel for defendant have evidently overlooked in assigning reasons for their motion. The defendant was acquitted on the count of illegal sale. The only matter before us is that of illegal possession. Evidence of sales concerns us only so far as such evidence is relevant to possession of intoxicating liquor by the defendant. We committed no error in permitting the testimony of County Detective Boden to stand, notwithstanding the fact that the indictment fixed Aug. 10, 1929, as the date of the alleged crime, and his testimony fixed Aug. 16, 1929, as the date of the raid and the seizure of the liquor. Such last named date was prior to the finding of the indictment which was found at the September Sessions, 1929. The Commonwealth is not bound by the date laid in the indictment, but can show any date within the statutory period and prior to the finding of the indictment, except in cases where time is of the essence of the offense: Com. v. Powell, 23 Pa. Superior Ct. 370; Com. v. Major, 198 Pa. 290; Com. v. Grove, 91 Pa. Superior Ct. 553; Com. v. Grill, 94 Pa. Superior Ct. 330. The indictment in the instant case being general and the offense charged being ordinarily a continuing offense, it may be proved by evidence relating to more than one date. This was the rule laid down in Com. v. Baker, 86 Pa. Superior Ct. 376, where it was held that in a trial of an indictment, general in its form, for the possession and sale of narcotic drugs, evidence of possession relating to more than one date, and of sales to more than one person, is admissible in support of the complaint. In that case Judge Henderson said: “In the case of an indictment, general in its form, for the sale of liquor without a license, it is the practice to prove sales to more than one person if the evidence is at hand: Com. v. Montross, 8 Pa. Superior Ct. 237; and there is no apparent reason why a similar practice should not obtain in prosecutions for the sale of narcotic drugs.” With like logic can we say there is no apparent reason why a similar practice should not obtain in prosecutions for the illegal possession and sale of intoxicating liquor under the present law.

The reason assigned relative to the testimony of Stuller is without weight. At one time he testified that the liquor was in the joint possession of himself and the defendant. At another time he testified that it was “under his [the witness’s] control and direction.” The weight of his testimony was for the jury, both as to this feature and as to the sale of the furniture and the check of Aug. 10, 1929, signed “W. B. Eckel,” to the order of “Cash” (Defendant’s Exhibit No. 2), and testified to as having been cashed by him as an accommodation for the defendant. We pause here long enough to query as to why this check does not bear the endorsement of the witness or of the Stempfiy Furniture Company, if it was actually given in payment on furniture, as testified.

Reason three is not in accord with the testimony. Mrs. Harpster stated that the defendant was present when her purchase was made. This, with the defendant’s connection with the lease and the occupancy of the property, left a well defined issue of fact to the jury.

Other reasons assigned, with the probable exceptions to the charge of the court, hark back to the variance in dates between that originally mentioned in the indictment and the testimony of the Commonwealth’s witnesses. We have cited enough authority to show the error of this contention. As to the sufficiency of the Commonwealth’s evidence, it is a notable fact that counsel for defense did not have sufficient confidence in their present contention, at the close of the Commonwealth’s case, to demur to the evidence and to permit us to discharge the jury and dispose of the issue under the authority of Com. v. Sonis & Sonis, 81 Pa. Superior Ct. 205, or to go to the jury upon the Commonwealth’s evidence (see page 32 of the record). There was, especially in the face of defendant’s denial, a well defined issue of fact for the jury which they have efficiently determined.

We have a grave doubt as to whether it would have been necessary for the Commonwealth to have sought to amend the indictment as to date to support this conviction (see authorities above cited). The amendment, however, removes any such doubt and the Commonwealth was wholly within its rights in so amending. The able review of the power of amendment, with the history of its development, as given by Justice Brown in Com. v. Tassone, 246 Pa. 543, clearly shows this right. The variance in the instant case was not material to the merits of the case nor was the defendant prejudiced in his defense upon such merits. The defendant well knew that he was charged with being the proprietor or a co-proprietor of a notorious resort which had become publicly and most unfavorably known throughout central Pennsylvania. By his own story, he was connected therewith only since June 1, 1929. His defense offered was a general denial and testimony that he had been on a trip to New York State after Aug. 1st. To make his hands wholly clean in the matter, he should, and easily could, if such were the exact facts, have shown that at no time prior to Aug. 1st, when he admittedly was connected with the establishment, had he been guilty of unlawful possession of liquor. This, with his defense which he did offer, would have unquestionably gone far to raise the reasonable doubt necessary to prove his innocence. He had been surrounded since June 1, 1929, with the same people who attempted to show his innocence after Aug. 1st. His tenancy was exceedingly short under any interpretation of the facts, and it was to his own personal interest to have shown his clean conduct of the establishment from the beginning. We cannot find from the whole record any reason to say at this time that he has not had a fair trial or that he has been prejudiced in any way.

The objections raised to the charge of the court also relate to the time alleged in the indictment. In answer to these reasons we again point to Com. v. Powell, 23 Pa. Superior Ct. 370; Com. v. Major, 198 Pa. 290 ; Com. v. Grove, 91 Pa. Superior Ct. 553, and Com. v. Grill, 94 Pa. Superior Ct. 330, wherein it has been shown that the Commonwealth is not bound by the date laid in the indictment but can show any date within the statutory period and prior to the finding of the indictment except in eases where time is of the essence of the offense. The exhibits mentioned in our charge all referred to a date prior to the finding of the indictment. It has not been shown that time is of the essence, but, on the contrary, it is plain that the offense is a continuing offense. We are of the opinion that we did not err in those parts of our charge which are given as reasons for a new trial.

The defendant has had a fair trial and has been convicted on proper evidence.

And now, Jan. 11, 1930, motion for a new trial is dismissed and defendant is directed to appear in this court on Saturday, Jan. 18, 1930, at 10 o’clock A. M., for sentence.


author: Potter, P. J.,

text:
    States v. Stapleton.

      James L. Colbert, for plaintiff; Harry W. Petriken, for defendant.
    April 1, 1930.
   Potter, P. J.,

17th judicial district, specially presiding, From the files in this case we gather that the defendant owed the plaintiff the sum of $118.50, with interest from May 12, 1924, on an obligation not containing a waiver of inquisition. An execution was issued, by virtue of which the sheriff levied upon, the real estate of the defendant. Apparently, no personal property was found. The sheriff, on Feb. 11, 1930, notified the defendant that an inquisition would be held on Feb. 17, 1930, at 10 o’clock A. M., at his office. The inquisition was held on the date named and the jury returned that the rents, issues and profits of the real estate levied upon would not pay the debt within seven years, and, therefore, condemned the same. Exceptions were filed to this inquisition and we now have them before us for disposition.

The first exception sets up that at least one of the jurors was not a freeholder. We see no necessity for any of the jurors to be freeholders. The act does not say they shall be. In this case we are proceeding under the Act of May 10, 1881, P. L. 13, which provides that the jury shall consist of six men. Not a word is said about them being freeholders. We cannot read into the statute words that are not placed there by the legislature. Our function is to interpret the laws, not to legislate them. If the law makers of our state intended the jury to consist of freeholders, no doubt they would have said so in the act. In our opinion, the legislature intended this, as in other cases, to be left to the discretion and common sense of the sheriff to summon discreet men of good judgment as jurors. A sheriff is regarded as a man among men in his bailiwick, or he would not be chosen. And it is left to his good judgment to select his own jurors on an inquisition. He is primarily responsible. Neither does the law point out any particular class of men to serve on a coroner’s jury, nor on a jury to hear cases before a justice of the peace. But the selection of such jurors is left to the sound judgment of the officer choosing them. He is supposed to select such men as are apt and reliable. And, we may well ask, what could be gained by requiring freeholders alone to be qualified to sit as jurors on an inquisition? Many men not freholders are better qualified to sit as jurors than many men who are freeholders. It is not saying that because a man may own an acre of land, he is better qualified than a man who has his funds invested otherwise, who may well have a mental concept in advance of a freeholder who owns a tract of land. We think this exception is void of merit as things are conducted at this date.

The second exception complains that the notice required by law was not given the defendant. The lawful notice required by the act is five days. From the files before us we must gather that the notice of the time and place of the inquisition was issued and served on Feb. 11, 1930. The inquisition was held on Feb. 17, 1930, which would give the defendant six days’ notice, one day more than is required. This exception is also without merit.

The third exception states that the return does not set out the value of the property condemned, nor does it set out the rental value thereof. We know of no law requiring the value of the property to be stated in the return. It is sufficient if the jury return that the clear yearly value (meaning the yearly rental) beyond all reprizes is not sufficient within seven years to satisfy the debt and damages. This is what the jury is for. A property might be intrinsically valued at much more than the annual rental might realize, which would not assist in arriving at yearly income. From the evidence submitted to the jury, they are the ones to arrive at the yearly income, and their return is conclusive, unless there appears an apparent abuse of discretion, and we, in this case, have no evidence of any such.

The fourth exception states that there was no legal proof before the jurors of the value of the property. We do not know if there was or not. We presume the jurors had before them such testimony and proof as would enable them to perform their duty in a legal manner. If this is not true, there should be proof before us to show the contrary. There being none, we must presume they discharged their duties in accordance with the oath each one took.

We think we have covered the questions presented to us, and that further discussion is unnecessary.

And now, to wit, April 1, 1930, the exceptions are all dismissed. An exception is noted for the defendant and a bill is sealed.

From R. W. Williamson, Huntingdon, Pa.


author: Geoff, J.,

text:
    Murphy et al. v. Omwake.

      Harris C. Arnold and John A. Coyle, for plaintiffs.

      F. Lymam, Windolph and John E. Malone, for defendant.
    Jan. 18, 1930.
   Geoff, J.,

In this case John C. Murphy, by his mother and next friend, Ella Murphy, seeks to recover from Howard R. Omwake damages for injuries which occurred to him on May 11, 1928, when he was a passenger riding on the running-board of an automobile owned by the defendant, and driven by Geiger Omwake, and the said Ella Murphy, in this suit, seeks to recover for the amount of money expended by her for medical, surgical, nursing and hospital care rendered to her son, John C. Murphy, and which she was obliged to pay by reason of the said injuries.

Prom the statement it appears that at the time of the accident the car of defendant was being driven by Geiger Omwake, who, the statement sets out, was the agent, servant or employee of the defendant, and was being driven within the scope of the said Geiger Omwake’s employment as such agent, servant or employee; that at the time and place of the accident the minor plaintiff was then and there riding on the right running-board of the said Howard R. Omwake’s car, which was being driven by Geiger Omwake; that the minor plaintiff was riding on said car as a guest of Howard R. Omwake and Geiger Omwake, at the express invitation of Geiger Omwake acting then and there as a duly authorized agent for the said Howard R. Omwake; that “the said Geiger Omwake, operating defendant’s automobile, as aforesaid, approached the intersection of West Chestnut and Arch Streets (in the City of Lancaster) at an excessive and negligent rate of speed, without having the car under proper control, and without sounding any warning;” that “at the time and place aforesaid the defendant’s said car, operated as aforesaid, ran into and struck the automobile of one S. R. Nissley, which was then and there crossing said Chestnut Street, proceeding southward on said Arch Street.”

The statement then proceeds to say that the collision was caused by the negligence of the said agent or employee, in that he did, or failed to do, five different things, and then alleges that as a result of the said collision the minor plaintiff was thrown with great violence from the defendant’s automobile, and then describes the plaintiff’s injuries and the expenses which the mother incurred by reason of the accident.

To this statement the defendant filed an affidavit of defense raising a question of law, and he claims that the plaintiffs cannot recover for: “1. The said statement of claim shows on its face that the minor plaintiff was guilty of contributory negligence and therefore the plaintiffs cannot recover.”

Is the position of the defendant tenable in this case?

The Practice Act of May 14, 1915, P. L. 483, section 4, says: “Demurrers are abolished. Questions of law heretofore raised by demurrer shall be raised in the affidavit of defense, as provided in section twenty.”

And section 20 of the same act says: “The defendant in the affidavit of defense may raise any question of law, without answering the averments of fact in the statement of claim; and any question of law, so raised, may be set down for hearing and disposed of by the court. If in the opinion of the court the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment for the defendant, or make such other order as may be just. If the court shall decide the question of law, so raised, against the defendant, he may file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days.”

It is a well settled principle of law that where a defendant files an affidavit of defense in the nature of a demurrer the facts appearing from the plaintiff’s statement of claim must be regarded as true. Now, upon considering those facts as above stated, we find that the car of the defendant was being driven by his agent, servant or employee; that the minor plaintiff was invited to ride as a guest by said servant, agent or employee; and that at the time of the accident the minor plaintiff was riding on the running-board on the right-hand side of defendant’s car.

Was defendant responsible for the minor plaintiff being where he was at the time of the accident? We think not. And in reaching this conclusion we are supported by the opinion of the Supreme Court in Nelson v. Johnstown Traction Co., 276 Pa. 178. In that case a boy eleven and one-half years old assisted his mother in attending a grocery store owned and conducted by her. Some time early in the day he went swimming. When returning home he rode on the truck at the driver’s invitation. Justice Kephart, in delivering the opinion of the court, said:

“In doing so he was, as to the owner, a trespasser, and, short of wantonness, the owner would not be liable for injuries occasioned by the driver (Hughes v. Murdoch Storage & Transfer Co. (No. 1), 269 Pa. 222, 224), but as to others than the owner or persons in kindred relation, the boy was entititled to the same protection as if invited by the owner to ride thereon.”

The plaintiff in this case is in a different position in relation to the owner of the car than he would be where the injury occurred through the alleged negligence of some one other than the driver of the car, that is, through the alleged negligence of some third party who was neither owner nor driver of the car in which plaintiff was injured.

“The test is not that, when the invitation was given, he [the driver] was engaged in the course of his employment in his master’s business, but was the invitation or its consequences in furtherance of the master’s business, so that it might be said to be impliedly within his authority?” Hughes v. Murdoch Storage & Transfer Co. (No. 1), 269 Pa. 222, 223.

The plaintiff, in his statement, alleges that on the day of the accident the automobile was being driven by the defendant’s agent, servant or employee, acting within the scope of his employment, and upon defendant’s business. And in plaintiff’s amended statement, at 6 (a), we find: “The minor plaintiff was then and there riding on the right running-board of the said Omwake car,” and, at 6 (b), he says: “The minor plaintiff was riding on said Omwake car as the guest of Howard R. Omwake and Geiger Omwake, at the express invitation of Geiger Omwake, acting then and there as a duly authorized agent for the said Howard R. Omwake in so doing.” At no place in plaintiff’s statement does he say that the invitation or the consequences thereof were in furtherance of the master’s business, and, therefore, it cannot be said to be impliedly within his authority.

In addition to the cases above cited, the Supreme Court has recently decided the ease of Schomaker v. Havey, 291 Pa. 30, 31, in which, in a per curiam opinion, the court said: “In Harding v. Phila. R. T. Co., supra [217 Pa. 69], at page 70, we said: ‘It is . . . clear that one who takes a position of manifest and imminent danger assumes the risk of his position.’ Certainly, standing on the running-board of a moving automobile is as dangerous as standing on a similar place on a street car, if not more so, and a person who takes such a position on an automobile is guilty of plain contributory negligence,” and then sustained the refusal of the court below to strike off the nonsuit granted in that case.

The syllabus in Schomaker v. Havey, supra, says:

“1. A person who stands on a running-board of a moving automobile is guilty of contributory negligence as a matter of law.

2. One who takes a position of manifest and imminent danger assumes the risk of his position.”

Have we a right to enter judgment here on the affidavit of defense raising a question of law in favor of the defendant?

In Davis v. Edmondson, 261 Pa. 199, we find that “a statement of claim is insufficient where it fails to make out a case clear of contributory negligence on the part of the plaintiff.”

A careful consideration of the facts in the case at hand, together with the cases above cited, and others examined, leads us to the conclusion that the minor plaintiff was guilty of contributory negligence in standing where he did at the time of the accident. The statement discloses that the minor plaintiff was a trespasser so far as the defendant is concerned, and the statement further discloses a case not only not clear of contributory negligence on the part of the plaintiff, but a case in which the plaintiff, so far as this particular defendant is concerned, was guilty of contributory negligence.

Therefore, we believe that the correct conclusion of this matter is that the question of law should be decided in favor of the defendant, and that that question of law being so decided disposes of the whole of the plaintiff’s claim. The court' directs that judgment be entered for the defendant.

Judgment entered for the defendant.

From George Ross Eshleman, Lancaster, Pa.


author: Fox, J.,

text:
    Wilhelm’s Petition.

      William, Wilhelm, for petition; Edgar Downey, contra.
    April 15, 1930.
   Fox, J.,

A stipulation of facts as agreed upon was filed, showing that 23 of the signers are enrolled as members of the Democratic Party, that 40 of the signers do not appear on the assessors’ books in the district as returned by the assessors to the office of the Schuylkill County Commissioners on March 20, 1930, and the names of 5 of the signers are crossed off as voters in the district mentioned opposite their names and marked in the assessors’ books “Moved.”

The Act of July 25, 1913, P. L. 1043, providing for the registration and enrollment of the voters of the state according to their respective party preferences, etc., in section 9, provides that “No elector who is not enrolled and registered as a member of some political party shall be permitted to vote at any primary election.” In section 5 of the said act is provided the method of enrollment.

As to the first matter in the stipulation, this court has frequently held that a nomination petition must be made by electors of the party by which the nomination is made, and it follows that those who are registered as Democrats cannot participate in the nomination of candidates for the Republican Party.

Second, with respect to the 40 voters not enrolled: These signers are not qualified under the 9th section of the said act to vote at the primary election, and, therefore, are disqualified to sign the petition, and must be eliminated. Vide In the Matter of the Nominating Petition of Rex Daniels, etc., 31 Dauphin Co. Reps. 342.

It clearly appears that, eliminating the 23 who are enrolled as Democrats and 40 not enrolled at all, a total of 63, leaves but 183, which being less than 200, the nomination petition, without going any further, must be declared void.

And now, April 15, 1930, the objections to the nomination petition of William Wilhelm, candidate for the Republican nomination for Congress in the Thirteenth Congressional District, are sustained, the petitions are hereby set aside and the prothonotary is directed to certify this order to the Secretary of the Commonwealth.

From Homer L. Kreider, Harrisburg, Pa.