author: Hicks, J.,

text:
    Piacine, Executor, v. National Life Insurance Company of the United States of America.

      V. J. Dalton, for plaintiff.

      M. M. Burke and P. H. Burke, for defendant.
    April 7, 1930.
   Hicks, J.,

The plaintiff sued to recover the amount of an insurance policy issued by the defendant company on the life of Franch Tait, under date of June 16, 1928, pursuant to his written application made on June 12, 1928. The insured died Dec. 39, 1928, or less than seven months after the application was made. The policy, offered in evidence, contained the following provision: “This policy, together with the application therefor, a copy of which is hereto attached and made a part hereof, shall constitute the entire contract between the parties hereto. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties; and no such statement shall avoid this policy unless it is contained in the written application therefor, a copy of which application is attached hereto.” In Part 2 of the application for insurance and designated “Declarations in lieu of medical examination,” signed by the decedent, appear the following questions and answers: “4. Have you any physical or mental defect or infirmity? No. 12. Are you now in good health and free from all symptoms and complaints? Yes. 13. How much time lost from work on account of illness during the last three years? None. 14. On what dates and for what complaints have you been attended by a physician during the last three years? None. 16. Have you ever had any of the following: Asthma? No. Any heart trouble? No.”

The defense pleaded was that there was no liability under the policy, because the answers made by the insured to the questions above quoted were false and fraudulent as to matters material to the risk assumed by the company thereunder.

At the trial, there were offered the admissions apparent by the pleadings to the effect that the insurance contract was entered into; that death had occurred; proofs of loss furnished; refusal of payment demanded, and that the plaintiff was the person, if any, entitled to recover. The burden then shifted to the defendant to establish the fraud, which led to the issuance of the policy, and this it attempted to do by showing it was misled by the untruthful answers given to the questions above quoted. Testimony was offered by the plaintiff in rebuttal to that of the defendant. When all of the testimony for both sides had been taken, the defendant submitted to the court a request for a directed verdict under all the evidence for the defendant, which point the court reserved and submitted the case to the jury for i'ts determination whether all, or any one of the answers, were intentionally false, for the reason that the burden of establishing the falsity of the answers and that they were deliberately made was on the defendant. After deliberating for approximately twenty-four hours, the jury disagreed and was discharged.

In pursuance of the provisions of the Act of April 20, 1911, P. L. 70, the defendant now moves for judgment in its favor upon the whole record. The said act provides, inter alia, as follows:

“Section 1. That whenever upon the trial of any issue a point requesting binding instructions has been reserved or declined, and the jury have disagreed, the party presenting the point may, within the time prescribed for moving for a new trial, or within such other or further time as the court shall allow, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment in his favor upon the whole record. . . .”

If, under the circumstances, we are convinced that, as a matter of law, we should have given binding instructions for the defendant, we must make the rule absolute and enter judgment in its favor: Trial by Jury, Moschzisker (2nd ed.), § 412.

With the introduction of the admissions apparent by the pleadings a prima facie case was made out for the plaintiff. The burden then shifted to the defendant, which was the establishment of the falsity of the answers and their deliberate making. Ordinarily, where the party who has the burden of proof relies upon the testimony of witnesses to make out his case or establish his defense, it is the province of the jury to pass upon the credibility of the witnesses. And while the court is frequently justified in expressing an opinion as to the weight of the evidence, the cases are exceptional where the court is warranted in directing a verdict in favor of the party so situated: Clark v. Metropolitan Life Ins. Co., 62 Pa. Superior Ct. 192, 195; Arnold v. Life Ins. Co., 22 Pa. Superior Ct. 575, 577; Cobb v. Metropolitan Life Ins. Co., 19 Pa. Superior Ct. 228, 231. Or, to state the principle involved in another fashion, which would have warranted the court in directing a verdict for the defendant under all the evidence, was the evidence of the defendant clear, precise, indubitable and uncontradicted and of such a character that a capricious disbelief of it should not be permitted? Timlin v. American Patriots, 249 Pa. 465, 469; Moncur v. Western Life Ind. Co., 269 Pa. 213, 217; McEntee v. New York Life Ins. Co., 79 Pa. Superior Ct. 457; Gimbel v. Ætna Life Ins. Co., 95 Pa. Superior Ct. 1, 4.

Every case of false representation — as distinguished from warranty — is for the jury, where there is a real question as to the materiality of the answer, or of the good faith of the applicant in making the answers, or of the good faith and accuracy of the company’s agent in writing down the answers, if they were written by him, or of the knowledge of the applicant of the answers so written, or where there is a dispute or contradiction as to the falsity of the representations: Suravitz v. Prudential Ins. Co., 244 Pa. 582, 588, 589; Skruch v. Metropolitan Life Ins. Co., 284 Pa. 299; Livingood v. New York Life Ins. Co., 287 Pa. 128; Gimbel v. Ætna Life Ins. Co., 95 Pa. Superior Ct. 1, 5-7; Panopoulos v. Metropolitan Life Ins. Co., 96 Pa. Superior Ct. 415, 424; Kuhns et al. v. New York Life Ins. Co., 297 Pa. 418, 423, 425. All the answers in this ease were material and so held by this court, but the falsity of the answers and the good faith of the applicant in making them were the real questions for decision by the jury.

The 13th question, the answer to which is attacked, related to loss of time from work on account of illness during the three years preceding June 12, 1928, the date of the application. The deceased declared he had lost none. To prove the intentional falsity of this answer, the defendant introduced evidence to show that when he was admitted to the Pottsville Hospital on July 7, 1928, he told Dr. Carpenter that he could not work for some time, and the physician testified that he was unable to work when admitted and must have been unable so to do for some time. Dr. Moll, an interne, also testified that the insured had told him that he had not been able to work for some time, but on his second admission to the hospital on Oct. 29, 1928, the insured told him that he had not lost work for a long time until his first visit to the hospital. Dr. Striegel said that on Oct. 16, 1925, he was not working. In rebuttal, the plaintiff called Edward Lowery, an insurance agent for the Home Life Insurance Company, who had known deceased for eight years, and who visited his home once a week or every two weeks. He frequently saw him during this time working on a delivery truck and had seen him thus employed as late as the early part of June, 1928. Wesley Crone, agent of the defendant who wrote the application, testified that he had seen him working on a truck in May, 1928, and on the day when he signed the application. Joseph Piacine, who is in the general hauling business, said that the insured worked for him continuously from 1925 till his death, doing general hauling, moving, coal hauling and everything that came along, and that his health was good, very good. Prank Gallo, who knew the deceased for eight years and saw him once or twice a week and frequently visited his home, where he stayed, also testified as to his employment on the truck and around the house and that he always looked well. The falsity of the answer under the foregoing testimony could not be declared as a matter of law, as the contradictions and the credibility of the witnesses were for the jury. See Cobb v. Metropolitan Life Ins. Co., supra, p. 231; Arnold v. Metropolitan Life Ins. Co., supra, p. 577; Clark v. Metropolitan Life Ins. Co., supra, p. 195.

The 14th question concerns itself with the dates and complaints on and for which the decedent had been attended by a physician during’ the last three years. The reply negatived attendance by a physician. The defendant called Dr. John Striegel to prove that he attended him within three years, on Oct. 16,1925. It appears from his testimony that Prank Piacine, the insured’s employer, called at the doctor’s office and asked him to come to the home of the insured to ascertain his condition, caused by an alleged injury previously sustained by him, prior to doing something along the lines of compensation. When the doctor called, he could find no evidence of injury, but found another physical condition, of which mention will be made later in connection with another matter. The doctor prescribed for this latter condition and saw him no more. The doctor was called to make an examination for physical injury and for no other reason. Was this being attended by a physician, so to be declared as a matter of law? We do not think so under the ordinary understanding of being “attended by a physician.” The physician was called specially to make an examination as to whether the insured suffered physical injury, and found he had not. That he found something else, for which he left a prescription, is of no importance. He had completed the purpose of his professional call when he had made the vain examination for physical injury, and he understood it so, for he did not call again. Merely calling on a physician, or being called on by him, because of a temporary indisposition, not serious in its nature .and not affecting the person’s sound bodily health, is not being “attended” by a physician within the meaning of such word in an application for insurance: McBride v. Sun Life Ins. Co., 90 Pa. Superior Ct. 35, 41, 42. And in the instant case the physician did not call on the insured because of a temporary indisposition, even; he called to examine him for physical injury and he found he had none. And we think it is for the jury to find, and not for the court to declare as a matter of law, whether such call or professional visit amounts to being “attended by a physician” within the common acceptation of the term: McBride v. Sun Life Ins. Co., supra, p. 42.

The 4th, 12th and 16th questions will be treated together, since they relate generally to good health and disease and are particularly with answers as follows: 4. Have you any physical or mental defects or infirmity? No. 12. Are you now in good health and free from all symptoms and complaints? Yes. 16. Have you ever had any of the following: Asthma? No. Any heart trouble? No. Reading the 4th question, one thinks of a settled disease; an ailment that would probably result to some degree in the general impairment of physical health and vigor: 8 Corpus Juris, 1135. And in the 12th question, inquiry is made of good health, freedom from symptoms and complaints, followed in the 16th by the inquiry concerning the specific diseases of asthma and heart trouble. Thus it is apparent that the question “of good health” involves the three quoted. Defendant contends that the answers to these questions were false and deliberately made. If this is made apparent by undisputed proof, they must be declared intentionally false as a matter of law by the court; if not, the question must be submitted to the jury. What, then, do the proofs show?

We will first discuss, in connection with the three quoted questions, the defendant’s testimony. On Oct. 16, 1925, more than two and one-half years before the date of his insurance application, Dr. John Striegel examined him for a physical injury and found none; but he did find his scrotum very much swollen; he had dysponea, breathed rather heavily, had some swelling of the ankles and lower legs, while his heart showed a murmur and was quite enlarged. Although he did not have asthma, he had a lung condition which commonly terminates in miner’s asthma. The doctor prescribed once for his heart condition and told him he needed attention, but he does not testify that he told him he had heart disease or asthma. The insured told him that he had trouble with his breathing. Dr. Striegel never saw him again. James Brennan, a mine foreman for whom the insured worked in 1924 and early 1925, testified that the insured told him that his “wind was short.” Dr. J. S. Carpenter, Chief of Medical Service of the Pottsville Hospital, where the insured became a patient on July 7, 1928, testified that the patient had chronic myocarditis, which prevailed before the date of his insurance application, and that this heart condition began six or eight months, probably longer, previous to his admission; that he had no asthma, as the laity mean when speaking of that disease; had a large, swollen abdomen, hands and feet markedly swollen; breathing fast; the assured complained of shortness of breath, which the doctor ascribed to the faulty heart action; that in October, 1928, he was readmitted for a recurrence of the trouble; he also stated that Tait told him he had noticed in his work for several months that he was getting short of breath, so that he could hardly do it; that one might have shortness of breath for a couple of years and might not know it was due to his heart. Dr. Moll, an interne at that time, testified that the insured, when admitted, had chronic myocarditis, with which he had been suffering for more than six months. He further stated that the patient reported robust health theretofore. He also said one having shortness of breath would not know that he had a heart condition until in a progressive stage, and not every patient would attribute swollen feet or other heart symptoms, which insured had in the hospital, to a bad heart. Dr. L. D. Heim, Medical Chief of the County Hospital where insured was admitted on Dec. 15, 1928, and where he died on Dec. 30th following, stated that he was in the last stages of chronic heart disease when admitted, from which, in his professional opinion, the insured may have been suffering for a couple of years; and, further, that in June and July, 1928, he must have been so short of breath that he could not have worked. He also testified that he died from chronic valvular heart disease and that shortness of breath would not necessarily indicate to a patient that he had a heart condition. Dr. Louis M. Schultz, who had made an emergency visit upon the insured in the latter part of September or October, 1928, found him suffering with cardiac asthma and a chronic condition of the heart, which, in his opinion, existed from four to eight months previous to his visit. It will be noted that the last four doctors had not seen the patient until after the policy had been issued to him, and their testimony as to the heart disease existing previous to the application for the insurance was based alone upon their professional opinions. Mrs. Anna Webber, who knew the insured for five years, said that during the year before his death, the latter was all “out of wind,” and told her he wished he was able to go to work; that he told her he had miner’s asthma and his breathing could be heard. William Webber, her son, who went to work with the insured for seven years, testified that the insured was a little short of breath, but the witness did not think it would amount to much.

The plaintiff offered evidence in rebuttal. Dr. Henry Dirschedl, a medical examiner for a number of insurance companies, examined the insured on May 27, 1925, and at that time the latter -had no myocarditis. Edward T. Lowery, an insurance agent for the Home Life Insurance Company, acquainted for eight years with the insured and seeing him very frequently up to June, 1928, when the application was signed, testified that he saw him frequently at work as a helper on a general delivery truck, and in June, 1928, his health appeared similar to that of any other time prior to that time, and he appeared in good health; that he never noticed anything wrong, or any difficulty, with or in his breathing.

Wesley F. Crone, the insurance solicitor for the defendant who wrote the application and delivered the policy, testified that the insured signed the application while at work; that he first saw him in May, 1928, and again as late as June 16, 1928; that he appeared like an ordinary person, showed no evidence of particular ill-health; nothing about his health which attracted attention; noticed nothing the matter with his breathing, although they sat together while preparing the application, and saw no portion of his body, limbs or feet swollen, or shortness of breath. Frank Gallo, an old acquaintance, who visited the home of the insured often and saw him once or twice a week, testified that the latter always looked well and never complained. Frank Piacine, insured’s employer since 1925, testified that his health was “good, very good,” and never noticed any shortness of breath. This was competent and relevant testimony: McBride v. Sun Life Ins. Co., supra, p. 39.

“Good health” does not mean absolute perfection of health, but only that the applicant has no grave, important or serious disease and is free from any ailment that seriously affects the general soundness and healthfulness of the system. Because of the contradictions and disputes in the proofs, the questions whether the deceased was in good health at the time the policy was issued, whether he had suffered from illness prior to that time, and whether, if he was in ill-health, he had knowledge of the fact and deliberately concealed the truth, were for the jury. As the answers to the questions propounded to him were representations and not warranties, a proven mistake in the information given in the application did not work a forfeiture of the rights under contract, in the absence of fraud: Mellosky v. Eureka-Md. Assur. Corp., 93 Pa. Superior Ct. 314, 317; Gimbel v. Ætna Life Ins. Co., supra, p. 7.

“Is an applicant for life insurance bound to know at his peril that he is suffering from a latent organic disease, so that his policy will be avoided if a representation that he is in good health afterwards turns out to be untrue in fact, although made in good faith at the time of signing the application? In a general way, it may be said that good health means apparent good health, without any ostensible, or known, or felt sympton or disorder, and does not necessarily exclude the existence of latent unknown diseases on the part of the applicant: May on Insurance, § 295. As to this question there is a distinction between covenants of warranty and of representation. This court held in United Brethren Mutual Aid Society v. Kinter, 12 W. N. C. 76, that where there was no warranty on the part of the insured as to his freedom from disease except those mentioned in the application,, and there being no evidence that the insured had knowingly and wilfully misrepresented the condition of his health, the plaintiff was entitled to recover. That case was put upon the ground that the applicant is bound to exercise good faith in disclosing such facts about the condition of his health as are known to him, and which he honestly believes to be true, and that he is not bound to know at his peril of the existence of a disease which experience teaches may exist in latent form and concerning which one may not, in the very nature of things, have exact knowledge. To the same general effect, see Mouler v. American Life Ins. Co., 111 U. S. 335; Grattan v. Insurance Co., 92 N. Y. 274; Ferguson v. Insurance Co., 102 N. Y. 647. In Washington Life Ins. Co. v. Schaible, 1 W. N. C. 369, the court below held that the validity of the policy depended upon the good faith of the insured in making representations in regard to her health. The jury were instructed that if the applicant answered the questions honestly, and did not wilfully or fraudulently suppress facts known to her, the policy would not be avoided, although at the time of making the representations she may have had an organic disease in latent form unknown to her. The judgment in favor of the plaintiff was affirmed by this court. The same view was expressed by Mr. Justice Green in March v. Life Insurance Co., 186 Pa. 629-645, in the following language: ‘We are not prepared to sustain the twelfth assignment, as the deceased might have been afflicted with an entirely occult ailment altogether unknown to her, and, in that event, her failure to communicate it to the defendant would not be a fraud upon the company:’ ” Suravitz v. Prudential Ins. Co., 244 Pa. 582, 588-590. See, also, Mellosky v. Eureka-Md. Assur. Corp., supra, pp. 316, 317; Skruch v. Metropolitan Life Ins. Co., 284 Pa. 299, 302, 303.

Under the authority of these cases, it was for the jury to say whether the deceased acted in good faith and honestly answered that he was in good health at the time of making the application for insurance. Did he know that he was afflicted with organic heart trouble, or had he been advised that he was suffering from such disease; if so, his answers as to the condition of his health and existence of disease were false and the policy would be avoided if the jury so found. On the other hand, if he did not know of his own knowledge, or from the symptoms which manifest themselves in diseases of the heart, or from consulting a physician, that he was suffering from latent organic heart trouble, and honestly answered that he was in good health, it is for the jury to pass upon all the facts relating to this branch of the case and to determine whether the applicant was in good health to the best of his knowledge and belief when he answered the questions.

A case supported by substantial, though circumstantial, evidence cannot be taken from the jury because of the strength of opposing proof. When a plaintiff’s claim is supported by more than a scintilla of evidence, it must go to the jury, even where a verdict in his favor would be so greatly against the weight of the evidence as to require the granting of a new trial. Under the Act of April 20, 1911, P. L. 70, judgment can be granted on the whole record only where binding instructions should have been given to the jury: Derrick et al. v. Harwood Electric Co., 268 Pa. 136. “Binding instructions cannot properly be given in favor of one party, whether on the point of a right to recover generally or on a particular theory, unless, after accepting as true all the evidence of the other party which is favorable to his contention — except such testimony as is inherently improbable or is contradicted by unimpeached writings or by unquestioned physical facts — and after rejecting all the adverse testimony of the party seeking binding instructions, no other course is reasonably possible:” Statler v. Pennsylvania R. R. Co., January Term, 1930, No. 113, affirming C. P. Franklin Co., December Term, 1923, No. 113, Simpson, J. (not yet reported). As was said in Kuhns et al. v. New York Life Ins. Co., 297 Pa. 418, 423: “The burden of proving the falsity of the answer, and that it was deliberately given, is on the defendant who asserts it: Livingood v. New York Life Ins. Co., supra; Jackson v. State Mutual Benefit Ass’n, 95 Pa. Superior Ct. 56. Unless this situation is made apparent by undisputed proof, documentary or oral, the question is one for the jury, and is not to be declared as a matter of law by the court.”

Under the facts disclosed by the evidence in this case, the truthfulness of the answers or the presence of an intention to mislead and deceive by the replies was for the jury, and the jury having disagreed, a retrial should be had.

The motion of the defendant for judgment in its favor upon the whole record under the Act of April 20, 1911, P. L. 70, is hereby overruled.


source: Caselaw Access Project

author: Fox, J.,

license: Public Domain

text:
    Commonwealth v. Di Franco, Alias Di Frank.

      Robert T. Fox, District Attorney, and E. Le Roy Keen, Deputy District Attorney, for Commonwealth.

      Oscar G. Wickersham, for defendant.
    Oct. 21, 1929.
   Fox, J.,

We have before us a petition for a rule to show cause why the search warrant should not be quashed and why evidence illegally obtained should not be suppressed and not used against the defendant in the trial.

The petition for the rule in substance sets forth that the petitioner is a resident of Harrisburg, Pennsylvania, residing at No. 431 Hay Avenue; that on Sept. 29, 1928, one Samuel - Painter, an officer on the Harrisburg police force, and others, entered the defendant’s home without first having obtained a search warrant as required by law and searched the petitioner’s premises; that they there found a quantity of home brewed beer and in an alleyway, used in common with others then occupying other apartments in the same building, a small quantity of alleged moonshine liquor; that said liquor was not the property of the defendant and was not in his possession or under his control except the home brewed beer, which was brewed by the defendant for his own use and for the entertainment of friends at a christening of his child; that after having found said home brewed beer and said liquor, the aforesaid officer left the home of the defendant, went to the office of an alderman and secured a search warrant for the said premises; that the issuance of said search warrant was wholly illegal and in violation of law; and prays for a rule on the district attorney to show cause why the search warrant should not be quashed and why the evidence illegally obtained should not be suppressed and not used against the defendant or any other person in any criminal proceeding now pending or hereafter to be brought.

An answer was filed by the. district attorney, which in substance admits the averments of the petition and sets forth that at the time the said officer entered the dwelling house at No. 431 Hay Avenue he was armed with a warrant for the arrest of the defendant charging sale and possession of intoxicating liquor; that the moonshine liquor was not found in an alleyway but in a separate outhouse or building; it is denied that seizure was made before the search warrant was obtained.

The said Officer Painter, called as a witness, testified that he had a warrant of arrest for the defendant and went to the residence of the defendant to serve the said warrant of arrest. Objection was made to this testimony as not being the best evidence, the warrant itself being the proper and best evidence. This objection should have been sustained. The warrant not having been offered in evidence and proved, this testimony of Officer Painter relating to the warrant of arrest must be stricken out. The officers entered the house, the defendant being absent therefrom, searched the domicile and' seized the liquor and home brewed beer in question. Officer Painter, after the search and seizure, went to the alderman’s office, made his affidavit and procured a search warrant, went back to the premises — the liquor still being in the possession of the officers who had accompanied him there — to execute the warrant of arrest and took the liquor and beer away. This was an unlawful search and seizure. In the absence of proper proof of having a warrant of arrest, the officers must appear as trespassers. They searched and seized as such, and subsequently a warrant to search and seize was procured. This was done to give an appearance of regularity to the act of search and seizure. Unlawful searches and seizures cannot be made lawful in this way. There was no authority for this search and seizure and the rule should, therefore, be made absolute.

And now, Oct. 21, 1929, upon due consideration, the rule is made absolute and the evidence unlawfully obtained is hereby suppressed.

From Homer L. Kreider, Harrisburg, Pa.


author: Koch, Dep. Att’y-Gen.,

text:
    County Bridges.
    May 12, 1930.
   Koch, Dep. Att’y-Gen.,

We acknowledge receipt of your

letter of May 5,1930, relative to the responsibility for lighting county bridges taken over by the Commonwealth under the provisions of the Act of May 1, 1929, P. L. 1054. The County Solicitor of Allegheny County has taken the position that that county is not liable for the payment for lighting county bridges after June 1, 1930.

Section 1 of the Act of May 1, 1929, P. L. 1054, provides:

“That any county bridges over streams on State highway routes in boroughs, towns and townships may be taken over, at any time after the approval of this act, and all such bridges shall be taken over by the Department of Highways the first day of June, one thousand nine hundred and thirty, and, when so taken over, shall thereafter be built, rebuilt, repaired, and maintained by the Department of Highways at the expense of the Commonwealth from moneys in the motor license fund.”

In an opinion rendered to you on Nov. 7, 1929, we advised that, by the terms of this act, the ownership of the bridges referred to therein was automatically transferred to the Commonwealth. These bridges are, therefore, no longer “county” bridges after the Commonwealth has taken them over for construction, maintenance and repair.

The obligation to light county bridges was imposed upon counties by the Act of April 5, 1917, P. L. 52. This act was amended by the Act of March 17, 1927, P. L. 37, to read as follows:

“That wherever considered necessary for the safety and convenience of the traveling public, the county commissioners of any county within which a county bridge is erected, or the county commissioners of two or more counties acting together with regard to any county bridge located partly in one county and partly in another county or counties, may supply and equip any such county bridge with lights of such kind and character as they shall deem necessary. Any such county bridge more than eight hundred feet in length shall be supplied and equipped with lights by the county commissioners.

“To carry out the provisions of this act the county commissioners, severally or jointly, are authorized to contract with any individual, or with any municipal or private corporation, for the purpose of supplying the necessary light.

“The cost of the construction, erection and maintenance of any lights placed upon any such bridge shall be paid by the county, or by the two or more counties as may be agreed upon by the county commissioners of said counties.” The General County Law, approved May 2, 1929, P. L. 1278, provides for lighting of county bridges in section 722 (P. L. 1388):

“Whenever considered necessary for the safety and convenience of the traveling public, the county commissioners of any county within which a county bridge is erected, or the county commissioners of two or more counties acting together with regard to any bridge located partly in one county and partly in another county or counties, may supply and equip any county bridge within their respective counties with lights of any kind and character as they shall deem necessary. Any such county bridge more than eight hundred feet in length shall be supplied and equipped with lights.

“To carry out the provisions of this act, the county commissioners, severally or jointly, are authorized to contract with any individual, or with any municipal or private corporation, for the purpose of supplying the necessary light.

“The cost of the construction, erection and maintenance of any light placed upon any such bridge shall be paid by the county, or by the two or more counties, as may be agreed upon by the county commissioners of said counties.” Section 723 imposes upon the counties the obligation to maintain and repair county bridges “where no other provision is made for the maintenance thereof.”

The two acts in question were passed at the same session of the Legislature and must be construed together so as to give full effect to the apparent intent of the Legislature. We are of the opinion that this intent, as expressed in the acts above cited, is that the Commonwealth must maintain and repair the county bridges referred to in the Act of May 1, 1929, P. L. 1054, and that the counties must maintain and repair all other county bridges. We are also of the opinion that the counties are charged only with the obligation of lighting county bridges not taken over by the Commonwealth.

From C. P. Addams, Harrisburg, Pa.


author: Brown, Jr., J.,

text:
    Graham v. Mt. Airy Building and Loan Association.

      George Gowen Parry, for plaintiff; George Hart, for defendant.
    May 28, 1930.
   Brown, Jr., J.,

This action is to recover damages for defendant’s failure to satisfy a mortgage, which it held on plaintiff’s property, in accordance with the provisions of section 10 of the Act of May 28, 1715, 1 Sm. Laws, 96, 1 Purdon, 1186, which is as follows: “And if such mortgagee by himself or his attorney shall not, within three months after, request and tender made for his reasonable charges repair to the said office and there make such acknowledgment as aforesaid, he, she or they neglecting so to do, shall for every such offense forfeit and pay unto the party or parties agrieved any sum not exceeding the mortgage-money to be recovered in any Court of Record within this province by bill, plaint or information.”

Following a verdict for the plaintiff in the amount of $678.15, defendant has filed motions for new trial and for judgment n. o. v., contending that the defendant, the mortgagee, did not receive full satisfaction of the mortgage, as required by section 9 of said act, providing as follows: “That any mortgagee of any real or personal estates in this province, having received full satisfaction and payment of all such sum and sums of money as are really due to him by such mortgage, shall, at the request of the mortgager, enter satisfaction upon the margin of the record of such mortgage recorded in the said office, which shall for ever thereafter discharge, defeat and release the same; and shall likewise bar all actions brought or to be brought thereupon.”

On May 17, 1917, plaintiff purchased No. 5422 Whitby Avenue, Philadelphia, the conveyance being to her and not to her husband, Charles A. Graham. Plaintiff herself had no shares in the defendant building and loan association at the time, but her husband had five free shares in its 11th series, on which he had been paying for several years and which had a value at the time of $220. On the same day he gave to defendant an absolute assignment of “all my right, title and interest in Five Shares of Book No. 1141, Series 11th,” of defendant’s stock. For this defendant gave a check for $1000 to his order, which was endorsed by him and used in settlement for the mortgage, which subsequently, on May 20, 1917, plaintiff and her husband executed to defendant in the amount of $1000. Thereafter he and plaintiff made monthly payments to the association of $10.50 (some by him, but most of them by plaintiff), of which $5 was “as and for a monthly contribution of Five Shares of the Capital Stock” of defendant “now owned by the said mortgagors,” according to provisions of the mortgage (the bond containing a similar provision), until the 11th series of the defendant’s stock matured in March, 1925. On Feb. 16, 1925, defendant’s secretary wrote plaintiff, telling her of the maturity of the stock at the March meeting, that this maturity would cancel the $1000 loan held on her property, and that if she would sign the enclosed letter of attorney and return it with $2 for recording the satisfaction of the mortgage, the mortgage would be satisfied and all papers returned to her. Thereupon she sent her check for these charges and also letter of attorney to defendant’s secretary, authorizing him “to sell, assign and transfer unto the Mt. Airy Building and Loan Association my Five (5) Shares of the Capital Stock of the Mt. Airy Building and Loan Association, Book No. 1141 of the 11th Series.” After applying the maturity value of the shares, viz., $1002.95, to the mortgage loan of $1000, there was a balance of $2.95, in which amount, on March 3, 1915, defendant drew its check to the order of plaintiff. However, defendant did not satisfy the mortgage “within three months after request and tender made for his reasonable charges,” and has not done so.

Defendant gives as its reason for refusing to satisfy the mortgage a letter received on or about Feb. 21, 1925, from a member of the bar, purporting to represent plaintiff’s husband, in which demand was made that defendant refuse to satisfy the mortgage. Although defendant replied thereto, no further word has been received from or in behalf of plaintiff’s husband.

“Payments on the stock [of building and loan associations] are not vpso faeto payments on the loan, but, except in the case of insolvency, the borrower may apply his payments on the stock to the loan:” Consolidated B. & L. Ass’n v. Shipley, 95 Pa. Superior Ct. 232, 237. Where a member of a building and loan association assigns his stock to the association absolutely, and not as collateral, he ceases to be a member, and any payments subsequently made by him must be applied to the payment of the mortgage and interest thereon; and if such payments amount to the mortgage and interest, the borrower cannot be required to make further payments, although the mortgage recites that the money was advanced to “redeem” the stock: Stoddard v. Thomas, 60 Pa. Superior Ct. 177; Stoddart v. Myers, 52 Pa. Superior Ct. 179.

The bond and mortgage given by plaintiff and her husband provide that they shall pay to the defendant “the sum of five dollars on the first Tuesday of every month, as and for the contribution on the said five shares of stock” of defendant “now owned by said mortgagors [obligors].” However, the shares of stock were never in plaintiff’s name. She did not own them originally, and her husband gave defendant an absolute assignment of all his right, title and interest therein at the time the mortgage was obtained. The present secretary of the defendant conceded that a mistake was made in not having the shares assigned by the husband to plaintiff, and then by them both to the defendant, it being customary for building and loan associations to require shares of stock to be owned by the persons who make the loan and an assignment by them to the association. No doubt, if plaintiff and her husband had been so requested, this would have been done. However, it was not. Besides, no collateral note was given, and there was no provision in the assignment as to how or when the shares might be appropriated or applied by the defendant to the repayment of the loan or otherwise. Although defendant’s by-laws provide that any member taking a loan “shall assign his stock as collateral security,” the assignment by plaintiff’s husband is absolute in terms. Having executed such an assignment, what right has he to the five shares? In any action brought by him against defendant for the matured value of the five shares of stock the assignment would bar recovery. If he asserted that the assignment was merely as collateral for the mortgage loan, he would be met with the fact that the loan had not been paid, and, therefore, defendant would be entitled to retain the $1000 to pay off this loan. Indeed, defendant’s secretary testified, in answer to the question as to “where is the $1000,” that it has been “paid to the association. . . . The association took the matured value of that book to discharge a mortgage of $1000. . . . The association got the $1000 and applied it against the mortgage loan.” Defendant has thus “received full satisfaction and payment” of the mortgage. It seems to us, therefore, in law and in fact, the mortgage should have been satisfied of record.

As to the amount of the verdict, section 10 of the Act of 1715, supra, provides that the mortgagee shall pay to the party aggrieved “any sum not exceeding the mortgage money.” It is not necessary that the party aggrieved show actual damages: 3 Troubat & Haly’s Practice (6th ed.), 2611, note 601. As was said in Henry v. Sims, 1 Wharton, 187, 200, where section 14 of the Act of April 13, 1791, 3 Sm. Laws, 32, containing phraseology similar to the Act of 1715, was considered: “There is nothing in the act in question from which it can be even inferred that the amount of the verdict should depend on the damages actually sustained. The object is to compel a man to do a plain act of justice, the omission to do which may be vexatious or injurious to another.” Citing this case in Allen v. Conrad, 51 Pa. 487, Chief Justice Woodward, in referring to the Act of 1791, said, at page 490: “The statute prescribes no measure [of damages], except as it limits them to not exceeding half of the debt. The court declined to limit the jury to nominal damages, though there was no evidence of special damage. ... In the instance before us the statutory limit was not transcended; and we have no means of measuring the vexation and inconvenience which the defendant’s neglect of a plain duty occasioned the plaintiff, and, therefore, we cannot say that the damages were excessive.”

It is not necessary that defendant’s refusal to enter satisfaction shall be “wanton, malicious, obstinate and entirely unreasonable and unjustifiable in any point of view.” Such language was used by Mr. Justice Green in Crawford v. Simon, 159 Pa. 585, 589, in affirming a verdict directed for the plaintiff, but it was by way of comment, as indicated by the following: “It would be difficult to conceive of a ease in which they [the penalties of the Act of 1715] could be more deservedly imposed than in this one.” The act itself contains no such or indeed any qualification; mere neglect is sufficient. However, the present case was submitted to the jury under the following instruction: “It is only in case you find that there was no controversy, no genuine controversy, that there was no dispute, real dispute, as to what was due between the parties, that the plaintiff would be entitled to recover anything from the defendant because of the refusal to satisfy the mortgage. Consider whether or not the plaintiff is entitled to a verdict at all at the hands of this association; whether or not there was a real dispute, a real controversy, between the parties as to whether or not this mortgage should have been satisfied. If there was an actual controversy, urged in sincerity, and a bona fide demand of legal right, it would relieve the defendant of liability in this proceeding.” A similar charge was approved in Steigerwald v. Philadelphia Brewing Co., 21 Pa. Superior Ct. 540, 542, in which a verdict for plaintiff in the amount of $650 was affirmed. In this case plaintiff proved actual damages of $250 for counsel fee, $18.15 for costs and $45 for loss of wages by reason of being kept away from her work on account of the issues raised by the defendant.

Defendant’s motions for judgment n. o. v. and new trial are, therefore, dismissed.


author: Chalfant, J.,

text:
    Woodside’s Estate.

      Stewart & Stewart, for accountant; Thomas F. Garrahan, for claimants.

      Howard Neely, for Commonwealth.
    Oct. 4, 1929.
   Chalfant, J.,

At the audit of the account of the administrator the attention of the court was called to the fact that William S. Daugherty and Jennie Daugherty Hughes, two cousins of decedent, had been absent and unheard of for a period of more than seven years, and the court was asked to decree the balance for distribution to the other cousins named in the audit statement. A hearing was held and testimony taken relative to the two absentees. From the evidence it appears that William S. Daugherty, if living, would be about eighty-eight years of age, and Jennie Daugherty Hughes over eighty years. Both had resided near Wilkinsburg, Allegheny County, Pennsylvania, all their lives, or up to the time of their disappearance. In the year 1919 or 1920, an effort was made to locate both of these parties, and an advertisement was inserted in the Pittsburgh Legal Journal and probably another newspaper, seeking information as to their whereabouts, and about the same time inquiry was made at a number of institutions in Allegheny County, but no trace of them was found. The witnesses called were people known to the absentees, and those who had frequently seen them prior to their disappearance. Neither of the parties had signified their intention of changing their residence. From the evidence adduced, we find that William S. Daugherty has been absent and unheard of since Jan. 30,1911, and Jennie Daugherty Hughes since June, 1900, and are presumed to have been dead since those respective dates, and are, therefore, not heirs of decedent and not entitled to participate in the distribution of his estate.

While section 6 of the Fiduciaries Act of 1917 provides a method of decreeing certain absentees to be presumed to be dead, and it should be followed in cases requiring the issuance of letters testamentary or of administration, or where there is no personalty and the title to real estate is involved, yet, in a case like this, where the persons have been absent for so long a time and there can be little doubt of their being no longer in existence, it would seem to be a waste of time and money to insist upon a strict compliance with the statute, and in making this decree we are not without precedent. In Esterly’s Appeal, 109 Pa. 222, which was a partition case, the Supreme Court affirmed the action of the Orphans’ Court in its finding that one of the heirs was presumed to be dead, which decree was based on the facts alleged in the petition and supported by affidavits. The case of Maley v. Pennsylvania R. R. Co., 258 Pa. 73, was an appeal from the Common Pleas Court, where an action had been brought to recover the amount on deposit by a decedent in the employees’ fund of the railroad company. The court left to the jury the question whether two absent sons, who would have had an interest in the fund if living, were dead. Mr. Justice Frazer, in an opinion of the court, says: “The courts have frequently, since the passage of the Act of 1885, assumed jurisdiction to pass on the question' of presumption of death without the formality of applying for letters of administration pursuant to that act.” This ease was followed in Groner v. Knights of Maccabees, 265 Pa. 129, and in his opinion Mr. Chief Justice Moschzisker says: “Finally, in Maley v. Pennsylvania R. R. Co., we held that, notwithstanding the Act of June 24, 1885, P. L. 155, relating to the granting of letters of administration upon the estates of persons presumed to be dead, the common-law rules upon that point are still applicable to cases arising in the Common Pleas involving the question of the presumption of death.” The Act of 1885 was incorporated in the Fiduciaries Act.

In the case of Fanning, Admin’x, v. Equitable Life Assurance Society, 264 Pa. 333, which was an action on a life insurance policy, the presumption of death of the insured was conceded and the question was whether the evidence was sufficient in law to sustain the finding of a jury that the insured died prior to a certain date, but no question was raised as to the manner in which it was ascertained. This method of finding the presumption of death is recognized in Freeman’s Estate (No. 1), 227 Pa. 154, which was an appeal from the Orphans’ Court of Philadelphia County. In Rees’s Estate, 246 Pa. 188, the Orphans’ Court made a final decree of distribution which contained a finding of fact that a legatee had died previous to the death of the testator, intestate, unmarried and without issue, and that the legacy had therefore lapsed, and the fund was distributed among testator’s heirs; and, while this was not the subject of the appeal, nevertheless, the practice was not criticised. In Sherwood’s Estate, 206 Pa. 465, the appeal was from the refusal of the Orphans’ Court to grant a review of the decree of distribution to the administrator of the estate of an absentee, when there had been a decree of the presumption of death under the Act of June 24, 1885, the petition alleging that the absentee had been dead for so long a time that he was incapable of inheriting any part of his mother’s estate. The lower court, in dismissing the petition, said: “At this time there must be shown some ground for granting a bill of review in this estate other than a supposed hardship which may affect the petitioners growing out of the necessity of preserving the estate of Henry F. Sherwood, or his heirs, should they or some of them appear; for, although he is presumed dead, that presumption may be overcome or the right of the petitioner to this fund concluded at any moment by proof that he is living or that he left heirs living. He or they may appear and demand the estate.” This case was affirmed, and in its opinion the court said: “While it may be conceded that the Orphans’ Court might have entertained such a bill for the correction of a manifest error of fact, it is not clear that it could do so for an error of law which might have been the subject of appeal, and certainly no case has been brought to our attention which holds that it must do so.”

We do not consider the above case in conflict with our decision; in fact, it rather confirms it. The main thing in the mind of the court was the preservation of the estate of the presumed decedent if he were alive, and this we will do by requiring security to be given by the distributees; but we do not think this is a necessary requirement in all cases, but should be left to the discretion of the judge before whom the hearing is had. We can find nothing in the foregoing cases or in any others which precludes the finding of the presumption of death in connection with the audit of an estate of a decedent, where the sole question is the ascertainment of the proper distributees of the fund. It is a common practice in the auditing of accounts to make distribution on the strength of testimony of witnesses who claim to know the fact of death. Why, then, is it not permissible to determine the fact of death when the testimony raises a presumption?

The fund in this case will be distributed among the eleven cousins named in the audit statement, subject to assignments and attachments; but each distributee shall file his own bond without sureties in double the amount of the portion of the presumed decedents’ shares which each one receives, conditioned that if either or both of said presumed decedents were alive on Aug. 27, 1928, such amounts received will, on demand, be refunded to said presumed decedents or their legal representatives.

From William J. Aiken, Pittsburgh, Pa.


author: Darr, P. J.,

text:
    Jefferson County v. Hunter et al.

      Wilson & Wilson, County Solicitors, for plaintiff.

      Raymond E. Brown, for defendants.
    Jan. 21, 1930.
   Darr, P. J.,

The single question here involved is the propriety of the following surcharge by the county auditors in their report of the financial condition of Jefferson County for the year 1927: “We further certify and report that after a fair, impartial and conscionable audit, adjustment and settlement of the accounts of the County Commissioners, we find that they should be, and do hereby surcharge County Commissioners S. A. Hunter, Perry L. Wingert and John Daugherty with the sum of Twenty-six Hundred Seventy-eight and 64/100 Dollars ($2678.64), said sum having been illegally, injudicially, imprudently and lavishly expended by them in and about the erection of a retaining wall surrounding the County’s property and in disposing of salvage from the retaining wall removed from said premises. . . .” The report was filed on Feb. 24, 1928, and, in a proper way and within the proper time, Mr. Hunter and Mr. Daugherty jointly appealed therefrom. Thereafter, we directed an issue, as provided by the Act of April 15, 1834, § 56, P. L. 537, in which the county was named as plaintiff and the two surcharged commissioners defendants. Perry L. Wingert, the other commissioner, who has appealed independently of his associates from the same surcharge, is not, by his own choice, a party to these proceedings. Counsel for the respective parties having filed an agreement that a trial by jury be dispensed with and that the decision of the case be submitted to the court for hearing and determination, as provided by the Act of April 22, 1874, § 1, P. L. 109, we heard the testimony and are now prepared to determine the issue. No points or requests were submitted by either side. The following is a statement of the facts found and our conclusions of law:

Facts.

1. The defendants, S. A. Hunter and John Daugherty, were two of three county commissioners for Jefferson County, Pennsylvania, for the years 1924, 1925, 1926 and 1927.

2. On Feb. 23, 1927, the county entered into a written agreement with R. H. Richards, a contractor, by the terms of which the latter agreed, for a consideration of $246,590.67, to “provide all the materials and perform all the work for the remodeling and rebuilding of the Jefferson County Court House . . . (except heating, plumbing and electric wiring) ... as shown on the drawings and described in the specifications prepared by Emmett E. Bailey, Oil City, Pennsylvania, Architect. . . .”

3. The plans and specifications for the work were prepared by Emmet' E. Bailey, a competent and experienced architect, and had been approved by a previous board of county commissioners on Feb. 9', 1923, and by Hon. Charles Corbet, who was then President Judge, on Feb. 27, 1923. Two successive grand juries had recommended that the court-house be repaired and remodeled, and the condition of the building and its lack of modem facilities had been a source of complaints by numerous other grand juries. We approved the contract for the work on March 4, 1927, which was awarded to Mr. Richards as the lowest responsible bidder after due advertisement and the submission of several other competitive bids.

4. Under the head “Alterations & Additions,” the specifications provided that “the architects shall have the power to require alterations in the work shown or described in the drawings or specifications and the contractor shall proceed to make such changes without causing delay. In every such case, the price agreed to be paid for the work under the contract shall be increased or decreased, as the case may require, according to a fair and reasonable valuation of the work added or omitted, and value of such work shall be fixed by fair admeasurement and valuation made by the architect or by some competent person appointed by him. Such alterations or variations shall in no way render void the contract and no claim for variations or alterations, or the increased or decreased price thereof, shall be valid, unless done in pursuance of an order from the architect and notice of such claim made to him in writing before the commencement of the work.”

5. A bulletin dated Feb. 14, 1927, styled “Bulletin No. 1,” attached to the specifications furnished to prospective bidders, provided, among other things, that the “present fence around property to be removed by County Commissioners and to be their property. This does not include stone steps, however, these to be wrecked by General Contractor and to be his property.”

6. The court-house, as remodeled and enlarged, stands upon a lot of land in Brookville, bounded on the south by Main Street, on the east by Pickering Street, on the north by Cherry Alley, and on the west by an unnamed alley extending from Main Street to Cherry Alley. When the work was undertaken, which resulted in the enlargement and improving of the facilities of the court-house, there was a stone wall surmounted by an iron fence on all four sides of the lot, which had been constructed at an early date and served the purpose of supporting Cherry Alley on the north, the level of which was above the ground floor of the court-house, and a portion of the unnamed alley on the west, a part of which was likewise above such level. The wall and fence also prevented promiscuous trespassing upon the property. The plans prepared by the architect required an excavation in the rear of the property or on the Cherry Alley side to a level nine feet below the bottom of the old stone wall. The ground north of this wall was wet or “springy,” and even before the excavation was commenced it did not prevent drainage from at least four springs of water onto the county’s property. On several occasions, prior to the decision of the commissioners to make the improvements, water drained into the court-house cellar in quantities sufficient to extinguish the fire in the furnace, and at all times the cellar, where valuable records were stored, was damp and unsanitary. When the excavation was made below the bottom of the old wall, which was practically flush with the pavement on Cherry Alley, nothing remained to support the highway, and, if the contractor had not taken precautions to shore it up, “the whole alley would have been in against the court-house.” The iron fence which stood on the top of the old wall prevented horses, vehicles and pedestrians on Cherry Alley from being precipitated from its level to that of the county’s land, which was several feet lower. The same could be said of a portion of the fence on the west or unnamed alley side. While the old fence and wall on Cherry Alley were being replaced by new ones, the contractor “had the pleasure of pulling a team out" which had fallen from the alley.

7. After the work under the original specifications, which did not provide for the replacement of the wall and fence, had progressed to a place where the difficulties encountered made it imperative that the building and grounds be protected from water and a subsidence of Cherry Alley and possibly a portion of the unnamed alley, the architect conferred with the commissioners, and, in the language of one of them, “we found we would have to put in a concrete wall to take care of the drainage from the hill, as we had a great deal of trouble with the old furnace, with water coming in and drowning out the fire in the furnace. We told Mr. Richards we wanted to make it safe.” Another difficulty was thus described: “Mr. Richards, in throwing the dirt out, had to have a platform about five feet high and had to relay the dirt up to the alley, and about as fast as they would throw the dirt out it would slip back; it was quicksand or something of that nature.” Accordingly, at his own suggestion, the architect prepared plans and specifications for the additional work, submitted the same to the contractor and requested him to make an estimate of its probable cost. Thereafter, the architect, having submitted the contractor’s figures to the commissioners with his approval, ordered Mr. Richards to proceed with the work. Upon its completion, the latter rendered a bill for the new wall and fence, which included the entire cost of excavation, materials and labor, amounting to $12,688.63, and, upon the architect’s approval thereof by certificate, the same was paid.

8. The wall and fence in front of the court-house were not replaced. Finding no market for the stone removed from the old wall, the commissioners had a portion thereof hauled to the County Home property, where it still remains. They found that “it wouldn’t pay us to move” the balance. A part of the old fence was hauled to the same place, where it remains undisposed of. The commissioners were advised by the architect that the replacement of the wall on three sides of the property “was an extra that had to be put in there for protection of the building and grounds,” and that “this work would be called extra from the general contract.” All of the dealings of the contractor, from the beginning until the completion of the extra work, were with the architect, although the commissioners, acting upon the advice of the architect, consented that it be done.

9. The surcharge appealed from is in the sum of $2678.64, which, apparently, in the opinion of the auditors, is the difference between the actual cost of the new wall and fence and what it would have cost had the commissioners not acted “illegally, injudiciously, imprudently and lavishly.” Only two witnesses were called by the county to sustain the surcharge. The first was a civil engineer, who, after the completion of the work and without accurate knowledge of the amount of excavation required or of difficulties encountered, estimated that it could have been done for $10,926.25. He absolved the commissioners of lavishness, however, when he replied “I would not” to the following question put to him on cross-examination: “Q. Mr. Pealor, taking into consideration the fact that the county commissioners paid Mr. Richards the sum of $12,688.63 for the complete retaining wall and fence, would you say that the difference between that sum and your estimate indicates a lavish expenditure of money?” The other witness called by the county described himself as having been “in the contracting business for the last fourteen years — highway, road building.” His “total estimate of the' entire cost of the retaining wall and fence” was $9936.09. He was asked, on cross-examination: “Would the fact that your estimate of the cost of this work based upon the plans and specifications was approximately $10,000 and the work actually cost $12,688.63 indicate to you that the commissioners had been extravagant and lavish in having the work done and paying for the work?” He answered, “No, I wouldn’t say the commissioners were lavish. I think they were misled. Q. Then you don’t attach any particular blame to them? A. No, not to them.”

Conclusions of law.

1. By the terms of section 48 of the Act of April 15, 1834, P. L. 537, 545, it was the duty of the auditors to “audit, settle and adjust the accounts of the commissioners . . . and make report thereof to the Court of Common Pleas . . . together with a statement of the balance due from or to such commissioners. . . .”

2. County auditors have jurisdiction to examine the accounts of the county commissioners and to judge whether particular expenditures of public moneys were legally and honestly made, and may surcharge the commissioners with any amount which they find was not legally and honestly expended: In re Report of County Auditors, 8 Kulp, 415.

3. The Act of April 15, 1834, § 11, P. L. 539, requires .county commissioners “to keep and maintain the public buildings ... of the county [which includes the court-house] in suitable and convenient order and repair, and it shall be lawful for them, when necessary, having first obtained the approbation of the grand jury and of the Court of Quarter Sessions of the county, to alter, add to or enlarge such public buildings.”

4. A proper surcharge by county auditors must be more than an expression of opinion that a particular work cost too much. It must appear that such surcharge was the result of auditing, settling and adjusting the commissioners’ accounts: Com., to use, v. United States Fidelity & Guaranty Co., 220 Pa. 148, 152.

5. On an appeal from the auditor’s settlement, the issue to be tried is confined to the items of error specified by the parties: Cardón v. Clearfield County, 8 Dist. R. 386; and it is error for the Common Pleas to allow the introduction of new matters: Luzerne County v. Whitaker, 100 Pa. 296.

Discussion.

The auditors, by failing to surcharge the commissioners with the whole cost of the retaining wall and fence, must have approved of the legality of the transaction. The entire cost of the work was $12,688.63, whereas the amount of the surcharge is only $2678.64. There is nothing in the report to show how the amount was arrived at, because it is neither the difference between the actual cost and the estimate of Mr. Pealor or that of Mr. Young, both of whom .were employed by the auditors and whose estimates are nearly $1000 apart. If the building of the wall and fence was illegal, the commissioners should have been surcharged with $12,688.63, its entire cost. Presumably, the auditors were of opinion that the work cost too much, and that is the only question, if any, before us. Without assigning any reasons whatever, they make the bold assertion in their report that “said sum” ($2678.64) was “illegally, injudiciously, imprudently and lavishly expended ... in and about the erection of a retaining wall surrounding the county’s property and in disposition of salvage from the retaining wall removed from about said premises.” We greatly doubt the sufficiency of such a general and indefinite surcharge. In Com., to use, v. United States Fidelity & Guaranty Co., 220 Pa. 148, a board of county auditors certified in their report that the county commissioners “have made improper and illegal payments on account of the building of the county poor house, and work connected therewith, to the amount of $14,868, and we, therefore, surcharge the county commissioners, viz. [naming them], equally with the said sum of $14,868; and we make this a part of our report.” In an opinion delivered by Mr. Justice Brown, the Supreme Court said: “The law prescribes no form in which the report of county auditors shall be made: Godshalk v. Northampton County, 71 Pa. 324; but if any county officer whose accounts are to be audited is to be surcharged by the report of the auditors, it must appear that such surcharge is the result of auditing, settling and adjusting his accounts. The duty of the auditors is to ‘audit, settle and adjust’ the accounts of the respective county officers, and until they have done so there can be no surcharge. Liability resulting from the report of county auditors is a statutory one, and the requirements of the statute must be followed before it can be incurred. In surcharging the county commissioners as the custodians of the funds of the poor district in this case, it does not appear that such surcharge was the result of auditing, settling and adjusting their accounts. The report of the auditors is nothing more than an expression of opinion by them that the county poorhouse had cost too much money, and payments for it to the extent of $14,868, were therefore, improper and illegal. That sum, with which the commissioners are surcharged, was not found to have been improperly and illegally paid as the result of auditing their accounts with the poor district and passing upon the disbursements made. What item or items in the payments made by the commissioners were improper and illegal? It was their right to know this from the auditors’ report, and they were not required to appeal from a summary surcharge. The report has properly been treated by them as a nullity so far as it pretends to audit, settle and adjust their accounts with the poor district. Being but a mere expression of opinion by the auditors that the county commissioners had paid too much for the poorhouse, it would not be any evidence of liability in a suit against them to recover sums alleged to have been improperly expended by them, and much less can it be the basis of a final judgment against them because unappealed from.”

Treating the surcharge, however, as having been properly made, because it has been appealed from and an issue has been based thereon, our single inquiry is whether there is anything in the record to sustain it. When an appeal from the report of county auditors is entered within the required time, the filing of such appeal puts the burden upon the commissioners of showing that they have legally disbursed the funds of the county: In re Auditors’ Report, 245 Pa. 17. We are satisfied that the two commissioners who filed this appeal have adequately assumed their burden. The building of the wall and .fence on the north or Cherry Alley side of the property was absolutely necessary and they would have been subject to criticism if they had not, on their own motion, ordered it done. The same may be said of a portion of the wall and fence on the west or unnamed alley1 side. To have constructed a wall and fence only where it was absolutely essential would have marred the beauty and symmetry of the completed structure, and they were justified in extending the same along Pickering Street. Charged with the duty of keeping and maintaining the court-house and appurtenant grounds “in suitable and convenient order and repair,” and acting upon the advice of a competent and experienced architect, who ordered that the work be done as an “extra” under the original contract covering the remodeling and enlarging of the court-house, which contract and the plans and specifications for the work had been approved by the Court of Quarter Sessions, the commissioners, in good faith and without fraud or profit to themselves, ordered that bills for the work be paid. In so doing they committed no wrong, and our opinion in this respect is concurred in by the only witnesses called by the county. Hence, we find for the defendants.

Order.

And now, Jan. 21, 1930, it is ordered and directed that upon the filing of this decision in the office of the prothonotary, notice thereof shall be forthwith given by him to the parties or their attorneys, and, if no exceptions thereto are filed within thirty days after service of such notice, judgment shall be entered thereon in favor of S. A. Hunter and John Daugherty, the defendants.


author: Hakgest, P. J.,

text:
    Commonwealth v. Baltosser.

      Robert T. Fox, District Attorney, and Michael E. Stroup, for Commonwealth.

      W. Justin Carter, for defendant.
    March 26, 1930.
   Hakgest, P. J.,

The defendant was tried on nine indictments for perjury and found guilty, Jan. 24, 1929', on three of them. Whereupon motions in arrest of judgment and for a new trial were filed and argued Jan. 8, 1930.

The indictment in this case was, in part, as follows:

“That George W. Baltosser . . . did unlawfully, wilfully, corruptly and falsely swear before Hon. William M. Hargest ... at a session of the Court of Quarter Sessions of the Peace, in and for the County of Dauphin ... in a judicial proceeding . . . wherein one Luther G. Smith was charged with having committed the crime of uttering a forged instrument, entered to No. 152 September Sessions, 1924, the said oath being duly administered ... by Harry M. Fairchilds . . . Clerk of the Court of Quarter Sessions aforesaid . . . and it being . . . material ... to ascertain and determine the genuineness of the signatures of the said George W. Baltosser ... to certain written instruments . . . offered and presented at said trial as standards for comparison with the disputed signature ‘George W. Baltosser,’ upon the judgment note alleged to he false, to know and assist in knowing whether or not the said Luther G. Smith committed the crime of uttering a forged instrument, . . . the said George W. Baltosser did knowingly, unlawfully, wilfully, corruptly and falsely depose, swear, say and give in evidence upon oath as aforesaid in substance and to the effect following, that is to say, that the signature ‘George W. Baltosser’ attached and affixed to ... an assignment of life insurance policy dated the 13th day of August, A. D. 1921, from George W. Baltosser ... in favor of the Brotherhood Relief and Compensation Fund, Inc., . . . assigning the policy of insurance known as No. 7589746 issued by the New York Life Insurance Company on the life of George W. Baltosser . . . and known and designated upon the trial of the issue as ‘Defendant’s Exhibit No. 3,’ was not the genuine signature of him, the said George W. Baltosser, whereas, in truth and in fact the said George W. Baltosser then and there well knew that the said signature, ‘George W. Baltosser, . . . was genuine and in the own proper handwriting of him the said George W. Baltosser.”

At the trial it appeared that the defendant was a member of the board of directors of the Brotherhood Relief and Compensation Fund, and Luther G. Smith was its president; that the directors concluded to use money of the corporation to purchase homes for themselves; that the defendant borrowed $5500 from the organization but ostensibly through Luther G. Smith’s name; that the defendant purchased the home of Luther G. Smith; that subsequently there was found on the records of this court a judgment note, dated April 2, 1922, for the $5204, payable six months after date to the order of Luther G. Smith, which purported to be signed by “George W. Baltosser” and “Mrs. Virginia Baltosser;” that defendant brought in this court a criminal prosecution against Luther G. Smith, charging the latter with forging and uttering this note. There were two trials in this court, one before Hon. C. V. Henry, specially presiding, in January, 1925, in which Smith was found not guilty of forging but guilty of uttering. Judge Henry found it necessary to grant a new trial. The case was subsequently tried before the writer upon the issue of uttering, and Smith was acquitted, the costs being divided between the prosecutor and defendant. Thereupon these prosecutions were brought, charging the defendant with perjury as to a number of signatures, and he was convicted upon the indictment now before us and in two other cases.

At the trial a motion was made to quash the indictment, which was overruled, and, after the verdict, there was a motion in arrest of judgment. The reasons assigned in this motion are that the indictment is uncertain because (a) it charges the offense to have occurred “on or about, to wit, the 27th day of June,” 1927; (b) it did not state with particularity the testimony alleged to be false; (c) the averment that the defendant swore “in substance and to the effect following” was a conclusion and did not sufficiently advise the defendant of the testimony alleged to be false.

All of these reasons are highly technical. Courts ought not to adhere to unimportant technicalities in criminal proceedings. We have been trying to free the administration of justice from them for more than a century. In Com. v. Keenan, 67 Pa. 203, 206, Mr. Justice Agnew said:

“The strictness of criminal pleading has found its greatest rigor and its highest reason in a country where, in the time when Sir William Blackstone wrote, one hundred and sixty offenses were punishable with death. Humane judges would catch at any slip when a life was to be saved. But in this state, where but a single crime is capital and where the whole criminal code is administered in mildness and mercy, there is no such reason for strictness of pleading. Therefore, it was said by Justice Sergeant, in Sherban v. Com., 8 Watts, 213, that it is sufficient in indictments that the charge be stated with so much certainty that the defendant may know what he is called on to answer and that the court may know how to render the proper judgment thereon. Over-nice exceptions, he says, are not to be encouraged, especially in cases which do not touch the life of the defendant.”

Section 21 of the Criminal Procedure Code of March 31, 1860, P. L. 427, provides:

“In every indictment for wilful and corrupt perjury it shall be sufficient to set forth the substance of the offense charged, and in what court, or before whom the oath or affirmation was taken, averring such court, or person, or body to have competent authority to administer the same, together with the proper averment, to falsify the matter wherein the perjury is assigned, without setting forth the information, indictment, declaration or part of any record or proceeding, other than aforesaid, and without setting forth the commission or authority of the court, or person, or body before whom the perjury was committed.”

In Com. v. Romesburg, 91 Pa. Superior Ct. 559, 562, which carries the language of Com. v. Keenan, supra, down to date, it is said:

“Every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of assembly prohibiting it. The trend of the decisions of our Supreme Court has been toward sustaining an indictment as good in substance, if the charge be stated with such certainty that the defendant may know what he is called upon to answer, and the court may know how to render the proper judgment thereon. Over-nice exceptions are not to be encouraged, especially in cases which do not touch the life of the defendant: Com. v. Speiser, 79 Pa. Superior Ct. 469. In passing upon the sufficiency of criminal proceedings, courts look more to substantial justice than to technicalities: Com. v. Keenan, 67 Pa. 203; Phillips v. Com., 44 Pa. 197.”

See Com. v. White, 24 Pa. Superior Ct. 178, 180; Com. v. Price, 80 Pa. Superior Ct. 291, 294.

(a) Particularly technical is the reason that the indictment is indefinite because it charges the offense to have been committed “on or about the 27th day of June.” Had no day certain been laid, the indictment would have been insufficient (Com. v. Dingman, 26 Pa. Superior Ct. 615, 620; Com. v. Nailor, 29 Pa. Superior Ct. 271, 272; Com. v. Major, 198 Pa. 290, 300); but when the time is laid prior to the finding of the indictment, subsequent to the statute describing the offense and within the period prescribed by the statute of limitations (Com. v. Nailor, supra), any time within that period may be shown on the trial: Com. v. Ryhal, 274 Pa. 401, 409; Com. v. Weiss, 284 Pa. 105, 108. So an offense charged “on or about” a given date is good: 1 Whar. Crim. Prac. (10th ed.), § 1065. A misstatement of the date is a mere formal defect: Com. v. Tassone, 246 Pa. 543, 549. It follows that this objection is unsound.

(b) So the reason this indictment does not charge an offense with sufficient particularity is also unsound. The indictment recites the time, the tribunal, the official administering the oath, and the materiality of the testimony. It is contended that because there is no specific allegation that the testimony was false the indictment is bad. The- defendant cites Perdue v. Com., 96 Pa. 311, 319, and Com. v. Cauffiel, 84 Pa. Superior Ct. 278, 281, to sustain this contention. In the first case it is said that an indictment for perjury is not good that “does not contain a solitary averment, intimation or inuendo that any fact set forth in the answer was false or untrue in any particular.” In the second case it is stated that the allegation of false swearing “without the further statement that the oath was a false one is bad,” and, quoting from Wharton on Criminal Law, it is further said:

“The indictment must proceed by particular averments ... to negative that which is false, and it is necessary that the indictment should thus expressly contradict the matter falsely sworn to by the defendant.”

This is precisely what the indictment in the instant ease does. The statute does not say that the indictment must use the word “false” in contradicting the matter falsely sworn to. The statute says that the indictment must contain an averment “to falsify the matter wherein the perjury is assigned.” The indictment before us having charged the perjury as consisting in the defendant’s falsely swearing that he did not sign the assignment of a life insurance policy continues:

“Whereas, in truth and in fact the said George W. Baltosser then and there well knew that the signature ‘George W. Baltosser,’ affixed to said instrument aforesaid, being an assignment of a life insurance policy, was genuine and in the own proper handwriting of him the said George W. Baltosser.” Would the indictment have been any stronger or clearer if it had averred that his statement was false instead of averring that he falsely swore that he had not signed the paper and at the time well knew that he had and that the signature was his own proper handwriting?

In Com. v. Rupple, 1 Pa. C. C. Reps. 663, it is said “that the averments as to the truth of the matters denied by the defendant are sufficient.” See, also, State v. Brown, 102 N. W. Repr. 799, 128 Iowa, 24; Com. v. Lashley, 74 S. W. Repr. 658, 25 Ky. L. 58; State v. Voorhis, 20 Atl. Repr. 26, 52 N. J. L. J. 351.

(a) Great stress is laid upon the fact that the indictment charges that the defendant did falsely swear “in substance and to the effect following, that is to say,” etc. What follows charges with particularity that the defendant said that the signature to the written instrument specifically described “was not the genuine signature of him, the said George W. Baltosser.” It is strenuously contended that the words “in substance” and “to the effect” charge a conclusion and not merely the substance of the alleged perjury. The statute provides that in the indictment “it shall be sufficient to set forth the substance of the offense charged.” Substance is “that which is essential; it is used in opposition to form:” Bouvier’s Law Dictionary. “The essential part of anything said or written put into a brief condensed statement:” Standard Dictionary.

In Com. v. De Cost, 35 Pa. Superior Ct. 88, 92, 93, it is said:

“It is to be borne in mind that it is not absolutely essential in an indictment for perjury to set out the precise words of the testimony alleged to be false; it is sufficient to set forth its substance and effect, taking care, however, that the meaning of the matter set forth is clearly apparent.”

There is no ambiguity in this indictment. All the essentials of the offense required by the statute are contained in it: Com. v. B. & O. R. R. Co., 35 Pa. Superior Ct. 474, 477. Moreover, if the defendant was entitled to any further information it could have been secured by a bill of particulars: Com. v. Price, 80 Pa. Superior Ct. 291, 294; Com. v. Powell, 23 Pa. Superior Ct. 370, 373; Com. v. Buccieri, 153 Pa. 535, 547; Com. v. New Beth. Borough, 15 Pa. Superior Ct. 158, 164.

For these reasons we see no merit in the motion in arrest of judgment. '

Motion for a new trial.

This motion was based upon the following reasons:

1. The court erred in refusing to admit the whole record of the case in which the alleged perjury was committed because otherwise the jury could not determine the substance and effect of the defendant’s testimony, and the defendant was deprived of the benefit of any statement he might have made which would have qualified or explained the testimony admitted by the court.

2. The court qualified certain of the defendant’s points.

3. There was no motive shown, and, therefore, binding instructions should have been given.

4. The testimony of the defendant was too doubtful and equivocal to constitute perjury.

We will consider these reasons in their order.

1. The defendant offered the whole record of case No. 152, September Sessions, 1924, in which it was alleged he committed perjury, without pointing to any part of it that would explain the defendant’s answers. He then confined his offer to his own testimony, again without pointing out any part of that testimony which referred especially to the transaction involved in this prosecution or which would throw any light on the testimony that had already been admitted in evidence. The court then said (Notes of Testimony, page 278): “We will admit all of the testimony of George W. Baltosser in the former trial which has any reference whatever or throws any light upon the issues now being tried.” An extensive colloquy then took place, found on pages 272-278 of the testimony. The court then asked counsel for defendant to pick out, for the benefit of the jury, any portions of the record that had any bearing on the issue, which counsel for the Commonwealth agreed should be admitted. Counsel for the defendant replied: “My intention is not to read it to the jury but to select what I want to argue to the jury.” The court thereupon pointed out that if the whole record was admitted counsel might select some part upon which to base an argument which ought not to have been received in evidence. This reference to the record illustrates the inadmissibility of the testimony of Baltosser as a whole. Counsel for the defendant now contends that because the defendant had to meet the substance and effect of the alleged perjured testimony, he had a right to sweep the whole record in search for matter to rebut the charge, and, therefore, the entire volume of his testimony was admissible. He could have engaged in that sweeping process before the record was offered as well as after. It was available to him.

It is never necessary in any criminal case for the prosecution to put in the whole of the defendant’s evidence: 2 Whar. Crim. Law (11th ed.), § 1570. Where one party puts in evidence an utterance of an opponent, the remainder of the utterance may be put in subject to the following qualifications: “(a) No utterance irrelevant to the issue is receivable; (b) no more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable; (o) the remainder thus received necessarily aids in the construction of the utterance as a whole and is not in itself testimony:” 4 Wigmore on Evidence (2nd ed.), § 2113, and notes. So, in a trial for perjury it is not necessary to give the whole testimony of the defendant, but only so much as relates to the fact upon which the perjury is assigned: 30 Cyc., “Perjury,” 1451; 2 Whar. Crim. Law (11th ed.), page 1729; 3 Greenleaf on Evidence (Lewis ed.), page 232.

In Com. v. House, 6 Pa. Superior Ct. 92, 104, it is said by Rice, P. J.:

“Nor, where the Commonwealth desires simply to prove certain admissions of a defendant made upon a former trial, is it necessary to put in evidence his whole testimony; but if anything is omitted which may tend to explain or qualify those admissions, the defendant may call it out upon cross-examination.”

In Com. v. Shooshanian, 210 Mass. 123, 98 N. E. Repr. 70, it is held that it is proper for the court to reject evidence offered as a whole, where part of it is admissible. While the early English cases held that the whole of a defendant’s testimony on the former trial should be proven (Rex v. Jones, Peake N. P., ed. 1795, 37), it now seems to be generally held necessary to prove only so much of the testimony as relates to the particular fact on which the perjury is assigned, allowing to the defendant proof of other parts of the testimony in which his statements are explained or qualified: United States v. Erskine, 4 Cranch. C. Ct. 299, 25 Fed. Cas., No. 15057; Dodge v. State, 24 N. J. L. 455; Warren v. Nichols, 6 Met. (Mass.), 261, 267; Hutcherson v. State, 33 Tex. Crim. 67, 24 S. W. Repr. 908; Beach v. State, 32 Tex. Crim. 240, 22 S. W. Repr. 976; Taylor v. State, 48 Ala. 157.

2. It is contended that the court erred in qualifying defendant’s first, second, third, fourth, fifth and seventh points. These points asked us to say that if the defendant believed the signature denied was forged, or if he qualified his answers because that was his belief at the time, the defendant could not be convicted, particularly if his belief was based upon what appeared to him to be probable cause. These points were all qualified so as to charge the jury that if his belief, or what he regarded as probable cause, was based upon reasonable grounds, he could not be convicted. It is only necessary to refer to Com. v. Shields, 50 Pa. Superior Ct. 1, 15, to justify the answers to the points. In that case it is said:

“But it is going too far to say that his mere belief of the correctness of his account, no matter how unfounded or how recklessly formed, will excuse him from the consequences of wilfully swearing falsely. In the case of such an oath, taken under such circumstances as we have alluded to, it was proper and not irrelevant, under the evidence adduced at the trial, to qualify the point by calling the jury’s attention to the principle enunciated and applied in Com. v. Cornish, 6 Binn. 249, that a person swearing wilfully and deliberately to a thing which he rashly believes, but has no probable cause for believing, and which is in fact false, may be guilty of perjury. In no later Pennsylvania decision of authority that has come to our notice has this principle been disputed, and in at least two cases it was distinctly recognized by the Supreme Court: Steinman v. McWilliams, 6 Pa. 170, 178; Brooks v. Olmstead, 17 Pa. 24, 29. See, also, 3 Greenleaf’s Ev. (15th ed.), § 200.”

The fifth point was qualified by making it stronger for the defendant, and, therefore, the defendant cannot complain.

3. It is contended that the court should have given binding instructions because no corrupt motive was shown. The defendant Baltosser had charged Luther G. Smith with forgery and with uttering a forged instrument. The defendant Smith, in his trials, offered what were presumed to be admittedly genuine signatures of Baltosser as standards, for the purpose of showing that Baltosser signed the note that he charged Smith with forging. Baltosser in ae least nine cases either denied or refused to admit his signature in the writings supposed to be standards. If the writings could not be established as standards, they were useless for comparison. So Baltosser was tried on the indictment now being considered, as well as eight others, for perjury in connection with the testimony as to those supposed standards. It needs no further discussion to show that there may have been a motive for the jury to consider. If Baltosser by his testimony could destroy the writings as standards, they would be useless for comparison, and, therefore, Smith’s testimony that Baltosser signed the note might be unsupported.

4. It is contended that the defendant’s testimony with reference to the writing was hesitating, doubtful and equivocal; not sufficiently absolute or positive upon which an action of perjury could be based, and that the court erred in submitting the case to the jury. The perjury charged is a denial of defendant’s signature to the assignment of policy No. 7589746 of the New York Life Insurance Company to the Brotherhood Relief and Compensation Fund as collateral security for the loan obtained by defendant from the latter organization. This assignment is Commonwealth’s Exhibit No. 9 in this case and defendant’s Exhibit No. 3 in the case in which the alleged perjury was committed. There was also an assignment of a policy, on a somewhat different form, made for the same purpose, involved in case No. 126, January Sessions, 1928, in which the defendant was also convicted of perjury. The cases were tried together. That assignment is Commonwealth’s Exhibit No. 10 in the present record and defendant’s Exhibit No. 4 in the case in which the alleged perjury was committed. The assignment involved in the instant case purports to be acknowledged before George D. Herbert, alderman, who testified (Notes of Testimony, pages 143, 144) that Baltosser came to his office, Aug. 13, 1921, for the purpose of acknowledging this assignment with the paper already signed; that the alderman said: “Is that your signature?” to which Baltosser replied, “It is,” and “then he was sworn and the paper was acknowledged.”

Clarence E. McCaslin, agent for the New York Life Insurance Company, testified (Notes of Testimony, page 352) that there were no forms used by that company other than the two forms, Exhibits 9 and 10, and that there was a duplicate of each signed, four in all. The record of the trial in which the perjury is alleged shows (Notes of Testimony, page 91, of the instant case) that Baltosser was shown the assignment of policy No. 7589746 and asked whether that was his signature. He replied: “Well, I assigned the one New York Life transfer; that is not the number. The number is 8193991. ... I will say that I didn’t sign that particular one. . . . Well, it looks like as if it was my signature, but I didn’t put it there; I have no recollection of signing it.” (Notes of Testimony, page 91.) “I told you there was an assignment made and I carried it with me, but not on that kind of a form; I don’t believe so; I can’t go back that far and give you the correct answer. . . .” (Notes of Testimony, page 100): “The form which I signed in the office has not been shown to me here that I signed for the transfer. . . .” (Notes of Testimony, page 102) : When the same assignment was called to his attention (Notes of Testimony, page 198), he said: “I transferred the policy, the first policy, in 1921, prior to July 29th,... for the protection of the loan that was gotten from the Brotherhood Relief and Compensation Fund,” and when asked whether he recognized the paper, said (Notes of Testimony, page 199): “No, it don’t look like the form that I signed,” and (Notes of Testimony, page 234) : “I only signed one form for each policy. ... I signed a form for the transfer of 75586746; that is the first policy I signed a form; I transferred them all right; I am not denying that at all, but I am denying this kind of a form.” When asked concerning the assignment of policy No. 8193991, Exhibit No. 10, he said (Notes of Testimony, page 97) : “I have not any recollection of signing that piece of paper. ... I will not say that that is the piece of paper; I made an assignment, but I won’t say that is the piece of paper.” And when asked (Notes of Testimony, page 306) with reference to the assignment taken before Alderman Landis, he said: “That is the only one I transferred; that is the only one.”

These excerpts show that some of the defendant’s testimony was equivocal, some of it positive. He gave as his reason for not being positive that there were several persons in the office of the Brotherhood Relief and Compensation Fund who could imitate his signature so that he himself could not tell whether he had made it. The court submitted to the jury to determine whether, in view of all the testimony, these statements were positive denials of his signature to the paper in question. We are convinced this was not error.

Blaekstone says that it is perjury where one swears wilfully, absolutely and falsely. There have been many decisions construing what comes within that definition. Where one swears to a fact which he knows is not true, it is, of course, perjury, but the offense is also made out where he swears positively to a fact of which he has no knowledge: Com. v. Miles, 140 Ky. 577, 579, 131 S. W. Repr. 385; People v. McKinney (N. Y.), 3 Park Crim. Rep. 510; State v. Gates, 17 N. H. 373; State v. Knox, 61 N. C. 312. It is also perjury where one swears to a belief which the witness knows does not exist: People v. Phillips, 205 Pac. Repr. 40, 56 Calif. App. 291; Byrnes v. Byrnes, 5 N. E. Repr. 776, 102 N. Y. 4.

The defendant says some of his statements were not absolute, because he did not remember whether he signed the particular form. It has been held to be perjury where one swears that he does not remember certain material facts when in truth they are within his knowledge and recollection: People v. Doody, 172 N. Y. 165, 64 N. E. Repr. 807, 808; People v. Redmond, 178 N. Y. Supp. 120, 124.

Whatever may be the law in other jurisdictions, it is settled in Pennsylvania that one may be guilty of perjury who swears rashly in a matter of which he will not take the pains to inform himself and of which he has no probable cause for belief, although the facts may turn out to be true: Com. v. Cornish, 6 Binn. 249. In the case just cited Brackenridge, J., said: “It is the same thing to me, whether it was his weakness or actual malice and wickedness, that led him to take the oath. It interests the public that rash and unadvised swearing a crime upon another should be restrained.” While the case just cited has been criticised in United States v. Shellmire, 27 Fed. Cas., Case No. 16271, yet it has been followed in Steinman v. McWilliams, 6 Pa. 170, 178; Brooks v. Olmstead, 17 Pa. 24, 29; Page v. Allen, 58 Pa. 338, 352, and in Com. v. Shields, 50 Pa. Superior Ct. 1, 15.

In view of these authorities, we are convinced that the question as to whether or not the defendant swore wilfully, absolutely and falsely was one for the jury to determine. The papers upon which the perjury is based were not sprung upon the defendant. He had them presented to him in a trial in this court held a year and a half before the trial in which the perjury is charged. He had every opportunity for careful consideration and examination. The alderman swore that he said he had signed the paper before his acknowledgment was taken, and the acknowledgment and the alderman’s signature appeared on the face of the paper. He denied his signature because, he said, it was not in the form which he had signed (and this was true as to the form of both assignments), but the agent of the insurance company said there were no other forms of assignments used by the New York Life Insurance Company. He gave as a reason for his refusal to positively identify his signature that there were persons in the office of the Brotherhood Relief and Compensation Fund who imitate it, but he did not stop with the statement that he did not remember whether he had signed the paper in question. He positively stated that “this is not the number; the number is 8193991; I will say that I did not sign that particular one; it looks as if it was my signature, but I did not put it there.” Under all the testimony, the court could not say as a matter of law that his statements were not absolute or that they were so equivocal as not to amount to perjury. In our opinion, the question was clearly one for the jury. Perjury must be made out by the testimony of two witnesses or one witness and corroborating circumstances: Com. v. Bobanic, 62 Pa. Superior Ct. 40. In this case there is the testimony of two witnesses and corroborating circumstances.

For the reasons heretofore given, the motion in arrest of judgment and the motion for a new trial must be overruled.

Now, March 26, 1930, the motion in arrest of judgment and the motion for a new trial are each hereby overruled and the district attorney is directed to move for judgment on the verdict.

From Homer L. Kreider, Harrisburg, Pa.