author: McConnel, J.,

text:
    Gibney v. Equitable Life Assurance Society of United States.

      A. G. Kelbling and L. M. Sebring, for plaintiff.

      McCook & Jarrett, Carl W. Warmcastle and Moorhead & Marshall, for defendant.
    April 11, 1929.
   McConnel, J.,

— The plaintiff, Ida C. Gibney, brought an action in assumpsit against the defendant on account of a policy of group insurance issued by the Equitable Life Assurance Society of the United States to the Union Drawn Steel Company of Beaver Falls, Pa., claiming that her husband, Thomas Gibney, had died while he was in the employ of the Union Drawn Steel Company, and that she, being his beneficiary, was entitled to the amount of his life insurance. The trial of this case resulted in a verdict for the plaintiff. The defendant has made a motion for judgment n. o. v. and also for a new trial.

The evidence showed that on Dec. 20, 1920, the defendant had issued a group policy to the Union Drawn Steel Company which provided for insurance upon the lives of such employees of the Union Drawn Steel Company as are enumerated in the record known as the Insurance Register of said employer, kept by the society in the amounts recorded therein for their respective names, for the term of one year from the register date thereof, or for such part of said term as they should respectively remain in the employment of the employer. The contract of insurance also contained, among others, the following provisions :

TRAVEL, RESIDENCE AND OCCUPATION.

There are no restrictions under this contract on travel, residence or occupation except that military or naval service in any capacity in time of war by any employee insured hereunder is a risk not assumed by the Society, unless the Employer retains the employee engaging in such service upon the payroll or roster of employees for active work upon termination of the service, and pays to the Society during the continuance of the service the premiums for the insurance on the life of such employee and such extra premium or premiums as may be fixed by the Society, and unless notice that the employee has entered upon military or naval service shall be given to the Society in writing within thirty-one days after the employee enters upon such service.

PREMIUMS.

This insurance is granted in consideration of the payment to the Society on the First day of each month of the average rate per thousand dollars of insurance in force under this contract according to the scale of premium rates given below on the basis of the attained ages (nearest birthday at the register date) of employees insured and the respective amounts of insurance on their lives.

SPECIAL PROVISIONS.

1. The insurance upon the life of any employee covered by this contract shall continue only so long as such person remains in the employment of the Employer. All liability and obligation of the Society with respect to any such employee shall cease and determine immediately upon the termination of such person’s employment with the Employer, without regard to the cause of such termination, except that temporary leave of absence on military or naval service as set forth in the clause: ‘‘Travel, Residence and Occupation” on the second page of this eontract, or total disability under the conditions named below, shall not constitute termination of employment within the meaning of this clause.

5. The Society will issue to the Employer for delivery to the employee whose life is insured under this policy, an individual certificate setting forth a statement as to the insurance protection to which such employee is entitled under the terms hereof, and to whom it is payable, together with a provision to the effect that in case of the termination of the employment for any reason whatsoever the employee shall be entitled to have issued to him by the Society, without further evidence of insurability and upon application made to the Society within thirty-one days after such termination and upon the payment of the premium applicable to the class of risk to which he belongs and to the form and amount of the' policy at his then attained age, a policy of life insurance in any one of the forms customarily issued by the Society, except term insurance, in an amount equal to the amount of his protection under this policy at the' time of such termination.

6. Upon termination of employment as shown by the Employer’s records, the insurance upon the life of any employee terminates automatically, unless continued under the individual conversion option. For purposes of insurance, re-employment will be classed as new employment and will be subject to all the requirements thereof and the issuance of a new certificate.

In accordance with the provisions of this policy of insurance, the defendant issued to Thomas Gibney an individual life certificate on Nov. 6, 1924, and this certificate contained the following provisions:

The Equitable Life Assurance Society of the United States

Individual Certificate No. 0755 (Life) 1808.

hereby certifies that the Union Drawn Steel Company, Beaver Falls, Ba. (hereinafter called the Employer), has contracted to insure the life of Thomas Gibney (hereinafter called the employee) for the sum of $750 with the Equitable Life Assurance Society of the United States by a policy of Group Life Insurance. The insurance is to be payable as follows: $150 for funeral expenses and the remainder in twelve equal monthly payments, commencing upon the receipt of due proof of death, to the beneficiary designated as entitled to receive the same, if death occur while in the employment of the said Employer and while insured under said policy, subject to the terms and conditions thereof.

Beneficiary: Ida C. Gibney — Wife.

Termination and Conversion: The insurance of any Employee shall automatically cease and determine upon termination of employment with the Employer in the specified classes of employees; but in case of such termination of employment for any reason whatsoever while insured, the Employee shall be entitled to have issued to him by the Equitable without further evidence of insurability upon application made to the Equitable within thirty-one days after such termination and upon the payment of the premium applicable to the class of risk to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance, in any one of the forms customarily issued by the Equitable, except term insurance, in an amount equal to the amount of his protection under such Group Insurance policy at the time of such termination. For purposes of insurance, re-employment will be classed as new employment.

Thomas Gibney was employed by and worked for the Union Drawn Steel Company at various times and for various periods prior to Feb. 22, 1926, and died March 14, 1926. The plaintiff contended that at the time of his death he was still in the employment of the Union Drawn Steel Company, and that his beneficiary was entitled to the payment of the amount of his insurance, which had been increased from $750 to $850 before Feb. 22, 1926. The defendant contended that at the time of Thomas Gibney’s death he was not in the employment of the Union Drawn Steel Company, and, therefore, under the terms of the policy of insurance, his beneficiary was not entitled to anything.

The evidence on the part of the plaintiff as to his working or being in the employment of the Union Drawn Steel Company was that Thomas Gibney had been in the employ of the company for about a year before Feb. 22, 1926, and that he was still in the employment of the company at that time, but it also showed that on that date he was laid off by his foreman, and he was told that he was laid off owing to a depression in the business of the Union Drawn Steel Company, and he was also told that no one could tell how long he would be laid off. After he was laid off, he was told by his foreman that when they needed him again he would be notified when to come back to work. After Feb. 22, 1926, he called at the office of the Union Drawn Steel Company several times and was told that they had no need of him yet and could not give him a definite answer as to when he would be taken back to work, and that whenever they would need him, he would be notified and re-employed. It was also shown that on Feb. 22nd, at the time Mr. Gibney was laid off, a part of the works of the Union Drawn Steel Company in which he had been employed had been discontinued, and after that time that part of the plant had been dismantled and the same kind of work at which he had been employed had not been resumed by the Union Drawn Steel Company at the time of his death, and the only relationship existing between him and the Union Drawn Steel Company, at the time of his death, was that he had been notified by his foreman that he would be re-employed as soon as they had any work for him to do.

The plaintiff did not introduce the employment record of the Union Drawn Steel Company with regard to Thomas Gibney, but on the part of the defendant these employment records were introduced and admitted in evidence. These records consisted of an employment record which is printed on page 50 of the evidence. This showed that Thomas Gibney had been employed as a helper and a fireman from Feb. 24, 1925, at the rate of 45 cents per hour, and afterward at 49 cents per hour. It was shown that he was paid every two weeks according to the number of hours he worked, and his employment record showed that he was laid off Feb. 22, 1926. There was also offered in evidence, by the defendant, exhibit “D,” which was known as Thomas Gibney’s leaving card. It had on it the following: “Left our employment on 2/22/26. Would you re-employ? Yes. Did employee give notice of leaving? Laid off. Laid off — account no work.” .His time card was also offered in evidence, and admitted, which showed that during the month of February he had only worked on Feb. 22nd for ten hours and was then laid off.

Other evidence introduced on the part of the defendant showed that Thomas Gibney was not discharged' permanently, but was only laid off temporarily, and that meant that the employee was subject to call at any time and would be re-employed if they had any work for him to do.

The evidence, then, for both the plaintiff and defendant in this case showed that on Feb. 22, 1926, Thomas Gibney had been laid off and had not been told to come back to work and had not come back to work for the Union Drawn Steel Company at any time between Feb. 22, 1926, and the date of his death, and the question was whether, at the time of his death, he could be still considered, under the terms of this insurance policy, in the employ of the Union Drawn Steel Company and still entitled to insurance. As it was, so far as we could see, a new question, out of an abundance of caution, we allowed the case to go to the jury on the sole question of whether Thomas Gibney was still in the employ of the Union Drawn Steel Company at the time of his death. The verdict of the jury determined that he was still in the employ of the company; but we. must determine, under this motion, whether there was really any evidence produced in the case under which we could have submitted that question to the jury, and whether there was any evidence produced which would sustain the verdict.

Thomas Gibney was only a day laborer, paid at an hourly rate and paid every two weeks. Of course, the insurance policy involved in this case, like the ordinary contract of insurance, is to be reasonably construed so as to accomplish the purposes which the parties to the policy had in view at the time the contract was made; but at the same time, as said by Mr. Justice Kephart, in delivering the opinion of the .court in the case of Levinton v. Ohio Farmers Insurance Co., 267 Pa. 448 (page 451) : “Recovery can be had only when the loss is brought fairly within the terms of the contract or by reasonable intendment covered by it. If doubt exists as to the meaning, it should be resolved in favor of the assured rather than in the interests of the insurer.”

Ordinarily, also, the construction of the insurance policy is for the court. •That is, it is for the court to determine what a policy of insurance, like any other written contract, means. The burden was upon the plaintiff to prove by a fair preponderance of the evidence that Thomas Gibney, at the time of his death, was in the employ of the Union Drawn Steel Company and entitled to insurance under the policy in question.

There are many questions which might be raised and considered by the court under the insurance policy in question as to what ordinarily constitutes employment; whether the employee is entitled to protection on this insurance policy in case the factory in which he works, or any department thereof, ceases to operate on account of a stoppage for repairs; and whether the only proof of the employment of Thomas Gibney was the record of the Union Drawn Steel Company, and whether the employee could dispute these records and show that as a matter of fact he was in the employ of the company, although the records of his employer showed that he was not in their employ. These questions we do not undertake to pass upon in this case, and all we undertake to determine is whether, at the time of the death of Thomas Gibney, he was still, under the evidence in this case, in the employ of the Union Drawn Steel Company.

As we see it, the policy of insurance in this case is different from an ordinary life policy, and is also different from workmen’s compensation, and it occupies a position midway between the two. Under the Workmen’s Compensation Act, an employee, in order to be entitled to compensation, must ordinarily be engaged in some work which is in furtherance of the business of the employer; but under the policy in question in this case, we do not think that is necessary at all. He would be certainly entitled to insurance under the terms of this policy as long as the relationship of master and servant or employer or employee existed, and that condition would exist during the time from evening to morning; from Saturday to Monday, or during any other reasonable period when he might be still considered in the employment of his employer, even though he was not at that time actually laboring for his employer. But in order to constitute an employment there must be some sort of a contract existing at the time of the employee’s death on the part of the employer to hire the workman and on the part of the employee to perform services for his employer as they should be required.

The evidence, as we have said, clearly establishes the fact that on Feb. 22, 1926, Thomas Gibney was laid off by the Union Drawn Steel Company, and, according to Webster’s Dictionary, laid off means: “To cease work; to cease to operate or employ, especially to cease to employ or discharge a workman, often temporarily.” In the Century Dictionary laid off is defined: “To dismiss as a workman, usually temporarily.” Usually, when a man is laid off, as we understand the term, he is no longer in the employ of his employer and can,- if he chooses, work for some other person, but may be recalled by his employer at any time, and if the workman chooses he can return to his employer or can refuse to do so. It is, of course, different from discharge, but, nevertheless, it is a temporary discharge, and, as we see it, constitutes a cessation, temporarily, of employment.

The policy of insurance in this case contains a rider dated July 3, 1924, under which it is agreed between the insurance company and the Union Drawn Steel Company that the policy of insurance is extended to cover the lives of the employees of the Union Drawn Steel Company who may be pensioned or retired. This was evidently attached to the policy so that there could not be any question raised as to its meaning in this respect, and that indicates that the pay-roll kept by the Union Drawn Steel Company was not considered by the parties as determining absolutely who would be entitled to insurance under the terms of it, because, even if the parties were pensioned or retired,, they would still be on the rolls of the Union Drawn Steel Company and entitled to periodical payments from them.

If there was any doubt under the evidence as to whether Thomas Gibney was or was not laid off on Feb. 22, 1926, this would, in our opinion, have been a question for the jury to pass upon; but as the sole matter before the court, under the evidence, was the meaning of “laid off,” we believe that the question was for the court and not for the jury.

The group insurance policies issued by insurance companies to corporations are comparatively a new thing and we have only been able to find one ease in this State where the group insurance policy was even considered, and that is a case decided by Judge Hargest and reported in Stoner v. Equitable Life Assurance Society of the United States, 28 Dauphin Co. Reps. 235. In that case, a group insurance policy was issued by the Equitable Life Assurance Society to a manufacturing corporation operating a plant in Harrisburg. Under this policy a certificate was issued to Franklin A. Stoner, who named the plaintiff in that case as beneficiary. On March 28, 1924, the hot mills of that plant were closed down and the employees were notified that the plant would not resume operations during the month of April and that the company was unable to announce a definite date of resumption, but the workmen were assured that the mill would be started in operation as soon as trade conditions would justify such action. The hot mills never did resume, but Franklin A. Stoner, being in the shipping department, continued work until April 12, 1924. At that time the manufacturing company notified the Equitable Life Assurance Society to terminate the insurance as to a number of employees, including Franklin A. Stoner, as of April 12, 1924. Franklin A. Stoner died June 25, 1924. It was claimed by the plaintiff that the employee was still in the employ of the manufacturing company at the time of his death because his death had occurred within a reasonable time after the plant had shut down indefinitely; and also that the policy of insurance could not be terminated without notice to the insured, that is, Franklin A. Stoner. These points were both decided against the plaintiff, and so far as the matter of employment was concerned, Judge Hargest said (28 Dauphin Co. Reps. 235, page 240) : “Nor do we think the evidence was sufficient to support the finding of the jury that Stoner continued in the employment of the company up to the time of his death. Stoner was employed by the company upon an hourly basis and paid every two weeks. He was notified that the plant would indefinitely suspend operations on March 29, 1924. By reason of his employment in the shipping department, he was continued until April 12, 1924, and thereafter was not employed. This policy was in force ‘only so long as such person remains in the employment of the employer.’ One paid upon an hourly basis cannot be said to be in the employment of his employer so as to keep alive a policy of this character, where the plant has been shut down indefinitely and ceased operations for a period of more than a month and a half.”

While, of course, we are not bound by this decision of Judge Hargest, we are satisfied that he correctly decided that case, and we are also satisfied that in the present case when Thomas Gibney was laid off he was temporarily discharged and no longer in the employment of the Union Drawn Steel Company and, therefore, his beneficiary was not entitled to recover against the defendant. We have found a number of cases where group insurance policies were involved and considered and interpreted in jurisdictions outside of the State of Pennsylvania, but we have found none which, in our opinion, bear, even remotely, upon the questions involved in this case.

So far as the motion made by the defendant for a new trial is concerned, we do not feel that it is necessary, under the disposition which we make of the case, to consider the questions so raised by the defendant.

Order.

Now, April 11, 1929, judgment is hereby directed to be entered for the defendant, the Equitable Life Assurance Society of the United States, and against the plaintiff, Ida C. Gibney, notwithstanding the verdict. The motion for a new trial is also hereby overruled.

From William F. Schutte, Beaver Falls, Pa.


source: Caselaw Access Project

author: Chambers, J.,

license: Public Domain

text:
    First National Bank of New Wilmington v. Kuhn et ux.

      William McElwee, Jr., for plaintiff.

      Clarence A. Patterson and Homer C. Drake, for petitioners.
    Sept. 3, 1929.
   Chambers, J.,

— The plaintiff in this case issued a scire facias sur mortgage against defendants and obtained judgment thereon, upon which execution was issued. After the obtaining of the judgment and before execution was issued, the defendants made an assignment for the benefit of creditors under the Insolvency Act of June 4, 1901, P. L. 404. The execution, however, was issued before the assignees had filed their bonds and qualified to act as such assignees. After being qualified, the assignees presented a petition asking that the writ of execution be stayed and that the real estate levied upon be turned over to the assignees to be managed, controlled and sold by them for the benefit of the creditors of the defendants. A rule was issued upon the plaintiff, and in reply to said rule the plaintiff contends that the defendants are not such persons as are exempted from the operation of the Federal Bankruptcy Act of July 1, 1898, 30 Stat. at L. 544, and, hence, as to them, the Insolvency Act of this Commonwealth is suspended and inoperative; and, further, that the property levied upon is encumbered by liens to a greater amount than the value of the property, and for that reason it would be inexpedient to turn over the lands subject to the levy to the assignees. The assignees filed a reply, contending that Harry V. Kuhn is a wage-earner within the meaning of the Federal Bankruptcy Act, and denying that it would be inexpedient for the assignees to sell the real estate levied upon.

On the issue as presented, testimony was taken, and from such testimony it appears that, prior to 1925, Harry V. Kuhn had been engaged in operating bus lines; that he disposed of the bus lines and erected in the Borough of New Wilmington a garage, restaurant, with an apartment above, and a shoe repairing room, these all being erected on the same lot. He himself operated the garage until the year 1925, when his health failed him, and he leased the property and sold out the business. For a period of about a year he was unable to do any work, but since that time has been working as a laborer and receiving wages totaling less than $1500 per year. In addition to the property described, a residence property in the Borough of New Wilmington is owned by Maude E. Kuhn, the other defendant, and was embraced in the mortgage of the plaintiff. The total rents received from the business property when it is all occupied amount to $207 per month, and it appears that since the leasing thereof in 1925 it has been for the most part rented, and at the date of hearing all the property was occupied and rents being received with the exception of the shoe shop, the rent of which has been $15 per month.

It is conceded that if the defendants are not exempted from the operation of the Federal Bankruptcy Act, the Insolvency Act of this Commonwealth, approved June 4, 1901, is suspended and inoperative, and that the assignees are without authority in the premises. This has been so well established that it is unnecessary to cite authority on this proposition. It, therefore, becomes our duty to determine whether or not Harry V. Kuhn is a wage-earner within the meaning of the Federal Bankruptcy Act. A wage-earner is 'defined by the Bankruptcy Act as one “who works for wages, salary, or hire, at a rate of compensation not exceeding $1500.”

If we go no further than the words of the statute, it would appear as though Harry V. Kuhn were such a wage-earner. From the testimony it appeared without contradiction that Harry V. Kuhn quit business on account of ill-health; that for a period of two or three years he Has not undertaken to engage in any line of business, but has been a bona, fide worker at wages, and that at no time during this period has he earned by his labor in excess of $1500 per year. It does appear, however, also uncontradicted, that during this same period he has been receiving as rents from his business property sums in excess of $2000 per year. Does this make any difference in his status? The exact question before us, as far as we are able to determine, does not seem to have been passed upon. However, there are decisions which have a bearing upon the question and which we will discuss somewhat. In the First National Bank of Wilkes-Barre v. Barnum, 160 Fed. Repr. 245, Judge Arch-bald, then District Judge, in a consideration of the language of the act, says: “A wage-earner is defined by the Bankruptcy Act as one ‘who works for wages, salary, or hire, at a rate of compensation not exceeding one thousand five hundred dollars per year.’ By this it is evidently intended to relieve from adverse proceedings those who, not being engaged in business or trade, depend for a living upon the result of individual labor or effort without the aid of property or capital.”

We note that here it is suggested that the wages or salary must be the main source of income upon which the person depends for his living. In re Naroma Chocolate Co. et al., 178 Fed. Repr. 383, it is held: “A person who is engaged in a manufacturing or trading business does not come within the ordinary usage of the term wage-earner merely because, while engaged as a manufacturer or trader, he may earn wages by working for another in a different occupation, nor, if debts are contracted by a bankrupt while engaged in the occupation of a manufacturer or trader, is he exempted from involuntary proceedings because he subsequently becomes a wage-earner.”

In re Wakefield, 182 Fed. Repr. 247, it is held: “Where an alleged bankrupt had engaged in a mercantile business in which he had contracted debts and thereafter acquired property by inheritance, worth $40,000, which he immediately assigned to his brother for $180, and during the year the assignment was made received wages for his services exceeding $1500 per annum, he was not a ‘wage-earner,’ exempt from bankruptcy adjudication, under the provision of the bankruptcy act authorizing an adjudication against any natural person, except a wage-earner, defined to be an individual working for wages at a rate not exceeding $1500 per year.”

There are two cases, however, which are closer to the facts of our ease than any others. They are the case of Carpenter v. Cudd et al., 174 Fed. Repr. 603, 23 Am. Bank. Reps. 463, and the case of First National Bank of Bode v. Williams, 13 Am. Bank. Reps. (N. S.) 719. In the case of Carpenter v. Cudd et al., Carpenter had been operating a mercantile establishment. A year before the bankruptcy proceeding was instituted, he incorporated this business for $25,000, of which he retained $17,600 in stock and sold stock for the balance. He became president of the company at a salary fixed at $900 per year, but» in addition to this sum, although there were no dividends, he drew about $2000 from the business during the year. It also appears that he had other property and business from which he received returns. In commenting upon this situation, the court says:

“It is contended by the appellants that, inasmuch as the bankrupt was the president of the W. C. Carpenter Company, and as such was paid a salary of $900 per year, he was a wage-earner under the definition cited above. But every individual who is paid a salary of less than $1500 is not, therefore, necessarily a wage-earner in the meaning of the law. A person extensively engaged in some mercantile or manufacturing business might at the same time incidentally earn a salary less than $1500 per year in some collateral employment; or the individual owner of a large business might incorporate it, and being entitled, as a holder of a great majority of the stock, to practically all of the dividends earned, might prefer that his salary as president and head of the business should be placed at a nominal figure or at a figure less than $1500 per year, and much less than he would expect to draw for his service in the management of the business. Manifestly, Congress did not intend to exempt such persons as these from the operation of the law.

“In the case at bar, Carpenter was nominally drawing only $900 salary per year, but he owned two-thirds of the stock of the corporation and had such control over its affairs that he actually drew more than $2000 additional during the year preceding the institution of bankruptcy proceedings. His own testimony justifies the conclusion that he was also in the business of buying and selling real estate. He estimated the value of his holdings outside of the W. C. Carpenter Company to be Worth nearly $90,000. Under these circumstances, he cannot be held to be a wage-earner in the sense of the statute, and the decision of the court upon the evidence offered upon this point was correct.”

In the case of the First National Bank of Bode v. Williams, supra, it appears that Williams owned one-half interest in an estate consisting of a farm of 240 acres and two lots in the town of Bode, Iowa. He had been a farmer for thirty or forty years. In January, 1925, he removed from a farm to the lots in Bode, where he built an oil-filling station. He conducted this until Feb. 1, 1927, then leased it, thereafter collecting the rents until Dec. 3, 1927. About March 1, 1927, he bought a stallion valued at $150; kept him until July 3, 1927; sold him for $90. After that he worked for wages and was so employed at the time the bankruptcy proceedings were instituted. It was held in this case that Williams was a wage-earner within the meaning of the Federal Bankruptcy Act. In this latter case it does not appear what amount of rents were received from this oil station. So that while both these cases have some similarity to the ease before us, yet they have their distinguishing features. In Carpenter v. Cudd et al., while the salary was only $900 per year, yet Carpenter was drawing from the same business an additional $2000 per year. On the other hand, in the Williams case, while it appears that Williams was a bona fide wage-earner of less than $1500 a year, it does not appear just what amount of rents he was receiving from his oil station. This may have been an inconsiderable amount.

In the ease at bar we have one who is receiving from a business property which he had formerly occupied himself, and in the conduct of which business he had largely contracted the debts now owed by him, rents in excess of $2000 a year and largely in excess of the money received by him as wages. It is true that Kuhn, on the witness-stand, testified that he depended upon his wages for his living; that he used the rents from his buildings to pay taxes, interest, insurance, etc., but that his living expenses came out of his wages as a laborer. However, we cannot lose sight of the fact that, had he not had this income from his property, he would not have had his wages to apply to his living. His taxes, interest, insurance, etc., were obligations which he was bound to meet or lose his property. If he had no rents coming in to pay these then he must necessarily have used his wages for this purpose or lost his property. Can he then say that he was living on his wages, while he was receiving in the way of rents a much larger sum of money, which was being expended for his benefit? While we are not without hesitation in the matter, the weight of authority seems to us to indicate that, in order to be exempt, the wage-earner must be dependent upon his wages for his living, and that where his income from other sources is largely in excess of that which he received as wages, salary, or hire, he does not come within the exempted class. Having reached this conclusion, it is unnecessary for us to consider the second question raised, and we, therefore, make the following

Order. — Now, Sept. 3, 1929, the rule issued Aug. 10, 1929, is discharged and the sheriff is directed to proceed with the execution of the writ.


author: Mays, J.,

text:
    Commonwealth ex rel. Yeakley v. Boyer.

      Luther C. Schmehl, Assistant District Attorney, for Commonwealth.

      M. Bernard Hoffman, for defendant.
    May 10, 1929.
   Mays, J.,

— It appearing to the court that the application for the writ in this case is on the part of the reputed father of this child, we are of the opinion that, as against strangers or relatives other than the mother of the child, because of what affection he may have for the child, he would be in a position to press his claim;' but as against the mother of the child, this court does not feel that the prayer of the petition should be granted. The mere fact that she is the daughter of a shoemaker, that her mother and father have upwards of ten more children and are poor, is in itself not sufficient at this time for this court to say that this mother should be denied the right to have the custody of this child — particularly in view of the fact that this man when he had connection with this girl and begot this child knew of this condition and knew of the poverty of these people, and that he himself is not so blameless that he can set up the unfortunate condition of this mother. If her mental condition is not what it should be, he should have known it; he should not have consorted with her. And what is more, if the welfare of this community, the welfare of this mother and the welfare of this child require another disposition, application can be made to this court by the proper authorities.

The writ is dismissed.

From Charles K. Derr, Beading, Pa.


author: Potter, P. J.,

text:
    Rothrock v. Wolfe.

      Cloyd Steininger and Hon. H. W. Cummings, for plaintiff.

      Andrew A. Leiser, for defendant.
    Sept. 16, 1929.
   Potter, P. J.,

We had this case before us once before on the sufficiency of the statement. Another one was filed, which is apparently regarded as sufficient, inasmuch as an affidavit of defense to the merits of the case was filed, in which the defendant sets up a counter-claim in the sum of $1495. It may be observed at this juncture that the plaintiff claims from the defendant the sum of $484, with interest from Sept. 1, 1924, for medical services rendered to the wife of the defendant, which is fully itemized and set out in the statement. The plaintiff is a physician and rendered professional services to the wife of the defendant incident to blood-poison contracted in her finger, consisting of professional visits, medicines, amputation of her hand and care incident to it.

The defendant in his counter-claim sets up items for nursing and nurse hire, surgeon’s compensation amounting to $495, to which is added an item of $1000 for loss of the services of his wife. The plaintiff sets up that the amount set up in the counter-claim and the counter-claim itself can be sued for only in an action of trespass, and, therefore, cannot be allowed as a counter-claim in an action of assumpsit, and that it is barred by the Statute of Limitations, and these are the two questions now before us.

Section 14 of the Practice Act of May 14, 1915, P. L. 483, 485, provides that “In actions of assumpsit a defendant may set off, or set up by way of counterclaim against the claim of the plaintiff, any right or claim for which an action of assumpsit would lie. . . .” So that the test is, could the defendant bring an action of assumpsit against the plaintiff for the items and the amount set out in his counter-claim? In our judgment, he could not. He sets up that the plaintiff is liable to him “for expenditures necessitated by, and damages resulting from, said plaintiff’s ignorant, unskillful, negligent and incompetent treatment of his wife, Sarah A. Wolfe.” This language itself indicates trespass for a tort, a claim which cannot be set up as a counter-claim in an action of assumpsit: Frey v. Lehigh Valley Shoe Co., 4 D. & C. 735; Hallowell v. Kimink, 2 D. & C. 145; Snell v. Nickles, 1 D. & C. 487; Backer v. Remov, 69 Pa. Superior Ct. 138; Kelly v. Miller, 249 Pa. 314; New York, Susquehanna & Western R. R. Co. v. Ruthven, 88 Pa. Superior Ct. 501. And in an action of trespass, no set-off or counter-claim will be allowed: Shrum v. Carcase, 2 D. & C. 686. Much less can it be allowed when sounding in tort in an action of assumpsit. The defendant’s counter-claim sets up professional ignorance, malpractice, unskillfulness, negligence, incompetency and the like, which form the basis of his claim. These qualities thus complained of surely do not arise from or rest upon any form of a contract. If it should be determined that the plaintiff was competent, that he was faithful in professional attendance upon the defendant’s wife and that he performed his duty towards her well and properly, then the sums set up in the counter-claim for nursing and physician’s compensation could not be regarded at all, and no obligation for payment or evidence of indebtedness would lie at the plaintiff’s door, and in that event, much less could the item of $1000 for loss of the wife’s services be entertained. And in considering the counter-claim, we must regard it as a whole, just as the defendant has presented it to us, in its own entirety of $1495.

In the case of Weiner v. Schwartz, 87 Pa. Superior Ct. 551, the counterclaim was allowed, but it is to be noted in that case that the amount of it was fixed and fully determined, being the sum paid out for a new boiler, the old one being worthless. We think there is a great difference between the counterclaim in- that case, and the one under consideration.

And now we pass on to the consideration of the other objection to the counter-claim, viz., that it is barred by the Statute of Limitations. Counsel for the defendant takes the position that this counter-claim can be presented within six years under the provisions of the Act of March 27, 1713, 1 Sm. Laws, 76, while counsel for the plaintiff claim it can be presented only under the provisions of the Act of June 24, 1895, P. L. 236, or within two years. The injuries complained of by the defendant to his wife.occurred on or about May 31, 1924, when her right hand was amputated by Dr. M. L. Raemore as the operating surgeon, and Dr. A. R. Kirch as the anaesthetist, the plaintiff taking no part in the operation. We might well ask, if the operation was performed by two other physicians, the plaintiff taking no part in it, as alleged in the counter-claim, how is he to be held responsible for any malpractice, if any there was? This thought is, however, somewhat afield from the question under consideration at this point in the proceedings.

In the case of Henkel v. Beitsch et al., 22 Dist. R. 895, it is clearly held by Judge Holt, of Beaver County, that injuries, not resulting in death, by the malpractice or negligence of a physician must be brought within two years. The injuries complained of by the defendant in this case are plainly injuries to the person. What is the difference whether the injuries are produced by a wreck of a railroad train, or by an automobile collision, or by striking a person with a bludgeon or with a fist or with any other instrument, or by cutting with a knife or surgeon’s instrument? We fail to see any difference, and think the limitation in the case at bar would run under the provisions of the Act of June 24, 1895, P. L. 236. To the same effect is the case of Boinski v. Penman, 9 D. & C. 496, decided by Judge Rossiter, of Erie County, in which it is held that an action for malpractice for treating teeth, brought more than two years after the occurrence of the acts complained of, is barred by the Statute of Limitations.

We have before us the case of Boyd v. Snyder, 207 Pa. 330, but we do not think this case cuts nearly as close to the line of controversy as the last two cases cited. That was a case of malicious prosecution, and the question up for decision was as to the regularity of the issuance of legal process. That is not the question in the case at bar. We have before us the alleged malpractice of a physician alleged to be acting under his best professional skill, which is denied. And then we have the case of Enterline v. Miller, 27 Pa. Superior Ct. 463, which was an action against an attorney for negligence. But in that case no personal injuries were sustained. The client of an attorney may have lost his money, hut no injuries to his person were sustained. We do not think that case applicable. There is quite a difference between injuries to one’s person and injuries to the pocketbook. We think the injuries complained of in the defendant’s counter-claim are for personal injuries, and in the limitation of action fall under the provisions of the Act of 1895, swpra, and must be brought within two years from the date of their occurrence.

And the counter-claim must be such as would be entertained if brought by the defendant against the plaintiff and set up in the statement. In other words, it must he such that if the positions were reversed and the defendant was the plaintiff, he could set up what now is his counter-claim as his statement of claim. The same requirements are applicable to both.

The counter-claim set up by the defendant can be introduced in the trial of the case to defeat the plaintiff’s recovery, but not as a claim for damages in which there might be a verdict in money for the defendant, for both reasons assigned by the plaintiff.

And now, to wit, Sept. 16, 1929, the' plaintiff’s reply raising questions of law is sustained and the counter-claim of the defendant is stricken from the records of this case, in so far as it relates to a claim for damages to be recovered in this suit. An exception is noted for the defendant and a bill is sealed.

From A. Francis Gilbert, Middleburg, Pa.


author: Fleming, P. J.,

text:
    Commonwealth v. Patton Township Supervisors.

      N. B. Spangler and Ivan Walker, for petitioners.

      Ellis L. Orvis, W. D. Zerby and A. C. Dale, for respondents.
    Aug. 5, 1929.
   Fleming, P. J.,

— This is a proceeding brought under the provisions of section 192 of the Act of July 14, 1917, P. L. 840, commonly known as “The Township Code.” The provisions of such section are as follows:

“If any township officer in any township of the first or second class refuses or neglects to perform his duties, the Court of Quarter Sessions, upon complaint in writing by twenty-five citizens, owners of real estate residing in the township or district, may issue a rule upon such officer to show cause why his office should not be declared vacant and another appointed in his stead. Such rule shall be made returnable not less than two weeks from its date of issue. Upon hearing, and proof that the facts alleged in the complaint are true, the court may declare the office vacant and appoint another in his stead, to hold office during the term of the officer deposed.”

The petition alleges that the defendants, Supervisors of Patton Township, have neglected and refused, and still neglect and refuse, to perform their duties, in that they have neglected to keep the public roads in such reasonable repair as to make them reasonably passable; that they have neglected to house the road machinery belonging to the township, causing the same to become practically useless through such exposure. A complaint is also voiced against the erection of a township house.

The terms of Supervisors John W. Blair and J. W. Hartsoek have long since expired and that of Supervisor A. C. Thomas will shortly expire. The determination of this matter has been postponed from time to time, due, in part, to the many changes which have occurred in the personnel of this court, as well as by the acts of the parties themselves. We now dispose of the matter in order that it may be finally concluded, and to dispose of the costs which have accrued.

We shall omit from our consideration in the instant action the matter of the erection of the town-house, as such will be considered and disposed of In re Appeal by Supervisors of Patton Township from Report of Auditors, filed March 31, 1926, No. 161, May Term, 1926, Court of Common Pleas of Centre County. The building of this town-house does not in any way constitute a neglect or refusal to perform their duties on the part of the defendants. It, if anything, can be construed only as an exceeding of authority by them — not a neglect or refusal. This will be disposed of, however, in the collateral proceeding mentioned. [See next case.]

The question of fact to be determined by us is, therefore: Did these defendants, as supervisors, neglect or refuse to perform their duties (1) by neglecting to keep the public roads in such reasonable repair as to make them reasonably passable; and (2) by allowing the road machinery to be exposed to the weather and thus depreciate to no value?

We have carefully read and considered the testimony taken in this case and are of the opinion that there was no neglect or refusal to perform the duties of supervisors by these defendants. It may have been that the things which they did do were not such as to meet with the approval of the majority or that they have left undone things which others would have done under like circumstances. There is no evidence, however, of any gross abuse of discretion by these defendants.

It must be borne in mind that the testimony shows that there were thirty-two miles of roadway to be cared for by the township and that the gross amount of the road duplicate was $2700. That these defendants actually did work upon these roads is admitted. The testimony only goes so far as to say that in the seasons when country roads are universally in bad condition through natural causes, some persons were unable to pass over them, while others were able to get through. At other times the roads were rough but passable. That there were times when snow was deep and perhaps drifted in places and that as a result the roads were temporarily impassable is no indication of a misfeasance by these defendants.

The explanation that the work of building a shed for the machinery was halted when opposition arose in connection with the town-house indicates merely that the defendants allowed themselves to be intimidated, in a degree, by the petitioners or those citizens who are represented by the petitioners in the instant action. There is no positive evidence to show the value of the machinery, either before or after the alleged misfeasance by the defendants. The burden is on the petitioners, and this burden has not been met.

In short, it appears clearly from the testimony, it being admitted by a number of witnesses for the petitioners, that the basic cause of this proceeding was the dissatisfaction of the parties with the act of the supervisors in erecting the town-house. As a result, the opportunity to dismiss the supervisors by means of section 192 of the Township Code was appealing. The petitioners, however, have not, upon hearing, shown proof that the facts alleged in the complaint are true. We could not, therefore, even if all the defendants were still in office, declare such offices vacant and appoint others in their stead.

And now, Aug. 5, 1929, after due consideration, the proceedings are dismissed, at the cost of the petitioners.

Prom S. D. Gettig, Bellefonte, Pa.


text:
    Patton Township Auditors’ Report.

      N. B. Spangler and Ivan Walker, for appellants.
    No appearance for the township.
    Aug. 8, 1929.
   Fleming, P. J.,

— The Auditors of Patton Township, by their report filed March 31,1926, have surcharged John W. Hartsock, A. C. Thomas and John W. Blair, the then supervisors of such township, in the sum of $785.30, consisting of two items, to wit: (1) Paid to O. A. Harris for hauling, $175; and (2) paid for township house, $610.30. The supervisors have appealed, and the matter is now before the court.

There is no merit in the surcharge of the item of $175 for hauling. The testimony taken in Com. v. Patton Township Supervisors, 13 D. & C. 131 (Court of Quarter Sessions of Centre County), shows that the supervisors employed O. A. Harris to haul ashes or cinders from Scotia to various parts of the township, in some cases the distance being ten or eleven miles. There was some criticism of the action of the supervisors in this respect, it being contended that such ashes or cinders were not proper for road repairs and that stone should have been used, instead, the haul of the stone being for a shorter distance. There is no evidence, however, showing that the use of these ashes and the employment of Mr. Harris was a gross abuse of discretion on the part of the supervisors. On the other hand, it was testified that ashes or cinders, such as were used by the supervisors, were approved by the State Highway Department in similar cases. The source of supply was Scotia and Mr. Harris was geographically situated so as to haul them. There is ample evidence that a full day’s work was done and that the township received full value for the money expended.

The second and most important item is the item of $610.30, dealing with the erection of the township house. Sections 1220 and 1221 of the Act of Assembly approved July 14, 1917," P. L. 943, provide as follows:

“Section 1220. The commissioners or supervisors of townships of the first and second class may procure a suitable lot of ground, and erect a suitable building. thereon for a town-house in which to hold elections, store road machinery, hold meetings of township officers, and for other township uses.

“Section 1221. For the purpose of procuring a lot of ground and erecting a building thereon, as provided in the preceding section of this act, the commissioners or supervisors may borrow money at a rate of interest not exceeding six per centum and issue bonds therefor. The total indebtedness incurred by any township for such purpose shall not exceed one-half of one per centum of the assessed value of real estate of the township.”

Section 1221, above, was amended by section 3 of the Act of May 16, 1921, P. L. 575, 578, to read as follows:

“Section 1221. For the purpose of procuring a lot of ground and erecting a building thereon, as provided in the preceding section of this act, the commissioners or supervisors may borrow money at a rate of interest not exceeding six per centum and issue bonds therefor.”

In providing for the financing of the road fund, the Act of July 14, 1917, P. L. 887, says:

“Section 421. The board of township supervisors may levy taxes upon all property, and upon all .occupations within the township, made taxable for township purposes, as ascertained by the last adjusted valuation for county purposes, for the purposes and at the rates hereinafter specified, to wit:

“I. An annual road tax, not later than the fourth Monday of March of each year, not exceeding ten mills, unless the board of supervisors by unanimous action shall, upon due cause shown, petition the Court of Quarter Sessions; in which case the Court may order a greater rate than ten mills, but not exceeding ten additional mills, to be levied. All road taxes shall be collected in cash.

“IV. An annual tax so long as necessary, not exceeding fifty per centum of the rate of assessment for road purposes, for the purpose of procuring a lot and erecting a building thereon for a town-house, and for the payment of indebtedness incurred in connection therewith.”

Section 421 is amended by the Act of May 16,1921, P. L. 575, 577, which adds a proviso to subdivision IV as follows: “Provided, the total indebtedness for the payment of which any such tax shall be levied shall not exceed one-half of one per centum of the assessed value of real estate in the township.”

It is to be noted that this last-named amendment is the same provision which was removed from section 1221 by the amending Act of 1921. Counsel for the auditors cites for our consideration the sections pertaining to the collection of taxes and the payment of compensation to the tax collector. These sections are as follows:

“Section 423. The township supervisors shall make or cause a duplicate to be made designating the amount of road' tax levied against each taxpayer of the township, and also duplicates for all other taxes levied and assessed under the provisions of this article, and shall deliver the same to the township collector, together with a warrant for the collection of the same, which taxes shall be collected as follows, namely: To all taxpayers who pay their taxes to the collector before June first of each year, an abatement of five per centum shall be made. All road taxes paid to the collector between June first and October first of each year shall be paid in full; and to all road taxes remaining unpaid on the first of October, in each year, the collector shall add five per centum as penalty for such delinquency, and shall collect said penalty in addition to the tax levied, said penalty to be his compensation for collecting said delinquent taxes.”

This section has been amended by Act of April 30, 1925, P. L. 412, to read as follows:

“Section 423. The township supervisors shall make or cause a duplicate to be made designating the amount of road tax levied against each taxpayer of the township, and also duplicates for all other taxes levied and assessed under the provisions of this article, and shall deliver the same to the township collector, together with a warrant for the collection of the same, which taxes shall be collected as follows, namely: To all taxpayers who pay their taxes to the collector before June first of each year, an abatement of five per centum shall be made. All road taxes paid to the collector between June first and October first of each year shall be paid in full; and to all road taxes remaining unpaid on the first of October, in each year, the collector shall add five per centum as penalty for such delinquency, and shall collect said penalty in addition to the tax levied.”

Section 427 of the Act of July 14, 1917, P. L. 840, reads as follows:

“Section 427. The compensation of the tax collector shall be two per centum on all general road taxes collected prior to the first day of June of each year, and five per centum on all such taxes collected between the first day of June and the first day of October. For the collection of road taxes collected after the first day of October the collector shall receive the penalty added to such taxes, as provided in section four hundred and twenty-three of this act. For the collection of special road taxes and all township taxes other than general road taxes, his compensation shall be five per centum of the amount collected.”

This section is amended by the Act of June 29, 1923, P. L. 916, 918, to read as follows:

“Section 427. The compensation of the tax collector shall be two per centum on all general road taxes collected during the period a discount is allowed, and five per centum on all such taxes collected thereafter. For the collection of special road taxes and all township taxes other than general road taxes, his compensation shall be five per centum of the amount collected."

Counsel for the auditors admit the statutory powers conferred upon the supervisors of townships of the second class, empowering them to procure a suitable lot of ground and to erect a suitable building thereon for a townhouse, in which to hold elections, store road machinery, hold meetings of township officers, and for other township uses. With their further contention that these powers must be exercised in accordance with the statutory provisions conferring them we fully concur, and we have no doubt counsel for the supervisors likewise concur. It also appears that there is no contention that the cost of the town-house in question, and for which the supervisors have been surcharged, is in excess of one-half of 1 per centum of the assessed value of real estate in the township. But what are the other statutory provisions? It is here that the point of variance occurs.

The auditors contend that the provisions of section 1221 of the Act of July 14, 1917, P. L. 943, as amended by section 3 of the Act of May 16, 1921, P. L. 575, 578, make it mandatory upon the supervisors, when they elect to build such town-house, to borrow money at a rate not exceeding 6 per centum and to issue bonds therefor. It is further contended that section 421, subsection IV of the Act of July 14, 1917, P. L. 943, as amended by the Act of May 16, 1921, P. L. 575, 577, further makes it mandatory upon such supervisors to levy a special annual tax not exceeding 50 per centum of the rate of assessment for road purposes, in order to retire the bonds and to provide for the interest and other charges accruing from such bond issue. In other words, we view the contention of the auditors to be that, notwithstanding any sufficiency or surplus in the general road funds, the supervisors cannot use such moneys for the erection of a town-house, but that they are compelled, under the statute, to borrow the necessary money, issue bonds therefor and to levy an annual tax to care for the retirement of these bonds and the payment of interest and other charges thereon.

In considering the validity of this contention, we must note that both section 1221 and section 421 involve the use of the permissive word “may;” that is to say, the supervisors “may” borrow such money and issue bonds therefor and “may” levy the special tax in question. Is this word to be interpreted ill a mandatory sense or does it involve merely the discretion of the supervisors? This is an important question to be considered at this point in our discussion. If it is mandatory, then, the supervisors not having complied with such mandate, the surcharge should be permitted to stand. On the other hand, if it involves merely a discretion on the part of the supervisors, and there has been no gross abuse of this discretion, it must be concluded that they have not offended against any statutory provision and the surcharge should not be allowed.

There is a marked distinction between a discretion to exercise a power and a discretion to determine only whether the occasion for it has arisen. Such a distinction must be drawn here. The legislature, recognizing the need for such a town-house, empowered the supervisors to build such a building. The erection of any structure involves the expenditure of money. Money, among municipal corporations, springs from the taxpayer. While generally it is found that a deficit exists, or that all the worth-while objects cannot be attained with the funds available, yet it sometimes occurs that a surplus exists, or, by the practice of economy and the. exercise of good business judgment, “certain desirable things can be obtained for the public. Special taxation, from a standpoint of public policy, should always be avoided if possible. Special taxation should be resorted to only when the benefits to be received therefrom outweigh the burden upon the citizen. We feel that these conclusions are so universally accepted as correct that it is reasonable to infer that the legislature, in enacting section 421, subsection IV, did not intend to make it mandatory that when every town-house was built the supervisors should borrow the money to pay for the land upon which it was built, and for the cost of its erection. The use of the word “may” in the sections under consideration did not confer upon the supervisors a discretion as to whether or not they should exercise the powers therein provided for in the event they had decided to build a' town-house, but it did confer the right tó determine whether the occasion for their use had arisen. We find nothing in the law which holds that the funds received from taxes levied and assessed for general road purposes cannot be used for such purposes if found sufficient; The town-house contemplated by the act was an incident to proper road administration in the township. It provided a place where township meetings could be held. It had in mind the protection of township property, especially that property used in the care of the roads. It considered the use of such building for “all township purposes.” The building of such a town-house is included, therefore, in “general road purposes,” pnd the general road tax is a fund from which payment can be made for such building if sufficient moneys exist to pay for the same without impairing the efficiency of road repair. The legislature by its use of the word “may” vested in the supervisors the discretion as to whether such funds did exist in the general road fund. If, in the proper exercise of their discretion, they decided that a town-house could be erected from the general fund, there was no mandate which compelled them to borrow the money, issue bonds and levy a special tax.

Endlich on the Interpretation of Statutes, § 311, page 425, in speaking of this distinction between a discretion to exercise a power and a discretion to determine only whether the occasion for it has arisen, says that it is “illustrated by the construction of the enactment that justices may, if they think fit, issue a summons upon an information laid before them. This power is so far discretionary that they may grant or refuse the summons according as they judge, in the honest exercise of their discretion, that a prima facie credible case is shown for it; but its exercise is imperative in the sense that if their opinion is that such a case is shown, it is not competent to them to refuse to exercise it on extraneous grounds, such as that the prosecution is inadvisable.”

Further, in Endlich on the Interpretation of Statutes, § 311, page 426, we find: “In one sense, indeed, a power is never obligatory when the discretion of its depository is left to determine whether the occasion for its exercise has arisen; for a superior court can only require him to exercise his discretion, but cannot direct how he shall exercise it.”

Counsel for the auditors contend that because section 427 of the Act of July 14, 1917, P. L. 840, as amended by the Act of June 29, 1923, P. L. 916, 918, makes a distinction as to the compensation to be received by the tax collector from taxes collected for general road purposes and that for special road taxes collected, there would be a confusion or blending of moneys due the township and that we should, therefore, infer that general road taxes are not available for the purchase of land and the erection thereon of a townhouse. The contention that there is no provision for a delinquent- penalty to be added in the case of special taxes is also cited as a reason why general road taxes cannot be used for the purposes now under consideration.

Section 421 provides for “an annual road tax.” The act does not specify that every dollar of this tax shall be used in the building or repair of roads. Machinery is needed for such purposes, and there are none who would seriously contend that the supervisors had no power to use the general road taxes for the purchase of equipment. If supervisors can expend money from general road taxes for equipment, they can spend like moneys for a place in which to house such equipment. In the administration of road affairs records must be kept, and there are none who would seriously contend that the supervisors could not purchase a minute book, stationery and supplies for the keeping of such records. If supervisors can expend money from general road taxes for such record-keeping and administrative supplies, they can spend like moneys for a place in which to meet and take the proper corporate action which is to be embodied in such records. “An annual road tax” is provided for in section 421, which moneys are to provide, if sufficient, for the general needs of the township road district.

Section 423 of the Act of 1917, supra, directs the making of a road duplicate as well as duplicates for all other taxes levied and assessed under the provisions of the article of which section 423 is a part. This alone presents no unusual circumstance. Municipalities have long since levied taxes for their general purposes, for light, for water, for sinking funds and for many other purposes specifically authorized by law. While the word duplicate is used in a singular sense, the fact remains that one book contains the particular amount levied and assessed against each taxable for each separate purpose. The one book is delivered to the tax collector with the warrants from each taxing authority and the sums paid to the collector are receipted for in toto, each item being separately set forth on his receipt and a separate record thereof kept by him.

Section 423, supra, originally provided that when road taxes became delinquent a penalty of 5 per centum should be added — we pause here long enough to comment on the fact that the use of the word “road taxes” at the conclusion of section 423, as originally enacted and as found in the section as amended, may as aptly be construed to mean all taxes levied and assessed by the road district and to include special as well as general taxes, as well as to include merely the general road taxes. We need not, however, pass upon such question here — and that the 5 per centum penalty should be the tax collector’s compensation for collecting said delinquent taxes. The Act of April 30, 1925, P. L. 412, however, in amending section 423, removed the provision that the 5 per cent, penalty should be the tax collector’s compensation. This compensation was definitely determined by section 427 of the Act of 1917, as amended by the Act of June 29', 1923, P. L. 916, 918, which fixes the commission of the collector at 2 per centum of all general road taxes collected during the discount period and 5 per cent, thereafter. On special road taxes and all other township taxes the compensation is 5 per centum of the amount collected. We fail to find anything arising from these provisions, as to the collector’s compensation, which would lead us to a conclusion that a town-house can be built and paid for by a special tax alone. Any confusion of moneys which would arise would be attributable solely to the collector’s failure to properly set forth the items on his remittance or to improper accounting by the supervisors after such moneys have been received. All this can be avoided by ordinary intelligent bookkeeping.

We are, therefore, of the opinion, to summarize our findings, that the legislature, by the several enactments referred to, intended to vest in the supervisors the power to purchase land for and to erect thereon a town-house in which to hold elections, store road machinery, hold meetings of the township officers, and for other township purposes. The discretion as to whether such building be erected was left entirely with the supervisors. Having decided to erect the same, they can be surcharged therefor only when gross abuse of discretion has been shown, and which is not present here, or where it has been shown that they have failed to comply with other statutory provisions. It was not the intent of the legislature to vest a discretion to exercise the powers enumerated in these subsequent statutory provisions, but to vest a discretion to determine when the occasion for the exercise of such powers arose. The supervisors in the instant case, upon their election to build the town-house, determined that there were sufficient moneys in the general road fund with which to pay for the same, and they paid for it in such manner. When it was thus paid for there was no occasion to borrow money, issue bonds or to levy a special tax. The power to borrow, the power to issue bonds and the power to levy a special tax not greater than one-half of the general road tax was given these supervisors by the legislature. The use of the word “may” gave them, in addition, the discretion as to whether it was necessary for them to exercise the powers conferred. They determined that it was not necessary, so long as funds were available from the general road fund, and we concur with them in their decision. It would have been quite unwise to plunge the township into debt and to add extra taxation while there was money on hand with which to pay cash.

That elections have not been held in the town-house erected; that the road machinery has not been stored within it; that meetings of township officers have not been held there, or that it has not been used for other township purposes does not enter into the question of validity of the surcharge here. We have not considered the contentions which have racked Patton Township as to where its elections should be held — such is a collateral matter to be determined when proceedings are properly had. We have not considered the sufficiency or the insufficiency of the structure erected as a town-house — that, too, is a collateral matter. We are concerned here solely with two questions, viz.: (1) Did the supervisors have power to erect a town-house and to acquire land therefor? It is admitted on both sides that such power existed. (2) Did such supervisors comply with the statutory provisions relating to the same? For reasons noted above, we are of the opinion that they have fully complied therewith. Therefore, we must conclude that the supervisors were improperly surcharged with the amount expended for such building, to wit, $610.30.

And now, Aug. 8, 1929, the appeal of the supervisors is sustained and the Auditors of Patton Township are directed to allow the credits claimed by the supervisors and with which they have heretofore been surcharged, to wit, an item of $175 to O. A. Harris for hauling, and an item of $610.30 for money expended in the erection of a town-house. Costs to be paid by appellees.

From S. D. Gettig, Bellefonte, Pa.


author: Drew, J.,

text:
    Connors’s Petition.

      William H. Coleman, for petitioners; A. W. Powell, for respondent.
    June 5, 1929.
   Drew, J.,

This matter is before us on petition by Peter Connors and Bert Keller, police officers of the City of Pittsburgh since Feb. 23, 1926, upon which a rule was granted upon Robert G. Woodside, Controller of Allegheny County, to show cause why all the fees mentioned in the petition should not be paid.

The petition represents that these police officers were witnesses for the Commonwealth in the case of Com. v. Nau, at No. 148, June Sessions, 1926, which case was tried before a jury and, on Dec. 13, 1928, a verdict of “not guilty” rendered, and the costs thereon became legally payable by the County of Allegheny.

The petitioner, Peter Connors, alleges that he was in attendance before the grand jury and court in connection with said case five different days and thereby became entitled to witness fees for said service as follows: Two days at $3 per day and three days at $2 per day; that he became lawfully entitled to mileage for said service for forty miles at 3 cents per mile, or $1.20; and, in addition thereto, paid for probating the costs to which he thus became legally entitled in the sum of 50 cents, to which sum he is entitled to be reimbursed by the said County of Allegheny, making a total due and payable to him by the County of Allegheny of $13.70.

The petitioner, Bert Keller, alleges that he was in attendance in court in connection with said case on four different days and thereby became legally entitled to witness fees as follows: Two days at $3 per day and two days at $2 per day; that he became entitled for said service to mileage at 3 cents per mile for forty miles, or $1.20, and that he paid to the County of Allegheny for probating costs the sum of 50 cents and is entitled to be reimbursed for said sum, making a total amount due and payable to him by the said County of Allegheny of $11.70.

The petitioners allege that they probated said costs on Dec. 13, 1928, and thereupon made demand upon Robert G. Woodside, Controller of the County of Allegheny, for payment of the respective sums due each of the petitioners, and payment thereof was refused by the said controller on account of similar costs having been heretofore refused by a former controller and on account of an undetermined action still pending to determine such payment, and he refused, and still refuses, to pay the petitioners, or either of them, the said amounts to which each of the petitioners claims they are justly and legally entitled.

The Controller of Allegheny County, Robert G. Woodside, has agreed, in order that the question may be speedily determined by this court, to waive the issuance and service of a rule, all technicalities and immaterial matters of fact and consent to the determination of the case upon the question of law as to “whether a police officer, receiving a monthly salary from a municipality within the county, is entitled, individually and in his own right, to witness fees for attendance at courts of the county during one or more days of the said month for which salary was received from said municipality within the county, as additional compensation to said police officer.”

This question fairly states the issue in this case and raises- the only question for our decision.

The Act of Assembly of July 14, 1897, P. L. 266, provides: “It shall not be lawful for any such policeman to charge or accept any fee or other compensation in addition to his salary for any service rendered or performed by him of any kind or nature whatsoever pertaining to his office or duties as a policeman, except public rewards and legal mileage allowed for traveling expenses.”

This part of the Act of 1897 was directly passed upon in the case of Templeton v. Williams, 39 Pa. Superior Ct. 272, in which it was decided, on April 19, 1909, that the Act of July 14, 1897, P. L. 266, does not make it unlawful for a police officer, who has made an arrest in a criminal case -and who testifies upon the trial of the case, to demand the statutory witness fee. This is a flat decision on the point raised here and rules the question before us in favor of the petitioners.

The same question was decided by this court at a much earlier date, on Dec. 8,1900, of record in Miscellaneous Docket No. 16, at page 24, and marked No. '34, December Sessions, 1900, in which, on a petition filed by Sol Coulson, then Assistant Superintendent of Police of Pittsburgh, the court ruled that, having appeared as a witness before the grand jury and upon the trial in court, he was entitled to the legal witness fees.

It would seem, therefore, to be without any doubt that a police officer is entitled to usual witness fees when he appears as a witness in a case in court. This is as it should be, because public policy requires that the arresting officer subpoena the witnesses, produce them in court and interest himself in the preparation of the trial of the case on the side of the Commonwealth. This certainly is not a service for which he is compensated as a policeman. These men have the duties of their offices to perform; a great many of them are patrolmen working at night and compelled very frequently to be in court during the day because of cases in which they have made arrests being on trial. It is too much to expect that they should keep up the duties of their offices, spend their time in court, pay their mileage to and from court, and be denied ordinary witness fees. If their interest is to be maintained, and it is absolutely necessary that it should be, they must receive compensation for this extra labor, and that compensation which has been provided by law is the usual compensation given to all citizens who appear as witnesses in these cases.

Order.

And now, June 5, 1929, the rule heretofore granted upon the above-mentioned petition upon Robert G. Woodside, Controller of Allegheny County, to show cause why the fees mentioned in said petition should not be paid is now made absolute. The Controller of Allegheny County is herewith ordered to pay all witness fees of police officers duly and legally probated.

From William J. Aiken, Pittsburgh, Pa.


author: Niles, P. J.,

text:
    York County v. Fry et al.
    Before Niles, P. J., and Sherwood, J.

      George S. Love, for plaintiff.

      Robert C. Fluhrer and James G. Glessner, for defendants.
    May 6, 1929.
   Niles, P. J.,

— The motions for judgment for want of a sufficient affidavit of defense in these two actions are based upon the same legal situation, were argued together, and will be so considered.

It is admitted by the pleadings that on May 17, 1926, a judgment was entered in the Court of Common Pleas of York County, to No. 152, April Term, 1925, in favor of the County of York, against Arthur G. Fry, county treasurer, for $3615.51; and on May 17, 1926, another judgment was entered to No. 174, April Term, 1926, in favor of the County of York and against Arthur G. Fry, county treasurer, for the sum of $3501.35. From these two judgments appeals were taken to the Supreme Court and perfected by bonds in each case, dated June 1, 1926, on both of which bonds William E. Hoffacker and J. A. Stoner, M. D., became sureties for Arthur G. Fry, county treasurer, the defendant. The condition of each bond was the usual one, that the appellant prosecute the appeal with effect and pay the amount finally adjudicated to be due. The appeals were heard and both of said judgments were affirmed by the Supreme Court with an opinion filed June 25, 1927, and reported in 296 Pa. 316. The judgments not having been satisfied by the defendant, Arthur G. Fry, county treasurer, these actions were brought upon the appeal bonds.

The affidavits of defense set up as reasons for non-liability of the sureties upon the appeal bonds facts relative to the bond of the county. treasurer, dated Dec. 17, 1923, in the sum of $156,606, with the ¿Etna Casualty and Surety Company as surety for Arthur G. Fry, when he took office on the first Monday of January, 1924, for a term of four years as county treasurer, for the faithful performance of the duties of his office and a just accounting of all moneys that might come into his hands on behalf of the County of York, etc. It is set up in the affidavit of defense that, after the affirmance of the judgments in favor of the county and against the county treasurer, the Commissioners of the County of York, on July 8, 1928, entered into an agreement with the ¿Etna Casualty and Surety Company to proceed against Arthur G. Fry and his appeal bond sureties, and not to proceed against the ¿Etna Casualty and Surety Company, for the amounts of the judgments appealed from, unless the county should be unsuccessful in collecting from the treasurer and the sureties on his appeal bonds. It is claimed by the defendants that, this arrangement between the commissioners and the ¿Etna Casualty and Surety Company so changed and altered the situation as to result in absolving the defendants from liability on their appeal- bonds. It is further alleged in the affidavit of defense that, at the time the appeal bonds were filed, Walter B. Hays, Esq., then county solicitor for the plaintiff, in approving the sureties on said appeal bonds, stated that the plaintiff was not looking to the appeal bonds or the sureties thereon if the judgments should be affirmed by the Supreme Court, but would collect the amount of said judgments from Arthur G. Fry or the ¿Etna Casualty and Surety Company on the county* treasurer’s bond furnished by it.

Argument was had before the court in banc upon these motions.

We are of opinion that there is nothing alleged in the affidavit of defense which, if admitted, would absolve the defendants, the sureties, or the county treasurer from the obligation arising upon the bonds executed by them. In order to enable the county treasurer to make his appeal a supersedeas, the-defendants bound themselves to pay the amounts finally adjudicated. The judgments appealed from have been finally adjudicated by the affirmance thereof by the Supreme Court. We have been referred to no authority, and. it does not seem consonant with principle or reason, that the obligation of the sureties clearly expressed in the words of the appeal bonds could be legally changed, limited or discharged by the statement of the county solicitor, alleged, in the affidavit of defense, that if the judgments would be affirmed, the county would collect from the county treasurer and the ¿Etna Casualty and Surety Company on the treasurer's bond furnished by it, and would not look to the sureties on the appeal bonds, the defendants in these cases.

The argument for defendants is based upon the theory that the sureties on the appeal bond were co-sureties with the iEtna Casualty and Surety Company, the surety on the county treasurer’s original bond, or were the sureties to the county for the performance by the iEtna Company of its obligations under the county treasurer’s original bond; and that the sureties on the appeal bond were entitled, upon payment of the appeal bonds by them, to be subrogated to some rights of the county against the iEtna Company. This theory does not seem to us to be valid. The sureties, defendants in these cases, did not covenant to pay to the county the amounts of the judgments if affirmed and if not paid by Fry or the sureties upon his general treasurer’s bond. Their obligation was to pay to the county what Fry should be finally adjudicated liable for. Their payment would be Fry’s payment, and to that extent the iEtna Company would be relieved from liability upon the general bond, the obligation of which was that the iEtna Company would pay whatever should be found due by the treasurer to the county upon final accounting. The appeal bonds should reasonably be construed as additional resources for the collection by the county from the treasurer for these sums due the county. The result would be to relieve the treasurer’s general surety from liability to that extent. As between the surety on the treasurer’s general bond and these defendants, the sureties on the appeal bond, the latter are primarily responsible for payment in default of payment by Fry, the treasurer. If this analysis is correct, no right of defendants was affected by the arrangement of July 8, 1928, between the iEtna Company and the county commissioners set forth in the affidavit of defense.

And now, to wit, May 6, 1929, in No. 138, January Term, 1929, the motion of Feb. 11, 1929, for judgment for want of a sufficient affidavit of defense is granted and the rule issued thereon made absolute, and judgment is entered' in favor of the plaintiff and against the defendants for $3615.51, with interest from May 17, 1926, with costs of suit; and in No. 139, January Term, 1929, the motion of Feb. 11, 1929, for judgment for want of a sufficient affidavit of defense is granted and the rule issued thereon made absolute, and judgment is entered in favor of the plaintiff and against the defendants for $3501.35, with interest from May 17, 1926, with costs of suit.

From Richard E. Cochran, York, Pa.


text:
    Snyder’s Case.

      Jay G. Weiser, for rule; A. Francis Gilbert, contra.
    Oct. 10, 1929.
   Potter, P. J.,

— This is a petition and a rule on William S. Snyder to show cause why he should not be removed from the office of Supervisor of Public Roads in Union Township, at the instance of thirty-four citizens of that township, “on account of neglect of duty, not properly repairing said roads when most necessary therefor, leaving roads almost impassable for a long period of time, and some of them never good condition,” quoting from the petition presented to us. We can find no evidence in the notes of testimony that “some of them are never in good condition,” but we have some evidence that some of the roads in Union Township are at times not in good condition, this occurring mostly in the spring of the year, when the frost leaves the ground, or during times of heavy rains.

The most of the testimony in support of the rule in reference to a bad condition of the roads has reference to several roads in Union Township, in which there occur winter springs, sink-holes and swampy wet land. It is to be expected during certain seasons of the year, in regions like the one under contemplation, that bad mirey places in township roads may occur. This universally happens in township roads, and in many instances the road supervisors are to be congratulated upon keeping them in as good condition as they are. Of course, they must be kept and maintained in a fairly passable condition for public travel. This, however, does not mean that they must be kept with a smooth surface like a cement or a macadam road.

We have six witnesses who testify against Snyder, and ten for him. We are not controlled by the number of witnesses on either side, but in this case this fact should receive some consideration, but in reading the testimony we find the complaints to be centered chiefly on swampy roads, or on roads by nature boggy, and nearly all the witnesses, both pro and con, unite in saying that during the summer and fall months all the roads are fairly passable.

In all the testimony we fail to find any evidence tending to show that Snyder wilfully neglected the upkeep of roads in this section of the township. True, perhaps he might have done more, when he might then be open to criticism by his constituents. He might be criticised if he did or did not, as often happens.

The office of road supervisor is not a pleasant one, and in each instance we find those who commend as well as those who find fault, no difference what may be done, and if each supervisor hearkened to each citizen of his township, he would please no one, with the wide diversity of opinion prevailing.

In passing upon the events of this proceeding we are led to the belief that there are several clans or cliques in this township, one of which is for, and the other against, Snyder. We take sides with neither, and can well say that the courts are not the place to settle these differences. Snyder must have been elected to his office by a majority of the voters, else he would not be in office. They apparently placed confidence in him or they would not have voted him in office. And in the number of witnesses called we find a corresponding majority of them saying that he has done fairly well. Then, in the absence of flagrant abuse of official duty, why should we disturb their choice in the exercise of the office in which they have placed him? At the election polls is the place to express dissatisfaction regarding his official career and not in the courts.

We cannot find from the testimony submitted to us that he has been flagrantly disobedient of his official 'duties. Each public officer is persumed to have acted faithfully and well, and this presumption must be overcome by a preponderence of evidence, which has not been done in this case. The burden rests on the petitioners, and with six against him and ten for him, we do not think this burden has been met.

And now, to wit, Oct. 10, 1929, the rule is discharged